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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________________________________________________________________________________________________
FORM 10-K
__________________________________________________________________________________________________________________________
| | | | | |
| ☒ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2022
OR
| | | | | |
| ☐ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Commission File Number 001-34652
__________________________________________________________________________________________________________________________
SENSATA TECHNOLOGIES HOLDING PLC
(Exact name of registrant as specified in its charter)
__________________________________________________________________________________________________________________________
| | | | | | | | | | | | | | | |
England and Wales | | 98-1386780 | |
(State or other jurisdiction of incorporation or organization) | | (I.R.S. Employer Identification No.) | |
529 Pleasant Street, Attleboro, Massachusetts, 02703, United States
(Address of principal executive offices, including zip code))
+1 (508) 236 3800
(Registrant's telephone number, including area code)
__________________________________________________________________________________________________________________________
Securities registered pursuant to Section 12(b) of the Act:
| | | | | | | | |
| Title of each class | Trading Symbol(s) | Name of exchange on which registered |
| Ordinary Shares - nominal value €0.01 per share | ST | New York Stock Exchange |
Securities registered pursuant to Section 12(g) of the Act: None
__________________________________________________________________________________________________________________________
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☒ No ¨
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No ☒
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ¨
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of "large accelerated filer," "accelerated filer," "smaller reporting company," and "emerging growth company" in Rule 12b-2 of the Exchange Act.
| | | | | | | | | | | | | | |
| Large accelerated filer | ☒ | | Accelerated filer | o |
| Non-accelerated filer | o | | Smaller reporting company | ☐ |
| | | 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. ¨
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☒
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒
The aggregate market value of the registrant’s ordinary shares held by non-affiliates at June 30, 2022 was approximately $6.4 billion based on the New York Stock Exchange closing price for such shares on that date.
As of January 27, 2023, 152,490,853 ordinary shares were outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Part III of this Report incorporates information from certain portions of the registrant’s Definitive Proxy Statement to be filed with the Securities and Exchange Commission within 120 days of the registrant's fiscal year ended December 31, 2022.
TABLE OF CONTENTS
Cautionary Statements Concerning Forward-Looking Statements
This Annual Report on Form 10-K (this "Report") includes "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements may be identified by terminology such as "may," "will," "could," "should," "expect," "anticipate," "believe," "estimate," "predict," "project," "forecast," "continue," "intend," "plan," "potential," "opportunity," "guidance," and similar terms or phrases. Forward-looking statements involve, among other things, expectations, projections, and assumptions about future financial and operating results, objectives, business and market outlook, megatrends, priorities, growth, shareholder value, capital expenditures, cash flows, demand for products and services, share repurchases, and Sensata’s strategic initiatives, including those relating to acquisitions and dispositions and the impact of such transactions on our strategic and operational plans and financial results. These statements are subject to risks, uncertainties, and other important factors relating to our operations and business environment, and we can give no assurances that these forward-looking statements will prove to be correct.
A wide variety of potential risks, uncertainties, and other factors could materially affect our ability to achieve the results either expressed or implied by these forward-looking statements, including, but not limited to, risks related to public health crises, instability and changes in the global markets, supplier interruption or non-performance, the acquisition or disposition of businesses, adverse conditions or competition in the industries upon which we are dependent, intellectual property, product liability, warranty, and recall claims, market acceptance of new product introductions and product innovations, labor disruptions or increased labor costs, and changes in existing environmental or safety laws, regulations, and programs.
Investors and others should carefully consider the foregoing factors and other uncertainties, risks, and potential events including, but not limited to, those described in Item 1A: Risk Factors included elsewhere in this Report and as may be updated from time to time in Item 1A: Risk Factors included in our quarterly reports on Form 10-Q or other subsequent filings with the United States ("U.S.") Securities and Exchange Commission (the "SEC"). All such forward-looking statements speak only as of the date they are made, and we do not undertake any obligation to update these statements other than as required by law.
PART I
ITEM 1. BUSINESS
The Company
The reporting company is Sensata Technologies Holding plc, a public limited company incorporated under the laws of England and Wales, and its consolidated subsidiaries, collectively referred to as the "Company," "Sensata," "we," "our," and "us." We are a global industrial technology company that strives to create a safer, cleaner, and more efficient, electrified, and connected world. We develop, manufacture, and sell sensors and sensor-rich solutions, electrical protection components and systems, and other products used in mission-critical systems and applications that create valuable business insights for our customers and end users. For more than 100 years, we have been providing a wide range of customized solutions that address increasingly complex engineering and operating performance requirements to help our customers solve their most difficult challenges. We serve customers in the automotive, heavy vehicle and off-road ("HVOR"), fleet management, industrial, clean energy, and aerospace industries. We present financial information for two reportable segments, Performance Sensing and Sensing Solutions.
Our sensors are used by our customers to translate a physical parameter, such as pressure, temperature, position, or location of an object, into electronic signals that our customers’ products and solutions can act upon. Our electrical protection portfolio (which includes both components and systems) is comprised of various switches, fuses, battery management systems, inverters, energy storage systems, high-voltage distribution units, controllers, and software, and includes high-voltage contactors and other products embedded within systems to maximize their efficiency and performance and ensure safety. Other products and services we provide include vehicle area networks and data collection devices and software, battery storage systems, and power conversion systems, the latter of which include inverters, converters, and rectifiers for renewable energy generation, green hydrogen production, electric vehicle charging stations, and microgrid applications, as well as industrial and defense applications.
Original equipment manufacturers ("OEMs") are facing ever-increasing mandates, due to regulation and consumer demand, to make their products safer, cleaner, and more efficient, electrified, and connected. Our products and solutions are being used by our customers in applications to address these demands, including those that help: industrial customers introduce new energy-efficient and environmentally friendly motors, compressors, and heating, ventilation and air conditioning ("HVAC") systems; transportation customers to meet the standards of emissions and pollution-control legislation; and fleet managers to proactively monitor the location and performance of their vehicles and to operate more efficiently. We consider these capabilities to be core to our historical success and will continue to be significant drivers of market outgrowth in the future. We use the term "market outgrowth" to describe the impact of an increasing quantity and value of our products used in customer systems and applications above external market growth. It is only loosely correlated to normal unit demand fluctuations in the markets we serve.
We have long-standing relationships with a geographically-diverse base of leading OEMs and other multinational companies. In certain geographic and product markets, where it is more effective and efficient for us and our customers, we use third-party distributors to sell our products. We have had relationships with our top ten customers for an average of 27 years. Our largest customer accounted for approximately 6% of our net revenue for the year ended December 31, 2022.
Business Strategy
Our business strategy involves leveraging certain material growth drivers to deliver products used in mission-critical systems and applications that create valuable business insights for our customers and end users. These growth drivers include (1) the overarching trend related to our core historical business that enables vehicles, industrial equipment, aircraft, and other systems to be safer and more energy-efficient (a trend which we refer to as “Safe & Efficient”) and (2) certain new and emerging technology trends that complement or enhance our existing product offerings (which we refer to as “megatrends”). These megatrends, which are described more fully under the heading Growth Drivers included elsewhere in this Item 1: Business, are significantly transforming the industries in which we operate and are creating greater secular demand for our current and new innovative products, resulting in growth that exceeds end market production growth in many of the markets we serve, a defining characteristic of our company.
We believe the medium- to long-term outlook for internal combustion engine powertrains and industrial equipment will evolve with, and be impacted by, Electrification and other adjacent technologies. Accordingly, we are focusing on expanding our market share on electrified platforms, including sensors, electrical protection components and systems, and battery-energy management systems as full solutions. Many of the components and subsystems we have historically developed and produced will play a significant role in this expansion, but we have and will continue to consider strategic partnerships and acquisitions to
accelerate the growth and transformation of our product portfolio. By entering such relationships, we obtain access to new technologies, expertise, processes, and solutions, which we can leverage with our existing expertise to optimize and expand our product portfolio.
We are seeking to expand our business and accelerate market share in other areas that we believe will experience high growth in the future, such as the deployment of Internet of Things (“IoT”) solutions for light- through heavy-duty vehicles, particularly in fleets. This is driven by the need for smarter and more connected sensors and equipment that collect, analyze, and provide insights into the operations of light- through heavy-duty vehicles to improve its operations, making it more productive and efficient. Within IoT, our principal area of focus is the Sensata INSIGHTS business, in which we deliver data insights across heavy, medium, and light vehicle fleets. Our data-driven insight, connectivity, and prognostics provide solutions that increase overall productivity and operational efficiency.
The table below sets forth the amount of net revenue generated by our end markets, reconciled to total net revenue, for the years ended December 31, 2022, 2021, and 2020:
| | | | | | | | | | | | | | | | | |
| For the year ended December 31, |
| (In thousands) | 2022 | | 2021 | | 2020 |
| Net revenue: | | | | | |
| Automotive | $ | 2,107,651 | | | $ | 2,062,407 | | | $ | 1,751,370 | |
| HVOR | 904,877 | | | 829,852 | | | 508,061 | |
| Industrial, HVAC, and other | 863,854 | | | 793,812 | | | 649,980 | |
| Aerospace | 152,880 | | | 134,735 | | | 136,167 | |
Total net revenue (1) | $ | 4,029,262 | | | $ | 3,820,806 | | | $ | 3,045,578 | |
__________________________
(1) Total revenue for the years ended December 31, 2022, 2021, and 2020 includes approximately $460 million, $261 million, and $165 million, respectively, of revenue related to the Electrification megatrend, portions of which are derived in each of the industries presented above.
Our strategies of leveraging core technology platforms and focusing on high-volume applications enable us to provide our customers with highly customized products at a relatively low cost compared to the systems in which our products are embedded. We have achieved our current cost position through a continual process of migration and transformation to best-cost manufacturing locations, global best-cost sourcing, product design improvements, and ongoing productivity-enhancing initiatives.
Growth drivers
Significant drivers of growth in our business, which are expected to significantly impact our customers and business strategy, include the Electrification and Insights/IoT megatrends, as well as the Safe & Efficient growth trend, each described in more detail below.
Electrification megatrend
Our objective with the Electrification megatrend initiative is to become a leading and foundational player in electrification components and sub-systems across broad industrial, transportation, aerospace, and stationary infrastructure recharging and energy storage end markets and to be a comprehensive solutions provider in select end market segments. These components and solutions will support a future that is more environmentally sustainable and efficient and include (1) clean energy transportation components for electric vehicles, charging stations, and chargers and (2) mission-critical high-voltage components and subsystems combined into high-value energy management or energy storage solutions. Throughout this Report, we use the term “electric vehicles” holistically to reference plug-in hybrid and battery-electric vehicles of all kinds, unless otherwise specified. The Electrification megatrend initiative provides a significant opportunity for us to expand our market share on electrified platforms, including sensors, electrical protection components and systems, and battery-energy power conversion and storage systems as full solutions within all of our end markets in the automotive, HVOR, industrial, material handling, and aerospace industries.
Our transportation addressable markets (automotive and HVOR) are large today and growing, with expectations that they will continue to grow over the next ten years. In addition to transportation applications, manufacturers of material handling equipment, marine vessels, aircraft, and industrial systems are also addressing ever-tightening greenhouse gas emissions regulations and taking advantage of falling battery costs and increasing energy capacities of lithium-ion battery cells to provide electrified solutions to their customers.
Because of the prevalence of internal combustion engine vehicles today, applications in these vehicles make up most of our current transportation addressable markets. As the demand and production of electric vehicles increase in the coming years, we expect our automotive revenue mix to shift more towards electric vehicles. Our average U.S. dollar content in an electric vehicle is expected to expand over the next several years to approximately two times the content that we currently realize on average for internal combustion vehicles, resulting from the broad array of sensors and other components designed into electric vehicles.
We provide many of our innovative and differentiated components, such as those used in braking, tires, and environmental control, from traditional internal combustion engine vehicles for use in electric vehicle applications. Specific to electric vehicles, we also provide and are developing several components that enable the safe and efficient operation of electrified platforms, such as high-voltage electrical protection, advanced temperature and thermal management sensing, highly-sensitive electric motor position, and next-generation current sensing. Thanks to products and services we have added via acquisition, we have expanded our capabilities and reach to provide our customers with not only components but also either the subsystem of assembled components to manage battery charging in the form of a power distribution unit for renewable energy systems and applications or, in certain specialty transportation markets like marine, the full energy storage system, including battery management and a customized battery pack.
Within Electrification, we address the needs of the charging infrastructure necessary to support the electrification ecosystem. In addition, we see opportunities in industrial and grid applications, some of which are nascent today. Sensata is a leading provider of high-voltage electrical protection on electric vehicles and charging infrastructure and we seek to be the partner of choice for HVOR, industrial, marine, and aerospace OEMs transitioning to electrified solutions. We also intend to participate in other areas of the evolving market that enable electrification to become more widespread.
To better pursue clean energy components and system opportunities, in fiscal year 2021, we organized a new business unit in our Sensing Solutions reportable segment, Clean Energy Solutions, which includes products and solutions such as high-voltage contactors, inverters, rectifiers, and battery management systems, that serve the industrial, stationary, and commercial energy conversion and storage end markets. With the fiscal year 2021 acquisitions of Spear Power Systems ("Spear") and Sendyne Corp. ("Sendyne"), we expanded our portfolio to include energy storage systems and electrical sensing products, augmenting our offerings to our existing end markets as well as providing access to new end markets and applications. In addition, our fiscal year 2022 acquisition of Dynapower is a foundational addition to our Clean Energy Solutions strategy. Refer to the discussion under the heading Business Combinations below and in Note 21: Acquisitions and Divestitures of our audited consolidated financial statements and accompanying notes thereto (the "Financial Statements") included elsewhere in this Report for additional discussion of this acquisition.
Insights/IoT megatrend
Our objective within the Insights/IoT megatrend initiative is to become a leader in delivering data-driven insight, connectivity, and prognostics to commercial fleet operators and asset managers, by providing solutions that increase overall operational productivity and efficiency for these customers. The Insights/IoT megatrend initiative addresses a large and fast-growing market opportunity to deliver data insights across heavy, medium, and light vehicle fleets, which require data on the location and operation of their assets to monitor equipment health, lower maintenance costs, optimize operations, and improve safety and performance.
Leveraging Sensata’s long history and expertise in sensor development, Sensata INSIGHTS’ portfolio includes a full-stack offering of sensors, cameras, vehicle area networks, telematics gateways, cloud solutions, and data services. We collect data from cameras and wireless sensors measuring information such as video telematics, tire pressure, cargo capacity, and a variety of other sensing parameters, along with related vehicle system information. We then communicate this valuable data from our telematics and video telematics devices to the cloud via Application Programming Interfaces for integration into our customers’ enterprise systems. Through cloud-based mobile applications and web portals, this data delivers actionable insight to drivers, maintenance workers, and back-office personnel – allowing participants in the ecosystem to proactively monitor the health of their vehicles, conduct proactive maintenance, optimize fleet operations, and enhance driver safety. As an independent third-party technology provider, we serve multiple channels to market, including partnering with telematics service providers, resellers and carriers, and serving fleet operators directly.
With the fiscal year 2021 acquisitions of Xirgo Technologies, LLC and SmartWitness Holdings, Inc. ("SmartWitness"), we expanded our capabilities to provide data insights to transportation and logistics customers through telematics, video telematics, asset tracking devices, and other cloud-based solutions. In addition, the fiscal year 2022 acquisition of Elastic M2M, Inc. ("Elastic M2M") augments our cloud capabilities critical to delivering actionable sensor-based insights, an increasingly important capability in this fast-growing industry segment. Refer to the discussion under the heading Business Combinations
below and in Note 21: Acquisitions and Divestitures of our Financial Statements included elsewhere in this Report for additional discussion of the acquisition of Elastic M2M.
Safe & Efficient
Due to global regulation and societal forces, our customers are facing increasing mandates to make higher-performance products that are more reliable, safe, and efficient. Many customers are shifting their designs to meet these evolving requirements. We will continue to design and manufacture products and solutions for mission-critical, hard-to-do applications that enable our customers to protect the environment and improve quality of life. Examples of applications that fall within this trend include next-generation powertrains, tire pressure monitoring systems ("TPMS”), safety and environmental systems, operator sensing systems, and HVAC variable speed, flow, and air systems.
For example, responding to tightening legislation requirements and proliferating content, we enable vehicle OEMs to improve combustion, reduce tailpipe emissions, and increase fuel economy in both traditional and hybrid vehicles with a combination of sensors, such as pressure, high-temperature, and speed, in next-generation powertrains. In addition, tightening HVOR emissions regulations in the United States, Europe, and China have resulted in increased sensor content in engines and after-treatment. Our differentiated operator controls and systems improve operator productivity and enable simplified, improved, and safer operation, even in harsh conditions. Our TPMS is used in automotive and HVOR OEMs and fleets to eliminate downtime, reduce operating costs, improve fuel efficiency, and create safer driving conditions. Also, HVAC variable systems are the preferred method to meet stringent energy efficiency and environmental regulations. Our pressure and temperature sensors are critical to optimize these systems and enable them to achieve higher levels of efficiency.
Business Combinations
We completed two notable acquisitions in fiscal year 2022, summarized in the table below:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| (In millions) | | | | Segment | | |
| Acquisition | | Date | | Performance
Sensing | | Sensing
Solutions | | Purchase Price | | |
| | | | | | | | | | |
| | | | | | | | | | |
| | | | | | | | | | |
| | | | | | | | | | |
| | | | | | | | | | |
Elastic M2M (1) | | February 11, 2022 | | X | | | | $ | 51.6 | | | |
Dynapower (1) | | July 12, 2022 | | | | X | | $ | 577.5 | | | |
__________________________
(1) Purchase price accounting is preliminary.
Elastic M2M
On February 11, 2022, we acquired all of the equity interests of Elastic M2M, an innovator of connected intelligence for operational assets across heavy-duty transport, warehouse, supply chain and logistics, industrial, light-duty passenger car, and a variety of other industry segments. Elastic M2M primarily serves telematics service providers and resellers, enabling them to leverage Elastic M2M’s cloud platform and analytics capabilities to deliver sensor-based operational insights to their end users. This acquisition augments our cloud capabilities critical to delivering actionable sensor-based insights, an increasingly important capability in this fast-growing industry segment.
Dynapower
On July 12, 2022, we completed the acquisition of all of the outstanding equity interests of DP Acquisition Corp ("Dynapower"), a leader in power conversion systems, including inverters, converters, and rectifiers for renewable energy generation, green hydrogen production, electric vehicle charging stations, and microgrid applications, as well as industrial and defense applications. Dynapower also provides aftermarket sales and service to maintain its equipment in the field. Dynapower is a foundational addition to our Clean Energy Solutions strategy and will complement our recent acquisitions of GIGAVAC, Lithium Balance, Sendyne, and Spear.
Refer to Note 21: Acquisitions and Divestitures of our Financial Statements included elsewhere in this Report for additional information related to our acquisitions.
Performance Sensing
The Performance Sensing reportable segment, which accounted for approximately 74% of our net revenue in fiscal year 2022, represents an aggregation of two operating segments, Automotive and HVOR. It primarily serves the Automotive and HVOR industries through the development and manufacture of sensors, high-voltage solutions (i.e., electrical protection components), and other solutions that are used in mission-critical systems and applications. Examples include those used in subsystems of
automobiles, on-road trucks, and off-road equipment, such as tire pressure monitoring, thermal management, electrical protection, regenerative braking, powertrain (engine/transmission), exhaust management, and operator controls. Our products are used in subsystems that, among other things, improve operating performance and efficiency, contribute to environmentally sustainable and safe solutions, and provide data-driven insight, connectivity, and prognostics to commercial fleet operators and asset managers.
For fleet transportation and logistics customers and end users, we provide hardware and services that enable a variety of end-use applications, including vehicle tracking and on-board vehicle diagnostic data to monitor vehicle health; the provision of vehicle data to enable usage-based insurance offerings; cargo capacity data for trailers that increase the operational efficiency of fleets; video telematics offerings that provide event analysis and in-cab monitoring to prevent and lower the cost of incidents; and visibility to where assets are located across the supply chain.
Customers
Our customers include leading global automotive, on-road truck, construction, and agriculture OEMs, the companies that supply parts directly to these OEMs, known as Tier 1 suppliers, various aftermarket distributors, fleet transportation, and logistics customers. We believe large OEMs and other multinational companies are increasingly demanding a global presence to supply sensors and electrical protection components for their key platforms worldwide. As our customers develop common global electrified platforms to drive scale and efficiency across their global markets, we are well-positioned to serve them with our global manufacturing and technical centers. We also see the growing importance of new ‘startup’ OEMs as market disruptors, and Sensata’s flexibility, speed, expertise, and global footprint provide these new entrants with a supplier/partner capable of meeting their demanding requirements. Fleet transportation and logistics customers demand data-driven insight, connectivity, and prognostics to increase productivity and operational efficiency. We provide all our customers with a worldwide technical, manufacturing presence and service support to enable their success globally.
Markets
The global sensor market is characterized by a broad range of products and applications across a diverse set of market segments. According to third-party data, the global automotive sensor market was $24.4 billion in 2022, compared to $21.3 billion in 2021.
The markets we serve are seeking to provide cleaner, safer, more electrified, and connected solutions. Our solutions are present in a wide variety of transportation systems and subsystems, playing a critical role in ensuring the functionality and safety of a vehicle’s operation. Within the combustion and electrified propulsion architecture, we provide various sensor solutions (e.g., electric motor position, gasoline direct injection, oil pressure monitoring, fuel delivery, and various others) that enable superior functionality, efficiency, and optimized performance while reducing environmental impact. As electrification proliferates, the ability to protect the vehicle systems/sub-systems from high-voltage power sources becomes critical, a need that our electrical protection portfolio (e.g., high-voltage contactors, fuses, high-voltage junction boxes) addresses. Our chassis (e.g., tire management solutions), thermal management (e.g., pressure plus temperature sensing), and safety (e.g., braking and electronic stability control) sensor/product solutions all play critical roles in enabling the safety, improved performance, and increased efficiency and range of both electrified vehicles and internal combustion engine powertrains.
Applications we serve require close engineering collaboration between us and the OEM or their Tier 1 suppliers. Solutions are designed to meet application-specific requirements with customer-specific fit, form, and function. As a result, OEMs and Tier 1 suppliers make significant investments in selecting, integrating, and testing sensors as part of their product development. Once our solutions are designed into an application, we are well positioned as the incumbent supplier due to the high degree of sensor customization and application/vehicle platform certification. This results in high switching costs for automotive and HVOR manufacturers once a sensor is designed into a particular system or platform. We believe this is one of the reasons that sensors are rarely changed during a platform life cycle, which in the case of the automotive industry typically lasts four to six years. OEMs and Tier 1 suppliers seek to partner with suppliers with a proven record of quality, on-time delivery, and performance, as well as the engineering and manufacturing scale/resources to meet their needs over the multi-year lifecycle of these highly engineered vehicles and systems. As electrified transportation platforms continue to evolve and grow, we expect OEM and Tier 1 suppliers to continue to require sensing partners that can continue to meet their increasing needs for mission-critical sensors and solutions, enabling their global vehicle strategies. We continue to drive investments in innovative technologies, competencies, and solutions to enable our customers' success as they pivot toward an electrified world. Transportation industries provide some of the largest markets for sensors, giving participants with a presence in these markets significant scale advantages over those participating only in smaller, more niche industrial and medical markets.
Market Trends
We believe that net revenue growth from the automotive and HVOR sensor markets served by Performance Sensing has historically been driven by three principal trends, including (1) growth in the number of vehicles produced globally, (2) expansion in the number and type of sensors per vehicle, and (3) efforts toward commercializing higher value sensors. In addition, we believe that the automotive and HVOR sensor markets are, and will continue to be, substantially impacted in the near term by current megatrends, including Electrification and Insights/IoT.
Light vehicle production: Global production of light vehicles had consistently demonstrated steady annual growth for most of the decade up to 2019 when it started to decline. Fiscal years 2020 and 2021 were depressed production years due to the impact of the COVID-19 pandemic on global markets. Fiscal year 2020 was hardest hit, with global production of light vehicles declining approximately 16% from fiscal year 2019. In fiscal year 2022, global production of light vehicles increased about 6% from fiscal year 2021, according to third-party data.
On-Road Truck Production: Global production of heavy-duty trucks had also demonstrated consistent growth until fiscal year 2020, which declined as a result of the economic impacts of COVID-19. Global production of heavy- and medium-duty trucks in the markets we serve rebounded to increase approximately 20% in fiscal year 2021, but decreased approximately 12% in fiscal year 2022.
Number of sensors per vehicle: We believe that the number of sensors used in vehicles of all classes will continue to be driven by increasing requirements in vehicle emissions, efficiency, safety, electrification, and comfort-related control systems that depend on sensors for proper functioning, such as electronic stability control, tire pressure monitoring, advanced driver assistance, advanced combustion and exhaust after-treatment applications, and operator controls in heavy off-road equipment. For example, government regulation of emissions, including fuel economy standards such as the National Highway Traffic Safety Administration's Corporate Average Fuel Economy requirements in the U.S. and emissions requirements such as "Euro 6d" in Europe, "China National 6" in China, and "Bharat Stage VI" in India, require advanced sensors to achieve these performance metrics. Sensors are crucial enablers for a vehicle’s systems and sub-systems to meet the ever-increasing requirements in a vehicle’s operation.
Higher value sensors: We believe that our revenue growth has been augmented by a continuing shift away from legacy sensors to next-generation, value-rich sensors and related solutions that include controllers, receivers, and software and will continue to grow as our sensors get "smarter" with more embedded algorithms. As we strive to increase the value we bring to the market and our customers, we are continually looking to bring solutions to our customers that drive the next-generation vehicle enhancement in electrification, safety, and reliability through our engineering solutions combined with increased data insights that are derived from these sensing solutions. Our ability to provide our customers with not only solutions in sensing and electrical protection components and systems but also insights into the systems/sub-systems we serve increases the value of our offering and enables improved performance, safety, efficiency, and environmental impacts. Our focus on delivering enhanced value through our mission-critical solutions to the market positions us to drive profitable revenue growth as the market demands continue to evolve.
New Technology: Automobiles and heavy vehicles continue to evolve, with new alternative technologies being developed to make these vehicles more efficient, reliable, financially viable, and safe. We believe this trend will drive growth in our business for the foreseeable future, particularly in the areas of Electrification and Insights/IoT. Moreover, we believe our broad customer base, global diversification, and evolving portfolio provide the foundation that will allow us to grow with these megatrends across a diverse set of markets.
Our GIGAVAC-branded high-voltage electrical protection products augment our electrical protection portfolio to address many of the needs in electric vehicles as voltage systems continue to increase. As system voltages increase, the burden on the systems and subsystems to properly control and protect the vehicle from electrical failure becomes mission-critical, and is where our solutions play a critical role. Our electrical protection solutions safeguard the expensive electronics used to power the vehicle and allow for an increase in power levels to improve charging times. The joint venture created with Churod Electronics in early fiscal year 2021 expanded our contactor offering by making available new technology applicable to lower voltage ranges than GIGAVAC's solutions.
The adoption of more advanced sensing technologies is also a key market trend, as fleet operators and owners demand more sophisticated information about trucks and trailers, driving demand for cargo capacity, video telematics, and other sensing applications. Also, participants across the supply chain ecosystem are increasingly adopting IoT solutions to provide them with (1) tracking/visibility to where assets or goods are in the supply chain, (2) more advanced applications such as predictive algorithms on the estimated time of arrival and sensors that can provide information on the condition of the goods (temperature,
humidity, etc.), and (3) event analysis and in-cab monitoring through video telematics to help prevent and lower the cost of incidents.
Product Categories
The following table presents the significant product categories offered by Performance Sensing and the corresponding key products, solutions, applications, systems, and end markets:
| | | | | | | | | | | | | | |
| Key Products/Solutions | | Key Applications/Systems | | Key End Markets |
| Product category: Sensors |
Pressure sensors
Speed and position sensors
High-temperature sensors | | Thermal management and air conditioning systems Powertrain Exhaust after-treatment Suspension Braking Tire management solutions Operator controls Radar solutions Battery packs | | Automotive HVOR |
| Product category: Electrical protection |
High-voltage contactors/fuses Battery management system Charging inlet modules High-voltage distribution units | | Electrical protection
Electrical powertrain
Battery management
Charging systems | | Automotive HVOR |
| Product category: Other |
Vehicle area networks
Data collection devices and software | | Data insights (asset tracking and vehicle telematics)
Usage-based insurance | | HVOR |
The table below sets forth the amount of net revenue generated by our product categories in Performance Sensing, reconciled to total segment net revenue, for the years ended December 31, 2022, 2021, and 2020:
| | | | | | | | | | | | | | | | | | |
| For the year ended December 31, | |
| (In thousands) | 2022 | | 2021 | | 2020 | |
| Net revenue: | | | | | | |
Sensors (1) | $ | 2,627,788 | | | $ | 2,722,121 | | | $ | 2,171,364 | | |
| Electrical protection | 85,167 | | | 41,882 | | | 35,366 | | |
Other (1) | 263,801 | | | 83,905 | | | 17,080 | | |
| Performance Sensing net revenue | $ | 2,976,756 | | | $ | 2,847,908 | | | $ | 2,223,810 | | |
__________________________
(1) Beginning in the year ended December 31, 2022, we adjusted our product categories to better reflect how we currently view our products. Vehicle area networks and data collection devices and software, products used in our Sensata INSIGHTS business, have been recast from the sensors product category to the other product category. As a result, approximately $74.7 million of revenue in the year ended December 31, 2021 has been recast in the table above from the sensors product category to other. There was no revenue related to these products in the year ended December 31, 2020. The other product category in the year ended December 31, 2022 includes $173.3 million of revenue related to the Sensata INSIGHTS business.
Competitors
Within each of the principal product categories in Performance Sensing, we compete with a variety of independent suppliers. We believe that the key competitive factors in the markets served by this segment are product performance in mission-critical operating environments, quality, service, reliability, manufacturing footprint, and commercial competitiveness. We believe that our ability to design and produce customized solutions globally, breadth and scale of product offerings, technical expertise and development capability, product service and responsiveness, and a commercially competitive offering position us well to succeed in these markets. We are experts in the applications we serve, enabling us to provide industry-leading solutions to our customers.
Sensing Solutions
Sensing Solutions, which accounted for approximately 26% of our net revenue in fiscal year 2022, primarily serves the industrial and aerospace industries through the development and manufacture of a broad portfolio of application-specific sensor and electrical protection products used in a diverse range of industrial markets, including the appliance, HVAC, water management, operator controls, charging infrastructure, renewable energy generation, green hydrogen production, and microgrid applications and markets, as well as the aerospace market, including commercial aircraft, defense, and aftermarket markets.
Some of the products and solutions the segment sells include pressure, temperature, and position sensors, motor and compressor protectors, high-voltage contactors, solid state relays, bimetal electromechanical controls, power inverters, charge controllers, battery management systems, operator controls, and power conversion systems. Our products perform many functions, including prevention of damage from excess heat or electrical current, optimization of system performance, low-power circuit control, renewable energy generation, and power conversion from direct current ("DC") power to alternating current ("AC") power.
Our Clean Energy Solutions business includes products such as high-voltage contactors, inverters, rectifiers, and battery management systems and focuses on the industrial, stationary, and commercial energy storage end markets. Applications include those in battery-energy storage and renewable energy. With the acquisition of Spear and Sendyne, we expanded our portfolio to include energy storage systems and electrical sensing products, augmenting our offerings to our existing end markets as well as providing access to new end markets and applications. In addition, our acquisition of Dynapower is a foundational addition to our Clean Energy Solutions strategy. Refer to the discussion under the heading Business Combinations above and in Note 21: Acquisitions and Divestitures of our Financial Statements included elsewhere in this Report for additional discussion of this acquisition.
Customers
Overall, our customers include a wide range of industrial and commercial manufacturers and suppliers across multiple end markets, primarily OEMs in the climate control, appliance, medical, energy and charging infrastructure, data/telecom, aerospace and defense industries, as well as systems integrators and aerospace and motor and compressor distributors.
Markets
Demand for our sensor products is driven by many of the same factors as in the transportation sensor markets: regulation of emissions, greater energy efficiency and safety, and consumer demand for new features. Gross Domestic Product growth is a broad indicator of demand for our consolidated industrial markets over the long term. We use Purchasing Managers' Index to gauge short-term trends in the industrial, appliance, and HVAC markets we serve. For instance, the growing consumer demand for cleaner heat sources, like heat pumps, which utilize our content, is being driven by government initiatives to reduce carbon emissions to net zero by 2050.
We continue to focus our efforts on expanding our presence in all global geographies and serving our global customers in a highly efficient and cost-effective manner. Our customers include established multinationals as well as local producers in markets such as China, India, Eastern Europe, and Turkey. China remains a priority for us because of its export focus and the increasing domestic consumption of products that use our devices.
Clean Energy Solutions serves a broad range of industrial, transportation, and stationary energy storage end markets with applications such as battery-energy storage, microgrids, and renewable energy generation and storage applications. Our go-to-market approach leverages existing channels and also includes new channels.
Product Categories
The following table presents the significant product categories offered by Sensing Solutions and the corresponding key products, solutions, applications, systems, and end markets:
| | | | | | | | | | | | | | |
| Key Products/Solutions | | Key Applications/Systems | | Key End Markets |
| Product category: Electrical protection |
Bimetal electromechanical controls Circuit breakers High-voltage contactors/fuses Battery management systems Energy storage systems Switches and relays | | Motors, compressors, pumps
Home appliances
Lighting
Commercial and military aircraft
Marine/industrial
Data and telecom equipment
Medical equipment
Recreational vehicles | | Aerospace and defense Industrial Appliance and HVAC Marine Medical Energy/solar |
| Product category: Sensors |
Position sensors
Pressure sensors
Temperature sensors
Gas leak detection sensors | | Motors, compressors, pumps
Hydraulic machinery
Motion control systems
Commercial and military aircraft
Motor/platform controllers | | Aerospace and defense Industrial automation Appliance and HVAC Marine Energy |
| Product category: Other |
Inverters
Brushless DC motors
Current sensors
Rectifiers and frequency converters
Power conversion systems | | Recreational vehicles
Grid harmonics and power delivery | | Mobile power
Renewable power generation
Energy storage
Aerospace and defense |
The table below sets forth the amount of net revenue generated by our sensors and electrical protection product categories in Sensing Solutions, reconciled to total segment net revenue, for the years ended December 31, 2022, 2021, and 2020:
| | | | | | | | | | | | | | | | | |
| For the year ended December 31, |
| (In thousands) | 2022 | | 2021 | | 2020 |
| Net revenue: | | | | | |
| Electrical protection | $ | 625,316 | | | $ | 593,259 | | | $ | 468,635 | |
| Sensors | 259,275 | | | 230,364 | | | 209,244 | |
| Other | 167,915 | | | 149,275 | | | 143,889 | |
| Sensing Solutions net revenue | $ | 1,052,506 | | | $ | 972,898 | | | $ | 821,768 | |
Competitors
Within each of the principal product categories in Sensing Solutions, we compete with divisions of large multinational industrial corporations and companies with smaller market share that compete primarily in specific markets, applications, systems, or products. We believe that the key competitive factors in these markets are product performance, quality, and reliability.
Technology and Intellectual Property
We develop products that address increasingly complex engineering and operating performance requirements to help our customers solve their most difficult engineering challenges in the automotive, HVOR, fleet management, industrial, clean energy, and aerospace industries. We believe that continued focused investment in research and development ("R&D") is critical to our future growth and maintaining our leadership positions in the markets we serve. Our R&D efforts are directly related to the timely development of new and enhanced products that are central to our business strategy. We continually develop our technologies to meet an evolving set of customer requirements and new product introductions. We conduct such activities in areas we believe will increase our long-term revenue growth. Our development expense is typically associated with engineering core technology platforms to specific applications and engineering major upgrades that improve functionality or reduce the cost of existing products.
A large portion of our R&D activities is directed towards technologies and megatrends that we believe have the potential for significant future growth but relate to products that are not currently within our core business or include new features and capabilities for existing products. Expenses related to these activities are less likely than our more mainstream development activities to result in increased near-term revenue.
We benefit from many development opportunities at an early stage for several reasons: (1) we are the incumbent in many systems for our key customers; (2) we have robust design and service capability; and (3) our global engineering teams are located close to key customers in regional business centers. We work closely with our customers to deliver solutions that meet their needs today and in the future. As a result of development lead times and the embedded nature of our products, we collaborate closely with our customers throughout the design and development phase of their products. Systems development by our customers typically requires significant multi-year investment for certification and qualification, which are often government or customer mandated. We believe the capital commitment and time required for this process significantly increase the switching costs once a customer has designed and installed a particular sensor into a system.
We rely primarily on patents, trade secrets, manufacturing know-how, confidentiality procedures, and licensing arrangements to maintain and protect our intellectual property rights. While we consider our patents to be valuable assets, we do not believe that our overall competitive position is dependent on patent protection or that our overall business is dependent upon any single patent or group of related patents. Many of our patents protect specific functionality in our products, and others consist of processes or techniques that result in reduced manufacturing costs.
The following table presents information on our patents and patent applications as of December 31, 2022:
| | | | | | | | | | | |
| U.S. | | Non-U.S. |
| Patents | 341 | | | 587 | |
| Pending patent applications filed within the last five years | 105 | | | 340 | |
Our patents have expiration dates ranging from 2023 to 2045. We also own a portfolio of trademarks and license various patents and trademarks. "Sensata" and our logo are trademarks.
We use licensing arrangements with respect to certain technology provided in our sensor and electrical protection products. In 2006, we entered into a perpetual, royalty-free cross-license agreement with our former owner, Texas Instruments Incorporated, which permits each party to use specified technology owned by the other party in its business. No license may be terminated under the agreement, even in the event of a material breach.
Raw Materials
We use a broad range of manufactured components, subassemblies, and raw materials in the manufacture of our products in both our Performance Sensing and Sensing Solutions segments, including those containing certain commodities (e.g., semiconductors, resins, and metals), which may experience significant volatility in their price and availability due to, among other things: new laws or regulations, including labor laws and the impact of tariffs; trade barriers and disputes; global economic or political events, including government actions and labor strikes; suppliers' allocations to other purchasers; interruptions in production by suppliers; increased logistics costs; changes in foreign currency exchange rates; and prevailing price levels.
It has historically been difficult to pass increased prices for manufactured components and raw materials to our customers through price increases. Therefore, a significant increase in the price or decrease in the availability of these items could materially increase our operating costs and materially and adversely affect our business and results of operations. However, the impact of the global supply chain shortages, including production delays on a vast and varied number of products across industries and geographies and increased procurement and logistics costs, is unprecedented. Accordingly, we are actively working with our customers to share the inflationary burden of these factors. In addition, where possible, we are working to adjust our long-term supply agreements, strengthen our relationships with our suppliers, increase inventories on hand, increase visibility into long-term supply and demand, and accelerate the use of alternate materials to improve supply chain visibility.
Seasonality
Because of the diverse global nature of the markets in which we operate, our net revenue is only moderately impacted by seasonality. Sensing Solutions experiences some seasonality, specifically in its air conditioning and refrigeration products, which tend to peak in the first two quarters of the year as inventories are built up for spring and summer sales. In addition, Performance Sensing's net revenue tends to be weaker in the third quarter of the year as automotive OEMs retool production lines for the coming model year. Our Sensata INSIGHTS business within Performance Sensing tends to peak in the last quarter of the calendar year as customers exhaust their annual capital budgets.
Human Capital Resources
Our employees, whom we refer to as Team Sensata, are responsible for upholding our purpose – to help our customers and partners safely deliver a safer, cleaner, more efficient, more electrified, and increasingly more connected world – and they embody our values in all aspects of daily work. Our corporate values are the essence of our identity, provide a level-set foundation, and are an important way for us to improve our culture. Our values include passion, excellence, integrity, flexibility, and teamwork—working together towards common goals, the latter of which we refer to as "OneSensata." In various countries, local law requires our participation in works councils. We believe that our relations with our employees are good.
The following table presents a summary of our employee population as of December 31, 2022:
| | | | | | | | | | | | | | | | | | | | | | | |
| (in thousands) | Total | | U.S. Based | | Female | | Covered by
Collective Bargaining |
| Employees | 20.8 | | | 1.7 | | | 11.6 | | | 0.2 | |
Contractors (1) | 2.2 | | | 0.2 | | | 1.1 | | | — | |
__________________________
(1) We engage contract workers in multiple locations, primarily to cost-effectively manage variations in manufacturing volume, but also to perform engineering and other general services. Includes approximately 1,800 direct labor contract workers worldwide.
In June 2022, we published our second Sustainability Report, which shares our environmental, social, and governance ("ESG") strategies, performance, and goals. One of our key areas of prioritization as identified in the Sustainability Report is to empower our workforce through promotion of a culture that values inclusion and diversity and prioritizes employee well-being and safety. A summary of additional content in the Sustainability Report can be found under the heading Sustainability Report included elsewhere in this Item 1: Business. The full report can be found on our website at www.sensata.com/sustainability.
Diversity, Equity, and Inclusion ("DEI")
We believe in treating all people with respect and dignity. Each person brings unique value through their varying backgrounds and life experiences, no matter their age, race, color, disability, ethnicity, family or marital status, gender identity or expression, language, national origin, physical or mental ability, political affiliation, religion, sexual orientation, socio-economic status, veteran status, and other characteristics that make our employees unique. It is our policy and practice to hire and employ qualified individuals without regard to these characteristics. Our DEI policy can be found at www.sensata.com/diversity-equity-and-inclusion. This policy applies to all terms and conditions of employment, including recruitment and selection; compensation and benefits; professional development and training; promotions; transfers; social and recreational programs; reductions in force; terminations; and the ongoing development of a work environment built on the premise of diversity, equity, and inclusion.
We provide regular training to all employees regarding our diversity policies and practices through which we communicate our expectations that each employee is responsible for maintaining a respectful and inclusive workplace. We strive to create and foster a supportive and understanding environment in which ideas are shared freely, helping all individuals realize their maximum potential within Sensata, regardless of their differences. An inclusive culture is fundamental to innovation and problem-solving, improving our ability to innovate, and is vital to our business.
We sponsor various employee resource groups (“ERGs”), groups of employees that come together to work strategically, both internally and externally, to benefit and advance their group members by fostering awareness, respect, and inclusion within the workplace. Our ERGs support our commitment to creating and sustaining a diverse workforce and a culture of inclusion where everyone can thrive, encouraging different perspectives, thoughts, and ideas — creating a sense of community. Our ERGs provide our employees meaningful community and global engagement, networking and mentoring opportunities, and an inclusive workplace culture. Through interaction with these groups, senior leadership can identify emerging and high-potential talent, acquire cultural knowledge, hear directly from employees who face challenges inherent in underrepresented groups, and strengthen diversity management skills. Our ERGs contribute to our market success by actively contributing to our broader DEI strategy. As of December 31, 2022, we had eleven ERGs globally focused on the following areas — gender equity, generational diversity, cross-cultural appreciation, Black/African American, Hispanic/Latinx, Asian/ Asian-American & Pacific Islander heritage, and LGBTQIA+ Pride.
We have published our diversity goals in our Sustainability Report as discussed under the heading Sustainability Report included elsewhere in this Item 1: Business.
Social and Human Rights Matters
We have policies related to our position on various social and human rights matters, including child labor, forced labor, human trafficking, health and safety, non-discrimination, and environmental matters. Each of these policies can be found on our website at www.sensata.com. Our human rights expectations apply to all our personnel, business partners, and other parties involved directly in our operations, products, or services.
We are committed to responsible corporate practices in the area of human rights and working conditions and we respect the United Nations Guiding Principles for Business and Human Rights (2011) and its principles within our operations and supply chains. We also align with practices recommended by industry standards such as the Global Automotive Sustainability Practical Guidance and the RBA Code of Conduct, which incorporate the International Bill of Human Rights, namely the Universal Convention of Human Rights (1948), the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights and its two Optional Protocols (1966).
We also adhere to the principles set forth in the fundamental International Labor Organization ("ILO") Conventions, namely the Forced Labor Convention (1930), the Minimum Age Convention (1973), the Worst Forms of Child Labor Convention (1999), and the ILO Declaration on Fundamental Principles and Rights at Work (1998). The working conditions of our employees are, at minimum, in compliance with internationally recognized labor standards and the laws of the countries we operate in. When national law directly conflicts with international human rights standards or does not fully comply with them, we seek ways to respect internationally recognized human rights.
Employee Engagement
Our long-term success depends on hiring, retaining, training, rewarding, and engaging employees. We strive to retain and engage employees by providing competitive pay and benefits packages, a challenging and rewarding work experience, and by consistently connecting how integral their work is to Sensata's larger purpose and to the work we do as a company.
We focus our employee communications on continual engagement, providing updates on our business, technology, and workforce, including learning opportunities. We work to provide our employees with information to help them feel connected to the business and company strategy and purpose, what we are doing to be a responsible corporate citizen and community neighbor, and how we add value to our customers and investors.
We recognize the importance of supporting our employees’ health and well-being. Accordingly, we regularly review our benefit offerings with external advisers with deep industry expertise in risk insurance, health insurance, and other employee benefits for advice and market expertise. We are committed to providing comprehensive and competitive benefits packages that attract, retain, and enhance the well-being of our employees by supporting their physical, financial, and emotional wellness. Our benefits include an array of quality health and income protection benefits. Some benefits are provided automatically at no cost to employees, while the cost of other benefits is shared between the employee and Sensata.
Our employees' health, safety, and well-being are a high priority and integral to our values. We consider safety a core value embedded in the decisions we make across the company to protect our employees, business partners, and local communities.
Learning and Development
We believe that continued success in executing our business strategy requires us to provide a broad range of learning and development programs and opportunities to our employees. We offer our employees an online global learning management system ("Sensata Learning") that enables them to access live virtual and on-demand training. In fiscal year 2022, we delivered approximately 85,650 hours of training spanning various required learning and professional development topics, including a range of courses on diversity, inclusion, and ethics.
We have an integrated performance management process containing annual goal setting and periodic formal and informal reviews and check-ins, ensuring that our employees are provided continual feedback on their performance regarding goals and competencies. We also have templates for giving feedback anytime to employees, typically tied to performance as part of their role, projects, and deliverables which helps foster transparency and delivery of real-time feedback.
In addition, we have a robust talent and succession planning process and have established programs to support the development of our talent pipeline for critical roles in management, engineering, and operations. On an annual basis, we conduct a leadership review process with our chief executive officer, chief human resources officer, and business and functional leaders to identify key talent for additional development opportunities. This helps ensure optimal use of the talent for the benefit of both the employee and Sensata.
Ethics
We have adopted a Code of Business Conduct and Ethics governing the conduct of our personnel, including our principal executive officer, principal financial officer, principal accounting officer, and controller, and persons performing similar functions. Our Code of Business Conduct and Ethics is modified from time to time and is available on the investor relations page of our website at www.sensata.com under Corporate Governance. We have a three-part annual training covering the topics discussed in the Code of Business Conduct and Ethics on Sensata Learning, our online global learning management system.
We hold an annual "Integrity Week," which focuses on integrity as a core value of the organization and underscores our commitment to operating responsibly, one of the four key priority areas outlined in our Sustainability Report. Integrity is at the core of what we do—from how we govern ourselves to how we conduct our business and manage relationships with our stakeholders. The most recent Integrity Week, in fiscal year 2022, focused on “Doing What’s Right – Every Day, Every Site.” By sharing best practices and stories from their professional journeys, various executives and site leaders at Sensata illustrated how integrity is not just about doing the right thing but how it is intrinsic to delivering value and sustainability for our company, environment, and communities.
We believe our management team has the experience necessary to effectively execute our strategy and advance our product and technology leadership. Our chief executive officer and business leaders average approximately 25 years of industry experience. They are supported by an experienced and talented management team dedicated to maintaining and expanding our position as a global leader in the industry. For a discussion of the risks relating to the attraction and retention of management and executive management employees, see Item 1A: Risk Factors included elsewhere in this Report.
Sustainability Report
In June 2022, we published our second annual Sustainability Report, which shares our ESG strategies, performance, and goals that support our vision of creating a safer, cleaner, more efficient, more electrified, and increasingly more connected world.
Our sustainability efforts focus on four key areas of prioritization against which we measure progress:
•Empowering our workforce: We nurture a culture that promotes diversity and inclusion and prioritizes employee health, safety, and well-being while supporting our communities and suppliers;
•Innovating for Sustainability: We develop products and technology solutions that help create a safer, cleaner, more efficient, electrified, and connected world;
•Protecting Our Environment: We focus on building products that reduce environmental impact and improve technological efficiencies while optimizing and reducing our operational footprint through energy, water, and waste reduction;
•Operating Responsibly: We consider transparency and accountability fundamental in everything we do, guiding our approach to governance, risk management, and ESG management.
As described in the Sustainability Report, we conducted a materiality assessment to identify the ESG issues that were most important to our business and stakeholders. We identified the following key issues and set corresponding goals as follows:
◦DEI: Our goals in this area are by 2026 to reach (1) 30% female representation in manager and above roles worldwide and (2) 25% racial/ethnic diversity representation in manager and above roles in the U.S.;
◦Energy and Emissions: Our goals in this area are (1) to achieve carbon neutrality in our operations by 2050 and (2) to reduce greenhouse gas emissions intensity by 10% by 2026, from a 2021 baseline;
◦Responsible Sourcing: Our goals in this area are by 2026 to (1) achieve a 75% response rate on our responsible sourcing campaigns and (2) achieve 100% sourcing of conflict minerals and cobalt from smelters that are conformant with the Responsible Minerals Assurance Process or equivalent standard.
Environmental and Governmental Regulations
Our operations and facilities are subject to numerous environmental, health, and safety laws and regulations, both domestic and foreign, including those governing air emissions, chemical usage, water discharges, the management and disposal of hazardous substances and wastes, and the cleanup of contaminated sites. We are not aware of any threatened or pending material environmental investigations, lawsuits, or claims involving us or our operations.
Many of our products are governed by material content restrictions and reporting requirements, examples of which include: European Union ("EU") regulations, such as Registration, Evaluation, Authorization, and Restriction of Chemicals ("REACH"), Restriction of Hazardous Substances ("RoHS"), and End of Life Vehicle ("ELV"); U.S. regulations, such as the conflict minerals requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act; and similar regulations in other countries, such as the German Explosives Act. Further, numerous customers across all end markets require us to provide declarations of compliance or, in some cases, extra material content documentation as a requirement of doing business with them.
We are subject to compliance with laws and regulations controlling the import and export of goods, services, software, and technical data. Certain of our products are subject to export regulations of the various jurisdictions in which we operate (“Controlled Items”). The export of many such Controlled Items requires a license from the applicable government agency. Licensing decisions are made based on the type of product, its destination, end use, end user, the parties involved in the transaction, national security, and foreign policy. As a result, export license approvals are not guaranteed. We have a trade compliance team and other systems in place to apply for licenses and otherwise comply with import and export regulations. Any failure to maintain compliance with such regulations could limit our ability to import or export raw materials and finished goods. These laws and regulations are subject to change, and any such change may limit or exclude existing or future business opportunities, require us to change technology, or incur expenditures to comply with such laws and regulations.
Compliance with environmental and governmental regulations and meeting customer requirements have increased our cost of doing business in various ways and may continue to do so in the future. We do not currently anticipate material capital expenditures during fiscal year 2023 for environmental control facilities. We also do not believe that existing or pending legislation, regulation, or international treaties or accords, whether related to environmental or other government regulations, are reasonably likely to have a material adverse effect in the foreseeable future on our business or the markets we serve, nor on our results of operations, capital expenditures, earnings, competitive position, or financial standing.
Available Information
We make available free of charge on our Internet website (www.sensata.com) our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and amendments to those reports filed or furnished pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. Our website and the information contained or incorporated therein are not intended to be incorporated into this Report.
The SEC maintains an Internet site that contains reports, proxy, and information statements, and other information regarding issuers that file electronically with the SEC at www.sec.gov. The contents on, or accessible through, this website or our website are not incorporated into this filing. Further, our references to the URLs for the SEC's website and our website are intended to be inactive textual references only.
ITEM 1A. RISK FACTORS
The following are important factors that could cause actual results or events to differ materially from those contained in any forward-looking statements made by us or on our behalf. Investors should carefully consider these risks and all other information in this Report before investing in our securities. The risks and uncertainties described below are not the only ones we face. Our business is also subject to general risks that affect many other companies. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also impair our business, operations, liquidity, and financial condition.
If actions taken by management to limit, monitor, or control enterprise risk exposures are not successful, our business and consolidated financial statements could be materially adversely affected. In such case, the trading price of our common stock and debt securities could decline and investors may lose all or part of their investment.
Business and Operational Risks
We are subject to various risks related to public health crises, including the COVID-19 pandemic, which have had, and may in the future have, material and adverse impacts on our business, financial condition, liquidity, and results of operations.
Any outbreaks of contagious diseases and other adverse public health developments in countries where we operate could have a material and adverse impact on our business, financial condition, liquidity, and results of operations. As has occurred with the COVID-19 pandemic, a global pandemic could cause significant disruption to the global economy, including in all of the regions in which we, our suppliers, distributors, business partners, and customers do business and in which our workforce is
located. A global pandemic and efforts to manage it, including those by governmental authorities, could have significant impacts on global markets, and could have a significant, negative impact on our sales and operating results. Disruptions could include: partial shutdowns of our facilities as mandated by government decree; government actions limiting our ability to adjust certain costs; significant travel restrictions; “work-from-home” orders; limited availability of our workforce; supplier constraints; supply chain interruptions; logistics challenges and limitations; and reduced demand from certain customers. The COVID-19 pandemic has had, and could continue to have, these effects on the economy and our business.
As of December 31, 2022, we were still experiencing lingering disruptions of these types. The extent to which the COVID-19 pandemic will continue to impact our business and financial results going forward will be dependent on future developments such as the length and severity of the crisis, the potential resurgence of the crisis, variant strains of the virus, vaccine availability and effectiveness, future government actions in response to the crisis and the overall impact of the COVID-19 pandemic on the global economy and capital markets, among many other factors, all of which remain highly uncertain and unpredictable. This unpredictability could limit our ability to respond to future developments quickly. Additionally, the impacts described above and other impacts of a global pandemic, including the COVID-19 pandemic and responses to it, could substantially increase the risk to us from the other risks described in this Item 1A: Risk Factors.
Our business is subject to numerous global risks, including regulatory, political, economic, governmental, and military concerns and instability.
Our business, including our employees, customers, and suppliers, is located throughout the world. We employ approximately 92% of our workforce outside of the U.S. We have many manufacturing, administrative, and sales facilities outside of the U.S. Our subsidiaries located outside of the U.S. generated approximately 61% of our net revenue in fiscal year 2022 (including approximately 20% in China) and we expect sales from non-U.S. markets to continue to represent a significant portion of our total net revenue. International sales and operations are subject to changes in local government regulations and policies, including those related to tariffs and trade barriers, economic sanctions, investments, taxation, exchange controls, and repatriation of earnings.
As a result, we are exposed to numerous global, regional, and local risks that could decrease revenue and/or increase expenses, and therefore decrease our profitability. Such risks may result from instability in economic or political conditions, inflation, recession, and/or actual or anticipated military or political conflicts, and include, without limitation: trade regulations, including customs, import, export, and sourcing restrictions, tariffs, trade barriers, trade disputes, and economic sanctions; changes in local employment costs, laws, regulations, and conditions; difficulties with, and costs for, protecting our intellectual property; challenges in collecting accounts receivable; tax laws and regulatory changes, including examinations by taxing authorities, variations in tax laws from country to country, changes to the terms of income tax treaties, and difficulties in the tax-efficient repatriation of earnings generated or held in a number of jurisdictions; natural disasters; and the impact of each of the foregoing on our business operations, manufacturing, and supply chain.
Other risks are inherent in our non-U.S. operations, including: the potential for changes in socio-economic conditions and/or monetary and fiscal policies; intellectual property protection difficulties and disputes; the settlement of legal disputes through certain foreign legal systems; the collection of receivables; exposure to possible expropriation or other government actions; unsettled political conditions; and possible terrorist attacks. These and other factors may have a material adverse effect on our non-U.S. operations and, therefore, on our business and results of operations. In addition, a scarcity of resources or other hardships caused by a global pandemic may result in increased nationalism, protectionism, and political tensions which may cause governments and/or other entities to take actions that may have a significant negative impact on our ability – and the ability of our suppliers and customers – to conduct business.
We have sizable operations in China, including two principal manufacturing sites. Economic and political conditions in China have been and may continue to be volatile and uncertain, especially as the U.S. and China continue to discuss and have differences in trade policies and the U.S. continues to add restrictions on both exports to China and use of materials from certain regions within China. In addition, the legal and regulatory system in China is still developing and is subject to change. Our operations and transactions with customers in China could continue to be adversely affected by increased tariffs and export restrictions and could be otherwise adversely affected by other changes to market conditions, changes to the regulatory environment, or interpretation of Chinese law.
Adverse conditions in the industries upon which we are dependent, including the automotive industry, have had, and may in the future have, adverse effects on our business.
We are dependent on market dynamics to sell our products, and our operating results could be adversely affected by cyclical and reduced demand in these markets. Periodic downturns in our customers’ industries could significantly reduce demand for certain of our products, which could have a material adverse effect on our results of operations, financial condition, and cash flows.
Much of our business depends on, and is directly affected by, the global automobile industry. Sales in our automotive end markets accounted for approximately 52% of our total net revenue in fiscal year 2022. Declines in demand such as experienced as a result of the COVID-19 pandemic and other adverse developments like those we have seen in past years in the automotive industry, including but not limited to customer bankruptcies and increased demands on us for lower prices, could have adverse effects on our results of operations and could impact our liquidity and our ability to meet restrictive debt covenants. In addition, these same conditions could adversely impact certain of our vendors’ financial solvency, resulting in potential liabilities or additional costs to us to ensure uninterrupted supply to our customers.
We may incur material losses and costs as a result of product liability, warranty, and recall claims that may be brought against us.
We have been, and will continue to be, exposed to product liability and warranty claims in the event that our products actually or allegedly fail to perform as expected, or the use of our products results, or is alleged to result, in death, bodily injury, and/or property damage. Accordingly, we could experience material warranty or product liability losses in the future and incur significant costs to defend these claims. In addition, if any of our products are, or are alleged to be, defective, we may be required to participate in a recall of the underlying end product, particularly if the defect or the alleged defect relates to product safety and/or regulatory non-compliance. Depending on the terms under which we supply products, an OEM may hold us responsible for some or all of the repair or replacement costs of these products under warranty when the product supplied did not perform as represented.
The impact of the current global supply chain shortages includes various factors that could impact our actual or perceived liability due to quality issues, whether at a supplier or customer. Shortages of materials at our suppliers or customers could cause them to work longer production hours to meet demand, resulting in fatigue on manufacturing workers, delays in planned maintenance, and other factors that could impact the actual or perceived quality of our products. In addition, customers may be forced to assemble parts into the end product in an order not anticipated by design, or to assemble parts in a location without proper environmental controls (e.g. a parking lot), increasing the potential that our part fails through no fault of our own. While we would defend ourselves from warranty claims in these circumstances, there is no guarantee that we would prevail.
As we continue to develop products containing complex information technology (“IT”) systems designed to support today’s increasingly connected vehicles, these systems result in potential increases to our risks in product safety, regulatory compliance, product liability, warranty, and recall claims. In addition, the warranty period for certain electric vehicle components is generally eight to ten years, which increases our risk for warranty claims over the life of a product.
In addition, a product recall could generate substantial negative publicity about our business and interfere with our manufacturing plans and product delivery obligations as we seek to repair affected products. Our costs associated with product liability, warranty, and recall claims could be material.
We are dependent on market acceptance of our new product introductions and product innovations for future revenue and we may not realize all of the revenue or achieve anticipated gross margins from products subject to existing awards or for which we are currently engaged in development.
Substantially all markets in which we operate are impacted by technological change or change in consumer tastes and preferences, which are rapid in certain markets. Our operating results depend substantially upon our ability to continually design, develop, introduce, and sell new and innovative products; to modify existing products; and to customize products to meet customer requirements driven by such change. There are numerous risks inherent in these processes, including the risk that we will be unable to anticipate the direction of technological change; that we will be unable to develop and market profitable new products and applications before our competitors or in time to satisfy customer demands; the possibility that investment of significant time and resources will not be successful; the possibility that the marketplace does not accept our products or services; that we are unable to retain customers that adopt our new products or services; and the risk of additional liabilities associated with these efforts.
Our ability to generate revenue from products pending customer awards is subject to a number of important risks and uncertainties, many of which are beyond our control, including the number of products our customers will actually produce, as well as the timing of such production. Many of our customer agreements provide for the supply of a certain share of the customer’s requirements for a particular application or platform, rather than for a specific quantity of products. In some cases, we have no remedy if a customer chooses to purchase less than we expect. In cases where customers do make minimum volume commitments to us, our remedy for their failure to meet those minimum volumes may be limited to increased pricing on those products that the customer does purchase from us or renegotiating other contract terms. There is no assurance that such price increases or new terms will offset a shortfall in expected revenue. In addition, some of our customers may have the right to discontinue a program or replace us with another supplier under certain circumstances. As a result, products for which we are currently incurring development expenses may not be manufactured by our customers at all, or they may be manufactured in smaller amounts than currently anticipated. Therefore, our anticipated future revenue from products relating to existing customer awards or product development relationships may not result in firm orders from customers for the originally contracted amount.
We also incur capital expenditures and other costs and price our products based on estimated production volumes. If actual production volumes were significantly lower than estimated, our anticipated revenue and gross margin from those new products would be adversely affected. We cannot predict the ultimate demand for our customers’ products, nor can we predict the extent to which we would be able to pass through unanticipated per-unit cost increases to our customers.
Increasing costs for, or limitations on the supply of or access to, manufactured components and raw materials may adversely affect our business and results of operations.
We use a broad range of manufactured components, subassemblies, and raw materials in the manufacture of our products in both our Performance Sensing and Sensing Solutions segments, including those containing certain commodities (e.g. semiconductors, resins, and metals), which may experience significant volatility in their price and availability due to, among other things, new laws or regulations, including the impact of tariffs, trade barriers, trade disputes, export or sourcing restrictions, economic sanctions, and global economic or political events including government actions, labor strikes, suppliers' allocations to other purchasers, interruptions in production by suppliers, changes in foreign currency exchange rates, and prevailing price levels.
It has historically been difficult to pass increased prices for manufactured components and raw materials through to our customers in the form of price increases. Therefore, a significant increase in the price or a decrease in the availability of these items could materially increase our operating costs and materially and adversely affect our business and results of operations. However, the impact of the current global supply chain shortages, including production delays on a vast and varied number of products across industries and geographies and increased procurement and logistics costs, are unprecedented. Accordingly, we are actively working with our customers to share the inflationary burden of these factors. In addition, where possible, we are working to adjust our long-term supply agreements, strengthen our relationships with our suppliers, increase inventory on hand, increase visibility into long-term supply and demand, and accelerate the use of alternate materials to increase supply chain visibility. If the impacts of these shortages are more severe than we currently expect, it could result in further deterioration of our results, potentially for a longer period than currently anticipated. In addition, the impact of the current global supply chain shortages on one or more of our key suppliers could adversely impact our profitability.
We have entered into hedge arrangements for certain metals used in our products in an attempt to minimize commodity pricing volatility and may continue to do so from time to time in the future. Such hedges might not be economically successful. In addition, these hedges do not qualify as accounting hedges in accordance with U.S. generally accepted accounting principles. Accordingly, the change in fair value of these hedges is recognized in earnings immediately, which could cause volatility in our results of operations from quarter to quarter.
In connection with the implementation of our corporate strategies, we face risks associated with the acquisition of businesses, the integration of acquired businesses, and the growth and development of these businesses.
In pursuing our corporate strategy, we often acquire other businesses. The success of this strategy is dependent upon our ability to identify appropriate acquisition targets, negotiate transactions on favorable terms, complete transactions, and successfully integrate them into our existing businesses. There can be no assurance that we will realize the anticipated synergies or cost savings related to acquisitions, including, but not limited to, revenue growth and operational efficiencies, or that they will be achieved in our estimated timeframe. We may not be able to successfully integrate and streamline overlapping functions from future acquisitions, and integration may be more costly to accomplish than we expect. In addition, we could encounter difficulties in managing our combined company due to its increased size and scope.
Subject to the terms of our indebtedness, we may finance future acquisitions with cash from operations, additional indebtedness, and/or by issuing additional equity securities. In addition, we could face financial risks associated with incurring additional indebtedness such as reducing our liquidity, limiting our access to financing markets, and increasing the amount of service on our debt. The availability of debt to finance future acquisitions may be restricted, and our ability to make future acquisitions may be limited. Refer to separate risk factor for additional information related to risks regarding our level of indebtedness.
In addition, many of the businesses that we acquire and develop will likely have significantly smaller scales of operations prior to the implementation of our growth strategy. If we are not able to manage the growing complexity of these businesses, including improving, refining, or revising our systems and operational practices, and enlarging the scale and scope of the businesses, our business may be adversely affected. Other risks include developing knowledge of and experience in the new business, integrating the acquired business into our systems and culture, recruiting professionals, and developing and capitalizing on new relationships with experienced market participants. External factors, such as compliance with new or revised regulations, competitive alternatives, and shifting market preferences may also impact the successful implementation of a new line of business. Failure to manage these risks in the acquisition or development of new businesses could materially and adversely affect our business, results of operations, and financial condition.
Restructuring our business or divesting some of our businesses or product lines in the future may have a material adverse effect on our results of operations, financial condition, and cash flows.
In pursuing our corporate strategy, we continue to evaluate the strategic fit of specific businesses and products and occasionally dispose of or exit businesses and products. The success of this strategy is dependent upon our ability to identify appropriate disposition targets, negotiate transactions on favorable terms, and complete transactions. Any divestitures may result in significant write-offs, including those related to goodwill and other intangible assets, which could have a material adverse effect on our results of operations and financial condition. Divestitures could involve additional risks, including difficulties in the separation of operations, services, products, and personnel; the diversion of management's attention from other business concerns; the disruption of our business; and the potential loss of key employees. There can be no assurance that we will be successful in addressing these or any other significant risks encountered. In the year ended December 31, 2022, we sold various assets and liabilities comprising our semiconductor test and thermal business (collectively, the "Qinex Business"). Refer to Note 21: Acquisitions and Divestitures of our Financial Statements included elsewhere in this Report for additional information
We also may seek to restructure our business in the future by relocating operations, disposing of certain assets, or consolidating operations. There can be no assurance that any restructuring of our business will not adversely affect our financial condition, leverage, or results of operations. In addition, any significant restructuring of our business will require significant managerial attention, which may be diverted from our other operations.
Labor disruptions or increased labor costs have had, and may in the future have, adverse impacts on our business.
A material labor disruption or work stoppage at one or more of our manufacturing or business facilities could have a material adverse effect on our business. In addition, work stoppages occur relatively frequently in the industries in which many of our customers operate, such as the transportation industry. If one or more of our larger customers were to experience a material work stoppage for any reason, that customer may halt or limit the purchase of our products. This could cause us to reduce production levels or shut down production facilities relating to those products, which could have a material adverse effect on our business, results of operations, and/or financial condition.
We operate in markets that are highly competitive and competitive pressures could require us to lower our prices or result in reduced demand for our products.
We operate in markets that are highly competitive, and we compete on the basis of product performance in mission-critical operating environments, quality, service, reliability, manufacturing footprint, and commercial competitiveness across the industries and end markets we serve. A significant element of our competitive strategy is to design and manufacture high-quality products that meet the needs of our customers at a commercially competitive price, particularly in markets where low-cost, country-based suppliers, primarily in China with respect to the Sensing Solutions segment, have entered the markets or increased their per-unit sales in these markets by delivering products at low cost to local OEMs. In addition, certain of our competitors in the transportation sensor market are influenced or controlled by major OEMs or suppliers, thereby limiting our access to these customers. Many of our customers also rely on us as their sole source of supply for many of the products that we have historically sold to them. These customers may choose to develop relationships with additional suppliers or elect to produce some or all of these products internally, primarily to reduce risk of delivery interruptions or as a means of extracting more value from us. Certain of our customers currently have, or may develop in the future, the capability to internally produce
the products that we sell to them and may compete with us with respect to those and other products and with respect to other customers.
Many of our customers, including transportation manufacturers and other industrial and commercial OEMs, demand annual price reductions. If we are not able to offset continued price reductions through improved operating efficiencies and reduced expenditures, these price reductions may have a material adverse effect on our results of operations and cash flows. In addition, our customers occasionally require engineering, design, or production changes. In some circumstances, we may be unable to cover the costs of these changes with price increases. Further, as our customers grow larger, they may increasingly require us to provide them with our products on an exclusive basis, which could limit sales, cause an increase in the number of products we must carry and, consequently, increase our inventory levels and working capital requirements. Certain of our customers, particularly in the automotive industry, are increasingly requiring their suppliers to agree to their standard purchasing terms without deviation as a condition to engage in future business transactions, many of which are increasing warranty requirements. As a result, we may find it difficult to enter into agreements with such customers on terms that are commercially reasonable to us.
Security breaches and other disruptions to our IT infrastructure could interfere with our operations, compromise confidential information, and expose us to liability, which could have a material adverse impact our business and reputation.
In the ordinary course of business, we rely on IT networks and systems, some of which are managed by third parties, to process, transmit, and store electronic information, and to manage or support a variety of business processes and activities.
We are at risk of attack by a growing list of adversaries through increasingly sophisticated methods. Because the techniques used to obtain unauthorized access or sabotage systems change frequently, we may be unable to anticipate these techniques or implement adequate preventative measures. In addition, we may not be able to detect breaches in our IT systems or assess the severity or impact of a breach in a timely manner. We have experienced attacks to our systems and networks and have from time to time experienced cybersecurity breaches, such as computer viruses and malware, unauthorized parties gaining access to our IT systems, and similar incidents, which to date have not had a material impact on our business. If we are unable to efficiently and effectively maintain and upgrade our system safeguards, we may incur unexpected costs and certain of our systems may become more vulnerable to unauthorized access. Additionally, we are an acquisitive organization and the process of integrating the information systems of the businesses we acquire is complex and exposes us to additional risk as we might not adequately identify weaknesses in the targets’ information systems, which could expose us to unexpected liabilities or make our own systems more vulnerable to attack.
Despite our cybersecurity measures (including employee and third-party training, monitoring of networks and systems, maintenance of backup and protective systems, and maintenance of cybersecurity insurance), our IT networks and infrastructure may still be vulnerable to damage, disruptions, or shutdowns due to attacks by hackers, breaches, employee error or malfeasance, power outages, computer viruses, malware and ransomware, telecommunication or utility failures, systems failures, natural disasters, or other catastrophic events. We also face the challenge of supporting our older systems and implementing necessary upgrades.
Moreover, as we continue to develop products containing complex IT systems designed to support today’s increasingly connected world, these systems also could be susceptible to similar interruptions, including the possibility of unauthorized access. Further, as we transition to offering more cloud-based solutions that are dependent on the internet or other networks to operate with increased users, we may become a greater target for cyber threats, such as malware, denial of service, external adversaries, or insider threats.
These types of incidents affecting us or our third-party vendors could result in intellectual property or other confidential information being lost or stolen, including client, employee, or company data. Any such events could result in legal claims or proceedings, liability or penalties under privacy laws and/or export control laws, disruption in operations, and damage to our reputation, which could materially adversely affect our business. Further, to the extent that any disruption or security breach results in a loss of, or damage to, our data, or an inappropriate disclosure of confidential information, it could cause significant damage to our reputation, affect our relationships with our customers, lead to claims against us, and ultimately harm our business, financial condition, and/or results of operations.
Improper disclosure of confidential, personal, or proprietary data could result in regulatory scrutiny, legal liability, or harm to our reputation. Changes to data protection laws, new customer requirements, and changes to international data transfer rules could impose new burdens.
One of our significant responsibilities is to maintain the security and privacy of our employees’ and customers’ confidential and proprietary information. We maintain policies, procedures, and technological safeguards designed to protect the security and privacy of this information and regularly review compliance changes in the jurisdictions where Sensata operates. Nevertheless, we cannot eliminate the risk of human error, employee or vendor malfeasance, or cyber-attacks that could result in improper access to or disclosure or transfer of confidential, personal, or proprietary information by Sensata or our supply chain. Such access transfers could harm our reputation and subject us to liability under our contracts and the laws and regulations that protect personal and export-controlled data, resulting in increased costs, loss of revenue, and loss of customers. The release of confidential information could also lead to litigation or other proceedings against us by affected individuals, business partners, or by regulators, and the outcome of such proceedings, which could include penalties or fines, could have a significant negative impact on our business.
In many jurisdictions we are subject to laws and regulations relating to the use of this information. These laws and regulations are changing rapidly, are becoming increasingly complex, and can conflict across the jurisdictions in which we operate. Our failure to adhere to processes in response to changing regulatory requirements could result in legal liability, significant regulator penalties and fines, or impair our reputation in the marketplace.
The technological capabilities we are developing in the Sensata INSIGHTS business bring new risks to our company. Laws and regulations for smart vehicles are expected to continue to evolve in numerous jurisdictions globally, which could affect our product portfolio and operations. Further, managing and securing personal and customer data that our products, as well as our partners’ products, gather is a new and evolving risk for us. We must also prepare and adjust for rapid design philosophies associated with building these new solutions.
Our future success depends in part on our ability to attract and retain key senior management and qualified technical, sales, and other personnel.
Our future success depends in part on our continued ability to retain key executives and our ability to attract and retain qualified technical, sales, and other personnel. Significant competition exists for such personnel and we cannot assure the retention of our key executives, technical, and sales personnel or our ability to attract, integrate, and retain other such personnel that may be required in the future. We cannot assure that employees will not leave and subsequently compete against us. If we are unable to attract and retain key personnel, our business, financial condition, and results of operations could be adversely affected.
Financial Risks
We are exposed to fluctuations in currency exchange rates that could negatively impact our financial results and cash flows.
A portion of our net revenue, expenses, receivables, and payables are denominated in currencies other than the U.S. dollar (the "USD"). We, therefore, face exposure to adverse movements in exchange rates of currencies other than the USD, which may change over time and could affect our financial results and cash flows. For financial reporting purposes, we, and most of our subsidiaries, operate under a USD functional currency because of the significant influence of the USD on our operations. In certain instances, we enter into transactions that are denominated in a currency other than the USD. At the date that such transaction is recognized, each asset, liability, revenue, expense, gain, or loss arising from the transaction is measured and recorded in USD using the exchange rate in effect at that date. At each balance sheet date, recorded monetary balances denominated in a currency other than the USD are adjusted to USD using the exchange rate at the balance sheet date, with gains or losses recognized in other, net in the consolidated statements of operations. During times of a weakening USD, our revenue recognized in currencies other than the USD may increase because the non-U.S. currency will translate into more USD. Conversely, during times of a strengthening USD, our revenue recognized in currencies other than the USD may decrease because the local currency will translate into fewer USD.
Our level of indebtedness could adversely affect our financial condition and our ability to operate our business, including our ability to service our debt and/or comply with the related covenants.
The credit agreement governing our secured credit facility (as amended, the "Credit Agreement") provides for senior secured credit facilities (the "Senior Secured Credit Facilities") consisting of a term loan facility (the "Term Loan"), a $750.0 million revolving credit facility (the "Revolving Credit Facility"), and incremental availability (the "Accordion") under which additional secured credit facilities could be issued under certain circumstances. As of December 31, 2022, we had $4,273.4 million of gross outstanding indebtedness, including various tranches of senior unsecured notes (the “Senior Notes”). Refer to Note 14: Debt of our Financial Statements included elsewhere in this Report for additional information related to our outstanding indebtedness.
Our substantial indebtedness could have important consequences. For example, it could make it more difficult for us to satisfy our debt obligations; restrict us from making strategic acquisitions; limit our ability to repurchase shares; limit our flexibility in planning for, or reacting to, changes in our business and future business opportunities, thereby placing us at a competitive disadvantage if our competitors are not as highly-leveraged; increase our vulnerability to general adverse economic and market conditions; or require us to dedicate a substantial portion of our cash flows from operations to payments on our indebtedness if we do not maintain specified financial ratios or are not able to refinance our indebtedness as it comes due, thereby reducing the availability of our cash flows for other purposes. In addition, the Accordion permits us to incur additional secured credit facilities in certain circumstances in the future, subject to certain limitations as defined in the indentures under which the Senior Notes were issued. This could allow us to issue additional secured debt or increase the capacity of the Revolving Credit Facility. If we increase our indebtedness by borrowing under the Revolving Credit Facility or incur other new indebtedness under the Accordion, the risks described above would increase.
We cannot guarantee that we will be able to obtain enough capital to service our debt and fund our planned capital expenditures and business plan. If we complete additional acquisitions, our debt service requirements could also increase. If we cannot service our indebtedness, we may have to take actions such as selling assets, seeking additional equity investments, or reducing or delaying capital expenditures, strategic acquisitions, investments, and alliances, any of which could have a material adverse effect on our operations. Additionally, we may not be able to complete such actions, if necessary, on commercially reasonable terms, or at all.
If we experience an event of default under any of our debt instruments that is not cured or waived, the holders of the defaulted debt could cause all amounts outstanding with respect to the debt to become due and payable immediately, which, in turn, would result in cross-defaults under our other debt instruments. Our assets and cash flows may not be sufficient to fully repay borrowings if accelerated upon an event of default. If, when required, we are unable to repay, refinance, or restructure our indebtedness under, or amend the covenants contained in, the Credit Agreement, or if a default otherwise occurs, the lenders under the Senior Secured Credit Facilities could: elect to terminate their commitments thereunder; cease making further loans; declare all borrowings outstanding, together with accrued interest and other fees, to be immediately due and payable; institute foreclosure proceedings against those assets that secure the borrowings under the Senior Secured Credit Facilities; and prevent us from making payments on the Senior Notes. Any such actions could force us into bankruptcy or liquidation, and we might not be able to repay our obligations in such an event.
Changes in government trade policies, including the imposition of tariffs, may have a material impact on our results of operations.
We evaluate all trade policies that impact us, and we adjust our operational strategies to mitigate the impact of these policies. However, trade policies, including quotas, duties, tariffs, taxes, or other restrictions on the import or export of our products, are subject to change, and we cannot ensure that any mitigation strategies employed will remain available in the future or that we will be able to offset tariff-related costs or maintain competitive pricing of our products. The adoption and expansion of trade restrictions, the occurrence of a trade war, or other governmental action related to tariffs or trade agreements or policies has the potential to adversely impact demand for our products, our costs, our customers, our suppliers, and the global economy, which in turn could have a material adverse effect on our business, operating results and financial condition.
Existing duty reduction and deferral programs, such as free-trade agreements, duty drawback, and inward processing relief, provide beneficial impacts to our duties and tariffs for qualifying imports and exports, subject to compliance with each program’s unique requirements. Changes in laws or policies governing the terms of these duty reduction and deferral programs could have a material adverse effect on our business and financial results. In addition, most of our facilities in Mexico operate under the Mexican Maquiladora program. This program provides for reduced tariffs and eased import regulations; we could be adversely affected by changes in such program, or by our failure to comply with its requirements.
Further tariffs may be imposed on other imports of our products or our business may be further impacted by retaliatory trade measures taken by China or other countries in response to existing or future U.S. tariffs or other measures (e.g., subsidies). We may raise our prices on products subject to such tariffs to share the cost with our customers, which could harm our operating performance or cause our customers to seek alternative suppliers. In addition, we may seek to shift some of our China manufacturing to other countries, which could result in additional costs and disruption to our operations. We also sell our products globally and, therefore, our export sales could be impacted by the tariffs. Any material reduction in sales may have a material adverse effect on our results of operations.
We have recorded a significant amount of goodwill and other identifiable intangible assets, and we may be required to recognize goodwill or intangible asset impairments, which would reduce our earnings.
We have recorded a significant amount of goodwill and other identifiable intangible assets. Goodwill and other intangible assets, net totaled approximately $4.9 billion as of December 31, 2022, or 56% of our total assets. Goodwill, which represents the future economic benefits arising from other assets acquired in a business combination that are not individually identified and separately recognized, was approximately $3.9 billion as of December 31, 2022, or 45% of our total assets. Goodwill and other identifiable intangible assets were recognized at fair value as of the corresponding acquisition date. Impairment of goodwill and other identifiable intangible assets may result from, among other things, deterioration in our performance, adverse market conditions, adverse changes in laws or regulations, significant unexpected or planned changes in the use of assets, and a variety of other factors. We consider a combination of quantitative and qualitative factors to determine whether a reporting unit is at risk of failing the goodwill impairment test, including: the timing of our most recent quantitative impairment tests and the relative amount by which a reporting unit’s fair value exceeded its then carrying value, the inputs and assumptions underlying our valuation models and the sensitivity of our fair value measurements to those inputs and assumptions, the impact that adverse economic or market conditions may have on the degree of uncertainty inherent in our long-term operating forecasts, and changes in the carrying value of a reporting unit’s net assets from the time of our most recent goodwill impairment test.
The amount of any quantified impairment must be expensed immediately as a charge that is included in operating income, which may impact our ability to raise capital. Should certain assumptions used in the development of the fair value of our reporting units change, we may be required to recognize goodwill or other intangible asset impairments. Refer to Note 11: Goodwill and Other Intangible Assets, Net of our Financial Statements included elsewhere in this Report for additional information related to our goodwill and other identifiable intangible assets. Refer to Critical Accounting Policies and Estimates, in Item 7: Management's Discussion and Analysis of Financial Condition and Results of Operations included elsewhere in this Report for additional information related to the assumptions used in the development of the fair value of our reporting units.
Our global effective tax rate is subject to a variety of different factors that could create volatility in that tax rate, expose us to greater than anticipated tax liabilities, or cause us to adjust previously recognized tax assets and liabilities.
We are subject to income taxes in the United Kingdom (the "U.K."), China, Mexico, the U.S., and many other jurisdictions. As a result, our global effective tax rate from period to period can be affected by many factors, including changes in tax legislation, changes in tax rates and tax laws, our jurisdictional mix of earnings, the use of global funding structures, the tax characteristics of our income, the effects on our revenues and costs of complying with transfer pricing requirements under differing laws of various countries, consequences of acquisitions and dispositions of businesses and business segments, the generation of sufficient future taxable income to realize our deferred tax assets, and the taxation of subsidiary income in the jurisdiction of its parent company regardless of whether or not distributed. Significant judgment is required in determining our worldwide provision for (or benefit from) income taxes, and our determination of the amount of our tax liability is always subject to review by applicable tax authorities. Refer to Note 7: Income Taxes of our Financial Statements included elsewhere in this Report for additional information related to our accounting for income taxes.
We cannot provide any assurances as to what our tax rate will be in any period because of, among other things, uncertainty regarding the nature and extent of our business activities in any particular jurisdiction in the future and the tax laws of such jurisdictions, as well as changes in U.S. and other tax laws, treaties, and regulations, in particular related to proposed tax laws by the U.S. government as a result of a new administration, which could increase our tax liabilities. Our actual global tax rate may vary from our expectation and that variance may be material. We continually monitor all global regulatory developments and consider alternatives to limit their detrimental impacts. However, not all unfavorable developments can be moderated, and we may consequently experience adverse effects on our effective tax rate and cash flows.
For example, the European Commission (the "EC") has been conducting investigations of state aid and have focused on whether EU sovereign country laws or rulings provide favorable treatment to taxpayers conflicting with its interpretation of EU law. EC findings may have retroactive effect and can cause increases in tax liabilities where we considered ourselves in full compliance with local legislation.
Furthermore, on October 8, 2021, the Organization for Economic Co-operation and Development (the "OECD") announced most of its member jurisdictions agreed to the OECD’s Inclusive Framework of the Base Erosion and Profit Shifting project, which establishes global minimum tax rules. These rules have begun to be reflected in local country laws where we do business and are expected to apply beginning in calendar 2024. The precise impact of these laws is not yet known, and we cannot provide assurances that Sensata can mitigate any increases in tax liabilities under these new rules. We continue to monitor developments and will react accordingly.
We could be subject to future audits conducted by both foreign and domestic tax authorities, and the resolution of such audits could impact our tax rate in future periods, as would any reclassification or other changes (such as those in applicable accounting rules) that increases the amounts we have provided for income taxes in our consolidated financial statements. There can be no assurance that we would be successful in attempting to mitigate the adverse impacts resulting from any changes in law, audits, and other matters. Our inability to mitigate the negative consequences of any changes in the law, audits, and other matters could cause our global tax rate to increase, our use of cash to increase, and our financial condition and results of operations to suffer.
We are a holding company and, therefore, may not be able to receive dividends or other payments in needed amounts from our subsidiaries.
We are organized as a holding company, a legal entity that is separate and distinct from our operating entities. As a holding company without significant operations of its own, our principal assets are the shares of capital stock of our subsidiaries. We rely on dividends, interest, and other payments from these subsidiaries to meet our obligations for paying principal and interest on outstanding debt, repurchasing ordinary shares, and corporate expenses. Certain of our subsidiaries are subject to regulatory requirements of the jurisdictions in which they operate or other restrictions that may limit the amounts that subsidiaries can pay in dividends or other payments to us. No assurance can be given that there will not be further changes in law, regulatory actions, or other circumstances that could restrict the ability of our subsidiaries to pay dividends or otherwise make payments to us. Furthermore, no assurance can be given that our subsidiaries may be able to make timely payments to us in order for us to meet our obligations.
Legal and Regulatory Risks
We could be adversely affected by violations of the U.S. Foreign Corrupt Practices Act (the "U.S. FCPA"), the U.K.'s Bribery Act, and similar worldwide anti-bribery laws.
The U.S. FCPA, the U.K.'s Bribery Act, and similar worldwide anti-bribery laws generally prohibit companies and their intermediaries from making improper payments to government officials for the purpose of obtaining or retaining business. Our policies mandate compliance with these anti-bribery laws. We operate in many parts of the world that have experienced governmental corruption to some degree, and in certain circumstances, strict compliance with anti-bribery laws may conflict with local customs and practices. Despite our training and compliance program, we cannot provide assurance that our internal control policies and procedures will protect us from reckless or criminal acts committed by our employees or agents. Violations of these laws, or allegations of such violations, could disrupt our business and result in a material adverse effect on our results of operations, financial condition, and/or cash flows.
Export of our products is subject to various export control regulations and may require a license for export. Any failure to comply with such regulations could result in governmental enforcement actions, fines, penalties, loss of export privileges, or other remedies, which could have a material adverse effect on our business, results of operations, and financial condition.
We are subject to compliance with laws and regulations controlling the import and export of goods, services, software, and technical data. Certain of our products are subject to export regulations of the various jurisdictions in which we operate (“Controlled Items”). The export of many such Controlled Items requires a license from the applicable government agency. Licensing decisions are made based on type of product, its destination, end use, end user, the parties involved in the transaction, national security, and foreign policy. As a result, export license approvals are not guaranteed. We have a trade compliance team and other systems in place to apply for licenses and otherwise comply with import and export regulations. Any failure to maintain compliance with such regulations could limit our ability to import or export raw material and finished goods. These laws and regulations are subject to change, and any such change may limit or exclude existing or future business opportunities, require us to change technology, or incur expenditures to comply with such laws and regulations.
We have discovered in the past, and may discover in the future, deficiencies in our trade compliance program. Although we continue to enhance our trade compliance program, we cannot guarantee that any such enhancements will ensure full compliance with applicable laws and regulations at all times, or that applicable authorities will not raise compliance concerns or perform audits to confirm our compliance with applicable laws and regulations. Any failure by us to comply with applicable laws and regulations could result in governmental enforcement actions, fines, penalties, criminal and/or civil proceedings, or other remedies, any of which could have a material adverse effect on our business, results of operations, and/or financial condition.
Changes in existing environmental or safety laws, regulations, and programs could reduce demand for our products, which could cause our revenue to decline.
A significant amount of our business is generated either directly or indirectly as a result of existing laws, regulations, and programs related to environmental protection, fuel economy, energy efficiency, and safety regulation. Accordingly, a relaxation or repeal of these laws and regulations, or changes in governmental policies regarding the funding, implementation, or enforcement of these programs, could result in a decline in demand for environmental and/or safety products, which may have a material adverse effect on our revenue.
Our operations expose us to the risk of material environmental liabilities, litigation, government enforcement actions, and reputational risk.
We are subject to numerous federal, state, and local environmental protection and health and safety laws and regulations in the various countries where we operate and where our products are sold. These laws and regulations govern, among other things, the generation, storage, use, and transportation of hazardous materials; emissions or discharges of substances into the environment; investigation and remediation of hazardous substances or materials at various sites; greenhouse gas emissions; product hazardous material content; and the health and safety of our employees.
We may not have been, or we may not always be, in compliance with all environmental and health and safety laws and regulations. If we violate these laws, we could be fined, criminally charged, or otherwise sanctioned by regulators. In addition, environmental and health and safety laws are becoming more stringent, resulting in increased costs and compliance burdens.
Certain environmental laws assess liability on current or previous owners or operators of real property for the costs of investigation, removal, and remediation of hazardous substances or materials at their properties or properties at which they have disposed of hazardous substances. Liability for investigation, removal, and remediation costs under certain federal and state laws is retroactive, strict, and joint and several. In addition to cleanup actions brought by governmental authorities, private parties could bring personal injury or other claims due to the presence of, or exposure to, hazardous substances.
We cannot provide assurance that our costs of complying with current or future environmental protection and health and safety laws, or our liabilities arising from past or future releases of, or exposures to, hazardous substances will not exceed our estimates or adversely affect our results of operations, financial condition, and cash flows, or that we will not be subject to additional environmental claims for personal injury, property damage, and/or cleanup in the future based on our past, present, or future business activities.
In addition, our products are subject to various requirements related to chemical usage, hazardous material content, and recycling. The EU, China, and other jurisdictions in which our products are sold have enacted, or are proposing to enact, laws addressing environmental and other impacts from product disposal, use of hazardous materials in products, use of chemicals in manufacturing, recycling of products at the end of their useful life, and other related matters. These laws include but are not limited to the EU RoHS, ELV, and Waste Electrical and Electronic Equipment Directives; the EU REACH regulation; the German Explosives Act; and the China law on Management Methods for Controlling Pollution by Electronic Information Products. These laws prohibit the use of certain substances in the manufacture of our products and directly and indirectly impose a variety of requirements for modification of manufacturing processes, registration, chemical testing, labeling, and other matters. These laws continue to proliferate and expand in these and other jurisdictions to address other materials and aspects of our product manufacturing and sale. These laws could make the manufacture or sale of our products more expensive or impossible, could limit our ability to sell our products in certain jurisdictions, and could result in liability for product recalls, penalties, or other claims.
Our ability to compete effectively depends, in part, on our ability to maintain the proprietary nature of our products and technology.
The electronics industry is characterized by litigation regarding patent and other intellectual property rights. Within this industry, companies have become more aggressive in asserting and defending patent claims against competitors. There can be no assurance that we will not be subject to future litigation alleging infringement or invalidity of certain of our intellectual property rights, or that we will not have to pursue litigation to protect our property rights. Depending on the importance of the technology, product, patent, trademark, or trade secret in question, an unfavorable outcome regarding one of these matters may have a material adverse effect on our results of operations, financial condition, and/or cash flows.
We may be subject to claims that our products or processes infringe on the intellectual property rights of others, which may cause us to pay unexpected litigation costs or damages, modify our products or processes, or prevent us from selling our products.
Third parties may claim that our processes and products infringe their intellectual property rights. Whether or not these claims have merit, we may be subject to costly and time-consuming legal proceedings, and this could divert management’s attention from operating our business. If these claims are successfully asserted against us, we could be required to pay substantial damages, make future royalty payments, and/or could be prevented from selling some or all of our products. We also may be obligated to indemnify our business partners or customers in any such litigation. Furthermore, we may need to obtain licenses from these third parties or substantially re-engineer or rename our products in order to avoid infringement. In addition, we might not be able to obtain the necessary licenses on acceptable terms, or at all, or be able to re-engineer or rename our products successfully. If we are prevented from selling some or all of our products, our sales could be materially adversely affected.
We are a defendant to a variety of litigation in the course of our business that could cause a material adverse effect on our results of operations, financial condition, and/or cash flows.
In the normal course of business, we are, from time to time, a defendant in litigation, including litigation alleging the infringement of intellectual property rights, anti-competitive behavior, product liability, breach of contract, and employment-related claims. In certain circumstances, patent infringement and antitrust laws permit successful plaintiffs to recover treble damages. The defense of these lawsuits may divert our management's attention, and we may incur significant expenses in defending these lawsuits. In addition, we may be required to pay damage awards or settlements, or become subject to injunctions or other equitable remedies, that could cause a material adverse effect on our results of operations, financial condition, and/or cash flows.
U.K. Domicile Risks
As a public limited company incorporated under the laws of England and Wales, we may have less flexibility with respect to certain aspects of capital management.
English law imposes additional restrictions on certain corporate actions. For example, English law provides that a board of directors may only allot, or issue, securities with the prior authorization of shareholders, such authorization being up to the aggregate nominal amount of shares and for a maximum period of five years, each as specified in the articles of association or relevant shareholder resolution. English law also generally provides shareholders with preemptive rights when new shares are issued for cash; however, it is possible for the articles of association, or shareholders at a general meeting, to exclude preemptive rights. Such an exclusion of preemptive rights may be for a maximum period of up to five years as specified in the articles of association or relevant shareholder resolution. We currently only have authorization to issue shares under our equity plan excluding preemptive rights until our next annual general meeting. This authorization and exclusion needs to be renewed by our shareholders periodically and we intend to renew the authorization and exclusion at each annual general meeting.
English law also requires us to have available "distributable reserves" to make share repurchases or pay dividends to shareholders. Distributable reserves may be created through the earnings of the U.K. parent company or other actions. While we intend to maintain a sufficient level of distributable reserves, there is no assurance that we will continue to generate sufficient earnings in order to maintain the necessary level of distributable reserves to make share repurchases or pay dividends.
English law also generally prohibits a company from repurchasing its own shares by way of "off-market purchases" without the prior approval of our shareholders. Such approval lasts for a maximum period of up to five years. Our shares are traded on the New York Stock Exchange, which is not a recognized investment exchange in the U.K. Consequently, any repurchase of our shares is currently considered an "off-market purchase." Our current authorization expires on May 28, 2025, and we intend to renew this authorization periodically.
As a public limited company incorporated under the laws of England and Wales, the enforcement of civil liabilities against us may be more difficult.
Because we are a public limited company incorporated under the laws of England and Wales, investors could experience more difficulty enforcing judgments obtained against us in U.S. courts than would have been the case for a U.S. company. In addition, it may be more difficult (or impossible) to bring some types of claims against us in courts in England than it would be to bring similar claims against a U.S. company in a U.S. court.
As a public limited company incorporated under the laws of England and Wales, it may not be possible to effect service of process upon us within the U.S. to enforce judgments of U.S. courts against us based on the civil liability provisions of the U.S. federal securities laws.
There is doubt as to the enforceability in England and Wales, in original actions or in actions for enforcement of judgments of U.S. courts, of civil liabilities solely based on the U.S. federal securities laws. The English courts will, however, treat any amount payable by us under U.S. judgment as a debt and new proceedings can be commenced in the English courts to enforce this debt against us. The following criteria must be satisfied for the English court to enforce the debt created by the U.S. judgment: (1) the U.S. court having had jurisdiction over the original proceedings according to English conflicts of laws principles and rules of English private international law at the time when proceedings were initiated; (2) the U.S. proceedings not having been brought in breach of a jurisdiction or arbitration clause except with the agreement of the defendant or the defendant’s subsequent submission to the jurisdiction of the court; (3) the U.S. judgment being final and conclusive on the merits in the sense of being final and unalterable in the court which pronounced it and being for a definite sum of money; (4) the recognition or enforcement, as the case may be, of the U.S. judgment not contravening English public policy in a sufficiently significant way or contravening the Human Rights Act 1998 (or any subordinate legislation made thereunder, to the extent applicable); (5) the U.S. judgment not being for a sum payable in respect of taxes, or other charges of a like nature, or in respect of a penalty or fine, or otherwise based on a U.S. law that an English court considers to be a penal or revenue law; (6) the U.S. judgment not having been arrived at by doubling, trebling or otherwise multiplying a sum assessed as compensation for the loss or damages sustained, and not otherwise being a judgment contrary to section 5 of the Protection of Trading Interests Act 1980 or is a judgment based on measures designated by the Secretary of State under Section 1 of that Act; (7) the U.S. judgment not having been obtained by fraud or in breach of English principles of natural justice; (8) the U.S. judgment not being a judgment on a matter previously determined by an English court, or another court whose judgment is entitled to recognition (or enforcement as the case may be) in England, in proceedings involving the same parties that conflicts with an earlier judgment of such court; (9) the party seeking enforcement (being a party who is not ordinarily resident in some part of the U.K. or resident in an EU Member State) providing security for costs, if ordered to do so by the English courts; and (10) the English enforcement proceedings being commenced within the relevant limitation period.
If an English court gives judgment for the sum payable under a U.S. judgment, the English judgment will be enforceable by methods generally available for this purpose. These methods generally permit the English court discretion to prescribe the manner of enforcement. In addition, in any enforcement proceedings, the judgment debtor may raise any counterclaim that could have been brought if the action had been originally brought in England unless the subject of the counterclaim was in issue and denied in the U.S. proceedings.
ITEM 1B. UNRESOLVED STAFF COMMENTS
None.
ITEM 2. PROPERTIES
As of December 31, 2022, we occupied principal manufacturing facilities and business centers in the following locations:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | Reportable Segment | | Approximate Square Footage (in thousands) |
| | | | | | Performance Sensing | | Sensing Solutions | |
| Country | | Location | | | | | | Owned | | Leased |
| Bulgaria | | Botevgrad | | | | X | | | | 169 | | — |
| Bulgaria | | Plovdiv | | | | X | | | | 125 | | — |
| Bulgaria | | Sofia | | | | X | | | | — | | 121 |
| China | | Baoying (1) | | | | X | | X | | 301 | | 385 |
| China | | Changzhou | | | | X | | X | | 362 | | 256 |
| India | | Pune | | | | X | | X | | — | | 32 |
| Malaysia | | Subang Jaya | | | | X | | | | 138 | | — |
| Mexico | | Aguascalientes | | | | X | | X | | 489 | | — |
| Mexico | | Mexicali | | | | X | | X | | 41 | | 116 |
| Mexico | | Tijuana | | | | X | | X | | — | | 235 |
| The Netherlands | | Hengelo | | | | X | | X | | — | | 94 |
| United Kingdom | | Antrim | | | | X | | | | — | | 137 |
| | | | | | | | | | | | |
| United Kingdom | | Swindon (2) | | | | X | | | | — | | 34 |
| United States | | Attleboro, MA (3) | | | | X | | X | | — | | 443 |
| United States | | Carpinteria, CA | | | | X | | X | | — | | 51 |
| United States | | Grandview, MO | | | | | | X | | — | | 47 |
| United States | | Thousand Oaks, CA | | | | X | | X | | — | | 115 |
| United States | | Burlington, VT (4) | | | | | | X | | — | | 133 |
| | | | | | | | | | 1,625 | | 2,199 |
__________________________
(1) The owned portion of the properties in this location serves the Sensing Solutions segment only.
(2) Our U.K. headquarters is located in this facility.
(3) Our U.S. headquarters is located in this facility.
(4) This facility was added with the acquisition of Dynapower.
These facilities are primarily devoted to research, development, engineering, manufacturing, and assembly. In addition to these principal facilities, we occupy other manufacturing, engineering, warehousing, administrative, and sales facilities worldwide, which are primarily leased.
We consider our manufacturing facilities sufficient to meet our current operational requirements. An increase in demand for our products may require us to expand our production capacity, which could require us to identify and acquire or lease additional manufacturing facilities. We believe that suitable additional or substitute facilities will be available as required; however, if we are unable to acquire, integrate, and move into production the facilities, equipment, and personnel necessary to meet such an increase in demand, our customer relationships, results of operations, and/or financial condition may suffer materially. Leases covering our currently occupied principal leased facilities expire at varying dates within the next 14 years. We do not anticipate difficulty in retaining occupancy through lease renewals, month-to-month occupancy, or by replacing the leased facilities with equivalent facilities.
A significant portion of our owned properties and equipment is subject to a lien under the Senior Secured Credit Facilities. Refer to Note 14: Debt of our Financial Statements included elsewhere in this Report for additional information related to the Senior Secured Credit Facilities.
ITEM 3. LEGAL PROCEEDINGS
We are regularly involved in a number of claims and litigation matters that arise in the ordinary course of business. Although it is not feasible to predict the outcome of these matters, based upon our experience and current information known to us, we do not expect the outcome of these matters, either individually or in the aggregate, to have a material adverse effect on our results of operations, financial condition, or cash flows.
ITEM 4. MINE SAFETY DISCLOSURES
Not applicable.
PART II
ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS, AND ISSUER PURCHASES OF EQUITY SECURITIES
Market Information
Our ordinary shares trade on the New York Stock Exchange under the symbol "ST."
Performance Graph
The following graph compares the total shareholder return of our ordinary shares since December 31, 2017 to the total shareholder return since that date of the Standard & Poor’s ("S&P") 500 Stock Index and the S&P 500 Industrial Index. The graph assumes that the value of the investment in our ordinary shares and each index was $100.00 on December 31, 2017.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Total Shareholder Return of $100.00 Investment from December 31, 2017 |
| | As of December 31, |
| | | 2017 | | 2018 | | 2019 | | 2020 | | 2021 | | 2022 |
| Sensata | | $ | 100.00 | | | $ | 87.73 | | | $ | 105.40 | | | $ | 103.19 | | | $ | 120.70 | | | $ | 79.61 | |
S&P 500 | | $ | 100.00 | | | $ | 95.62 | | | $ | 125.72 | | | $ | 148.85 | | | $ | 191.58 | | | $ | 156.88 | |
S&P 500 Industrial | | $ | 100.00 | | | $ | 85.00 | | | $ | 107.81 | | | $ | 117.52 | | | $ | 140.32 | | | $ | 130.35 | |
The information in the graph and table above is not "soliciting material," is not deemed "filed" with the United States (the "U.S.") Securities and Exchange Commission, and is not to be incorporated by reference in any of our filings under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, whether made before or after the date of this Annual Report on Form 10-K (this "Report"), except to the extent that we specifically incorporate such information by reference. The total shareholder return shown on the graph represents past performance and should not be considered an indication of future price performance.
Stockholders
As of January 27, 2023, there were three holders of record of our ordinary shares, primarily Cede & Co. (which acts as nominee shareholder for the Depository Trust Company).
Dividends
In April 2022, our Board of Directors approved our first quarterly dividend of $0.11 per share, paid in May 2022. Subsequent to this payment, we made additional quarterly payments in August 2022 and November 2022, each at $0.11 per share. Because we are a holding company, our ability to continue to pay cash dividends on our ordinary shares may be limited by restrictions on our ability to obtain sufficient funds through dividends from our subsidiaries, including restrictions under the terms of the agreements governing our indebtedness. In that regard, our indirect, wholly-owned subsidiary, Sensata Technologies B.V. ("STBV"), may be limited in its ability to pay dividends or otherwise make distributions to its immediate parent company and, ultimately, to us. Refer to Note 14: Debt of our audited consolidated financial statements and accompanying notes thereto included elsewhere in this Report for additional information related to our dividend restrictions.
Additionally, certain of our subsidiaries may be limited in their ability to pay dividends or make other distributions to the extent that the shareholders' equity of such subsidiary exceeds the reserves required to be maintained by law or under its articles of association. Under the laws of England and Wales, we are able to declare dividends, make distributions, or repurchase shares only out of distributable reserves on our statutory balance sheet. Distributable reserves are a company’s accumulated, realized profits, so far as not previously utilized by distribution or capitalization, less its accumulated, realized losses, so far as not previously written off in a reduction or reorganization of capital duly made. Realized reserves are determined in accordance with International Financial Reporting Standards at the time the relevant accounts are prepared. We are not permitted to make a distribution if, at the time, the amount of our net assets is less than the aggregate of our issued and paid-up share capital and undistributable reserves or to the extent that the distribution will reduce our net assets below such amount. Subject to these limitations, the payment of future cash dividends will depend upon such factors as earnings levels, capital requirements, contractual restrictions, our overall financial condition, and any other factors deemed relevant by our shareholders and Board of Directors.
Under current United Kingdom ("U.K.") tax legislation, any future dividends paid by us will not be subject to withholding or deduction on account of U.K. tax, irrespective of the tax residence or the individual circumstances of the recipient shareholder. Shareholders should consult their tax advisors regarding their particular tax situation and the income tax consequences on any potential dividend income received from us.
Issuer Purchases of Equity Securities
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| Period | | Total Number of Shares Purchased (in shares) (1) | | Weighted-Average
Price
Paid per Share | | Total Number of Shares Purchased as Part of Publicly Announced Plan or Programs (in shares)(2) | | Approximate Dollar Value of Shares that May Yet Be Purchased Under the Plan or Programs (in millions) (2) |
| October 1 through October 31, 2022 | | 713,766 | | | $ | 39.67 | | | 708,904 | | | $ | 244.1 | |
| November 1 through November 30, 2022 | | 458,510 | | | $ | 42.75 | | | 457,187 | | | $ | 224.5 | |
| December 1 through December 31, 2022 | | 10,893 | | | $ | 41.16 | | | — | | | $ | 224.5 | |
| Quarter total | | 1,183,169 | | | $ | 40.88 | | | 1,166,091 | | | $ | 224.5 | |
__________________________
(1) The number of ordinary shares presented includes ordinary shares that were withheld to cover payment of employee withholding tax upon the vesting of restricted securities. These withholdings took place outside of a publicly announced repurchase plan. There were 4,862, 1,323, and 10,893 ordinary shares withheld in October 2022, November 2022, and December 2022, respectively, representing a total aggregate fair value of $0.7 million based on the closing price of our ordinary shares on the date of withholdings.
(2) All purchases during the three months ended December 31, 2022 were conducted pursuant to a $500.0 million share repurchase program authorized by our Board of Directors and publicly announced on January 20, 2022 (the “January 2022 Program”). The January 2022 Program does not have an established expiration date.
ITEM 6. RESERVED
ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis is intended to help the reader understand our business, financial condition, results of operations, and liquidity and capital resources. You should read the following discussion in conjunction with Item 1: Business and our audited consolidated financial statements and accompanying notes thereto (the "Financial Statements"), each included elsewhere in this Annual Report on Form 10-K (this "Report").
The statements in this discussion regarding industry outlook, our expectations regarding our future performance, liquidity and capital resources, and other non-historical statements are forward-looking statements. These forward-looking statements are subject to numerous risks and uncertainties including, but not limited to, the risks and uncertainties described in Item 1A: Risk Factors included elsewhere in this Report. Our actual results may differ materially from those contained in or implied by any forward-looking statements.
Overview
We innovate on behalf of our broad array of customers, solving some of their most difficult engineering challenges by providing our products and solutions in the areas that we consider our most significant growth drivers, Electrification, Insights/IoT, and Safe & Efficient. Solving these mission-critical challenges enables us to deliver differentiated value for both our customers and shareholders while also investing in our growth opportunities and our people. Refer to Item 1: Business, included elsewhere in this Report, for additional discussion on our growth drivers, including megatrends.
In fiscal year 2022, we completed two notable acquisitions in Electrification and Insights/IoT, Dynapower and Elastic M2M, Inc. ("Elastic M2M"), respectively. Refer to Item 1: Business – Business Combinations and Note 21: Acquisitions and Divestitures of our Financial Statements, each included elsewhere in this Report, for additional information related to these acquisitions.
We anticipate significant change in the markets that we serve over the next 10 years, as our customers transform their businesses and product portfolios to adjust to decarbonization trends. Many equipment categories are electrifying, and significant investment is being made in global infrastructure to support this trend. During fiscal year 2022, we recognized approximately $460 million of revenue in Electrification. In addition, new business wins ("NBOs") exceeded $1.0 billion in fiscal year 2022, an increase from NBOs of $640 million in fiscal year 2021. We define NBOs as incremental revenue to our current base of business that is expected to be recognized on average in the fifth year after entry into the agreement, when programs typically reach their normal volume. Accordingly, NBOs are an indicator of future revenue potential. Approximately 70% of those NBOs in fiscal year 2022 were in Electrification, which will help drive future revenue outgrowth in this megatrend.
Within our Insights/IoT megatrend initiative, we see a large and fast-growing market opportunity to deliver data insights across heavy, medium, and light vehicle fleets. The Sensata INSIGHTS business addresses this opportunity by providing data and video telematics, asset tracking devices, and other cloud-based solutions. In February 2022, we acquired Elastic M2M, which augments our cloud capabilities critical to delivering actionable sensor-based insights, continuing the expansion of Sensata INSIGHTS begun with the fiscal year 2021 acquisitions of Xirgo Technologies, LLC ("Xirgo") and SmartWitness Holdings, Inc. ("SmartWitness"). Refer to Item 1: Business, included elsewhere in this Report, for additional discussion of the acquisition of Elastic M2M. Sensata INSIGHTS revenue in fiscal year 2022 was approximately $173.3 million.
We believe regulatory requirements for safer vehicles, higher fuel efficiency, and lower emissions, as well as customer demand for operator productivity and convenience, drive the need for advancements in powertrain management, efficiency, safety, and operator controls. These advancements lead to sensor growth rates that we expect to exceed underlying production growth in many of our key end markets, which we expect will continue to offer us significant growth opportunities. In fiscal year 2022, according to third party data, global production of light vehicles increased approximately 6% from fiscal year 2021. Global production in the heavy vehicle and off-road ("HVOR") markets we serve decreased approximately 12% from fiscal year 2021.
Our consolidated revenue increased 5.5% in fiscal year 2022 from the prior year. Excluding a decrease of 2.4% attributed to changes in foreign currency exchange rates and an increase of 3.1% due to the net effect of acquisitions and divestitures, consolidated net revenue increased 4.8% on an organic basis. This reflects organic revenue growth of 3.9% in Performance Sensing and 7.5% in Sensing Solutions. Organic revenue growth (or decline), discussed throughout this Item 7: Management's Discussion and Analysis of Financial Condition and Results of Operations (this "MD&A"), is a financial measure not presented in accordance with U.S. generally accepted accounting principles ("GAAP"). Refer to Non-GAAP Financial Measures included elsewhere in this MD&A for additional information related to our use of organic revenue growth (or decline).
While our underlying markets were pressured by continuing supply chain disruptions, we produced 820 basis points of market outgrowth in fiscal year 2022, which includes higher pricing, content growth in the automotive and aerospace businesses, and new Electrification launches in our Industrial business. We use the term "market outgrowth" to describe the impact of an increasing quantity and value of our products used in customer systems and applications, above normal market growth. It is only loosely correlated to normal unit demand fluctuations in the markets we serve. We believe we can continue to deliver end market outgrowth based on our high levels of new business awards and our large and expanding pipeline of new opportunities.
Operating income for the year ended December 31, 2022 increased $36.9 million, or 5.8%, to $670.1 million (16.6% of net revenue) compared to $633.2 million (16.6% of net revenue) in the prior year. This increase was primarily due to higher volumes, improved pricing to offset inflationary material and logistics costs, partially offset by unfavorable movements in foreign currency, the impact from investments in the growth vectors of Electrification and Insights/IoT, and the divestiture of various assets and liabilities comprising our semiconductor test and thermal business (collectively, the "Qinex Business"). Refer to Results of Operations included elsewhere in this MD&A for additional discussion of our earnings results for the year ended December 31, 2022.
We have sufficient cash to take advantage of strategic opportunities as they arise. We generated $460.6 million of operating cash flow in fiscal year 2022, ending the year with $1.2 billion in cash. In fiscal year 2022, we used approximately $631.5 million in cash for acquisitions and approximately $292.3 million for share repurchases. We also paid approximately $51.1 million in cash dividends. In fiscal year 2023, we will continue to return capital to shareholders through our dividend and opportunistic share repurchases. We expect improving free cash flow will naturally allow leverage to decline and returns on invested capital to improve over time. On January 31, 2023, we announced that we intended to pay down $250.0 million of principal on the balance outstanding of the term loan facility (the “Term Loan”) under the senior secured credit facilities (the "Senior Secured Credit Facilities"). That payment was completed on February 6, 2023.
Our long-standing mission is to help create a cleaner, safer, and more connected world, not just for our customer's products but also through our own operations. We reduced our greenhouse gas emission intensity by more than 10% in fiscal year 2022, reaching our fiscal year 2026 target four years earlier than anticipated. In addition, we're on our way to achieving the other targets laid out in our Sustainability Report, bolstering the long-term sustainability and success of the company for all of its stakeholders.
Selected Segment Information
We present financial information for two reportable segments, Performance Sensing and Sensing Solutions. Set forth below is selected information for each of these segments for the periods presented. Amounts and percentages in the tables below have been calculated based on unrounded numbers, accordingly, certain amounts may not appear to recalculate due to the effect of rounding.
The following table presents net revenue by segment for the identified periods:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| | 2022 | | 2021 | | 2020 |
| ($ in millions) | Amount | | Percent of Total | | Amount | | Percent of Total | | Amount | | Percent of Total |
| Net revenue: | | | | | | | | | | | |
| Performance Sensing | $ | 2,976.8 | | | 73.9 | % | | $ | 2,847.9 | | | 74.5 | % | | $ | 2,223.8 | | | 73.0 | % |
| Sensing Solutions | 1,052.5 | | | 26.1 | | | 972.9 | | | 25.5 | | | 821.8 | | | 27.0 | |
| Total net revenue | $ | 4,029.3 | | | 100.0 | % | | $ | 3,820.8 | | | 100.0 | % | | $ | 3,045.6 | | | 100.0 | % |
The following table presents segment operating income in U.S. dollars ("USD") and as a percentage of segment net revenue for the identified periods:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| | 2022 | | 2021 | | 2020 |
| ($ in millions) | Amount | | Percent of
Segment
Net Revenue | | Amount | | Percent of
Segment
Net Revenue | | Amount | | Percent of
Segment
Net Revenue |
| Segment operating income: | | | | | | | | | | | |
| Performance Sensing | $ | 751.6 | | | 25.2 | % | | $ | 777.2 | | | 27.3 | % | | $ | 532.5 | | | 23.9 | % |
| Sensing Solutions | 300.0 | | | 28.5 | % | | 293.2 | | | 30.1 | % | | 241.2 | | | 29.4 | % |
| Total segment operating income | $ | 1,051.7 | | | | | $ | 1,070.4 | | | | | $ | 773.7 | | | |
For a reconciliation of total segment operating income to consolidated operating income, refer to Note 20: Segment Reporting of our Financial Statements included elsewhere in this Report.
Selected Geographic Information
We are a global business with significant operations around the world and a diverse revenue mix by geography, customer, and end market. The following table presents (as a percentage of total) property, plant and equipment ("PP&E") and net revenue by geographic region for the identified periods:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| PP&E, net as of December 31, | | Net revenue for the year ended December 31, |
| 2022 | | 2021 | | 2022 | | 2021 | | 2020 |
| Americas | 33.7 | % | | 32.3 | % | | 42.3 | % | | 38.0 | % | | 39.3 | % |
| Europe | 20.0 | % | | 22.0 | % | | 25.9 | % | | 26.2 | % | | 26.8 | % |
| Asia and rest of world | 46.3 | % | | 45.7 | % | | 31.8 | % | | 35.8 | % | | 33.9 | % |
Refer to Note 20: Segment Reporting of our Financial Statements included elsewhere in this Report for additional information related to our PP&E, net balances by selected geographic area as of December 31, 2022 and 2021 and net revenue by selected geographic area for the years ended December 31, 2022, 2021, and 2020.
Net Revenue by End Market
Our net revenue for the years ended December 31, 2022, 2021, and 2020 was derived from the following end markets:
| | | | | | | | | | | | | | | | | |
| For the year ended December 31, |
| (Percentage of total) | 2022 | | 2021 | | 2020 |
| Automotive | 52.3 | % | | 54.0 | % | | 57.5 | % |
| HVOR | 22.5 | % | | 21.7 | % | | 16.7 | % |
| Industrial | 13.0 | % | | 10.8 | % | | 11.0 | % |
Appliance and HVAC (1) | 5.4 | % | | 6.4 | % | | 6.2 | % |
| Aerospace | 3.8 | % | | 3.5 | % | | 4.5 | % |
| Other | 3.0 | % | | 3.6 | % | | 4.1 | % |
__________________________
(1) Heating, ventilation and air conditioning
We are a significant supplier to multiple original equipment manufacturers within many of these end markets, thereby reducing customer concentration risk.
Factors Affecting Our Operating Results
The following discussion describes components of the consolidated statements of operations as well as factors that impact those components. Refer to Note 2: Significant Accounting Policies of our Financial Statements included elsewhere in this Report, and Critical Accounting Policies and Estimates included elsewhere in this MD&A for additional information related to the accounting policies and estimates made related to these components. Refer to Results of Operations included elsewhere in this MD&A for discussion of the actual impact on our financial statements of these factors.
Net revenue
We derive a significant portion of our revenue from sales into the automotive end market, and conditions in the automotive industry can have a significant impact on the amount of revenue that we recognize. Outside of the automotive industry, we sell our products and solutions to end-users in a wide range of industries, end markets, and geographic regions, and the drivers of demand for these products and solutions vary considerably and are influenced by industry, market, or geographic conditions. Changes in demand for these products and solutions could impact our revenue materially. Our overall net revenue is impacted by various factors, which we characterize as "organic" or "inorganic." Inorganic factors include fluctuations in foreign currency exchange rates and the net effect of acquisitions and divestitures.
Organic factors include fluctuations in overall economic activity within the industries, end markets, and geographic regions in which we operate, which we term market growth. Other organic factors combine to reflect what we refer to as market outgrowth. Such factors include (but are not limited to): (a) the number of our products used within existing applications, or the development of new applications requiring these products, due to regulations or other factors; (b) the "mix" of products sold, including the proportion of new or upgraded products and their pricing relative to existing products; (c) changes in product sales prices (including quantity discounts, rebates, and cash discounts for prompt payment); (d) changes in the level of competition faced by our products, including the launch of new products by competitors; (e) our ability to successfully develop, launch, and sell new products and applications; and (f) the evolution of the markets we serve to safer, cleaner, and more efficient, electrified, and connected technologies.
While the factors described above may impact net revenue in each of our reportable segments, the magnitude of that impact can differ. For more information about revenue risks relating to our business, refer to Item 1A: Risk Factors included elsewhere in this Report.
Cost of revenue
We manufacture most of our products, subcontracting only a limited number to third parties. As such, our cost of revenue consists principally of the following:
•Production Materials Costs. We source production materials globally to ensure a highly effective and efficient supply chain. However, we are still impacted by local market conditions, including fluctuations in foreign currency exchange rates. A portion of our production materials contains certain commodities, resins, and metals, the cost of which may vary with underlying pricing and foreign currency exchange rates. We use forward contracts to economically hedge a portion of our exposure to the potential change in prices associated with certain of these commodities, including the impact of exchange rate fluctuations. The terms of these forward contracts fix the price of these commodities at a future date for various notional amounts. Gains and losses recognized on these derivatives are recorded in other, net and are not included in cost of revenue. Refer to Note 6: Other, Net of our Financial Statements included elsewhere in this Report for additional information.
•Employee Costs. Wages and benefits, including variable incentive compensation, for employees involved in our manufacturing operations and certain customer service and engineering activities is reflected in cost of revenue. A substantial portion of these costs can fluctuate on an aggregate basis in direct correlation with changes in production volumes. These costs may decline as a percentage of net revenue due to economies of scale associated with higher production volumes, and conversely, may increase with lower production volumes. These costs also fluctuate based on local labor market conditions. We rely on contract workers for direct labor in certain geographies. As of December 31, 2022, we had approximately 1,800 direct labor contract workers worldwide.
•Sustaining Engineering Activity Costs. Modifications of existing products for use by new and existing customers in familiar applications are included in cost of revenue, as are costs related to improvements in our manufacturing processes.
•Other. Our remaining cost of revenue primarily consists of: gains and losses on certain foreign currency forward contracts that are designated as cash flow hedges; material yields; costs to import raw materials, such as tariffs; depreciation of fixed assets used in the manufacturing process; freight costs; warehousing expenses; maintenance and repair expenses; costs of quality assurance; operating supplies; and other general manufacturing expenses, such as expenses for energy consumption and operating lease expense.
Changes in cost of revenue as a percentage of net revenue have historically been impacted by several factors, including:
•changes in the price of raw materials, including the impact of changes in costs to import such raw materials, such as tariffs;
•changes in customer prices and surcharges;
•implementation of cost improvement measures aimed at increasing productivity, including reduction of fixed production costs, refinements in inventory management, design and process driven changes, and the coordination of procurement within each subsidiary and at the business level;
•product lifecycles, as we typically incur higher costs associated with new product development (related to excess manufacturing capacity and higher production costs during the initial stages of product launches) and during the phase-out of discontinued products;
•changes in production volumes, as a portion of production costs are fixed;
•transfer of production to our lower-cost manufacturing facilities;
•changes in depreciation expense, including those arising from the adjustment of PP&E to fair value associated with acquisitions;
•fluctuations in foreign currency exchange rates;
•changes in product mix;
•changes in logistics costs;
•acquisitions and divestitures – acquired and divested businesses may generate higher or lower cost of revenue as a percentage of net revenue than our core business; and
•the increase in the carrying value of inventory adjusted to fair value upon the application of purchase accounting associated with acquisitions.
Research and development expense
We develop products that address increasingly complex engineering and operating performance requirements to help our customers solve their most difficult challenges in the automotive, HVOR, fleet management, industrial, clean energy, and aerospace industries. We believe that continued focused investment in research and development ("R&D") is critical to our future growth and maintaining our leadership positions in the markets we serve. Our R&D efforts are directly related to timely development of new and enhanced products that are central to our business strategy. We continually develop our technologies to meet an evolving set of customer requirements and new product introductions. We conduct such activities in areas that we believe will increase our long-term revenue growth. Our development expense is typically associated with engineering core technology platforms to specific applications and engineering major upgrades that improve the functionality or reduce the cost of existing products. In addition, we continually consider new technologies where we may have expertise for potential investment or acquisition.
A large portion of our R&D activities is directed towards technologies and megatrends that we believe have the potential for significant future growth, but that relate to products that are not currently within our core business or include new features and capabilities for existing products. Expenses related to these activities are less likely to result in increased near-term revenue than our more mainstream development activities.
R&D expense consists of costs related to product design, development, and process engineering. Costs related to modifications of existing products for use by new and existing customers in familiar applications are presented in cost of revenue and are not included in R&D expense. The level of R&D expense in any period is related to the number of products in development, the stage of the development process, the complexity of the underlying technology, the potential scale of the product upon successful commercialization, and the level of our exploratory research.
Selling, general and administrative expense
Selling, general and administrative ("SG&A") expense consists of all expenditures incurred in connection with the sale and marketing of our products, as well as administrative overhead costs, including: salary and benefit costs for sales and marketing personnel and administrative staff; share-based incentive compensation expense; charges related to the use and maintenance of administrative offices, including depreciation expense; other administrative costs, including expenses relating to information systems, human resources, and legal, finance, and accounting services; other selling and marketing related costs, such as expenses incurred in connection with travel and communications; and transaction costs associated with acquisitions.
Changes in SG&A expense as a percentage of net revenue have historically been impacted by a number of factors, including:
•changes in sales volume, as higher volumes enable us to spread the fixed portion of our selling, marketing, and administrative expense over higher revenue (e.g. expenses relating to our sales and marketing personnel can fluctuate due to prolonged trends in sales volume, while expenses relating to administrative personnel generally do not increase or decrease directly with changes in sales volume);
•changes in customer prices and surcharges;
•changes in the mix of products we sell, as some products may require more customer support and sales effort than others;
•new product launches in existing and new markets, as these launches typically involve a more intense sales and marketing activity before they are integrated into customer applications and systems;
•changes in our customer base, as new customers may require different levels of sales and marketing attention;
•fluctuations in foreign currency exchange rates; and
•acquisitions and divestitures - acquired and divested businesses may require different levels of SG&A expense as a percentage of net revenue than our core business.
Depreciation expense
Depreciation expense includes depreciation of PP&E, which includes assets held under finance lease and amortization of leasehold improvements. Depreciation expense is included in either cost of revenue or SG&A expense depending on the use of the asset as a manufacturing or administrative asset. Depreciation expense will vary according to the age of existing PP&E and the level of capital expenditures.
Amortization expense
We have recognized a significant amount of definite-lived intangible assets. Acquisition-related definite-lived intangible assets are amortized on an economic-benefit basis according to the useful lives of the assets, or on a straight-line basis if a pattern of economic benefits cannot be reliably determined. The amount of amortization expense related to definite-lived intangible assets depends on the amount and timing of definite-lived intangible assets acquired and where previously acquired definite-lived intangible assets are in their estimated life-cycle. In general, the economic benefit of a definite-lived intangible asset is concentrated towards the beginning of its useful life.
Restructuring and other charges, net
Restructuring and other charges, net consists of severance, outplacement, other separation benefits, and facility and other exit costs. These charges may be incurred as part of an announced restructuring plan or may be individual charges recognized related to acquired businesses or the termination of a limited number of employees that do not represent the initiation of a larger restructuring plan. Restructuring and other charges, net also includes the gain, net of transaction costs, from the sale of businesses, expense incurred from acquisition-related compensation arrangements, and other operating income or expense that is not presented elsewhere in operating income.
Amounts recognized in restructuring and other charges, net will vary according to the extent of our restructuring programs and other income or expense items not presented elsewhere in operating income.
Interest expense, net
As of December 31, 2022 and 2021, we had gross outstanding indebtedness of $4,273.4 million and $4,280.2 million, respectively. This indebtedness consists of a secured credit facility and senior unsecured notes. Refer to Note 14: Debt of our Financial Statements included elsewhere in this Report for additional information.
The credit agreement governing our secured credit facility (as amended, the "Credit Agreement") provides for the Senior Secured Credit Facilities, consisting of the Term Loan, the $750.0 million revolving credit facility (the "Revolving Credit Facility"), and incremental availability (the "Accordion") under which additional secured credit facilities could be issued under certain circumstances.
Our various tranches of senior unsecured notes (the "Senior Notes") accrue interest at fixed rates. However, the Term Loan and the Revolving Credit Facility accrue interest at variable interest rates, which drives some of the variability in interest expense, net. Refer to Item 7A: Quantitative and Qualitative Disclosures About Market Risk included elsewhere in this Report for more information regarding our exposure to potential changes in variable interest rates.
Interest income, which is netted against interest expense on the consolidated statements of operations, relates to interest earned on our cash and cash equivalent balances, and varies according to the balances in, and the interest rates provided by, these investments.
Other, net
Other, net primarily includes gains and losses associated with the remeasurement of non-USD denominated monetary assets and liabilities into USD, changes in the fair value of derivative financial instruments not designated as cash flow hedges, mark-to-market gains and losses on investments, losses on debt financing transactions, and net periodic benefit cost, excluding service cost.
Amounts recognized in other, net vary according to changes in foreign currency exchange rates, changes in the forward prices for the foreign currencies and commodities that we hedge, the value of equity investments recorded on our consolidated balance sheets at fair value, the number and magnitude of debt financing transactions we undertake, and the change in funded status of our pension and other post-retirement benefit plans.
Refer to Note 6: Other, Net of our Financial Statements included elsewhere in this Report for additional information related to the components of other, net. Refer to Item 7A: Quantitative and Qualitative Disclosures About Market Risk included elsewhere in this Report for additional information related to our exposure to potential changes in foreign currency exchange rates and commodity prices. Refer to Note 14: Debt of our Financial Statements included elsewhere in this Report for additional information related to our debt financing transactions.
Provision for (or benefit from) income taxes
We are subject to income tax in the various jurisdictions in which we operate. The provision for (or benefit from) income taxes consists of: current tax expense, which relates primarily to our profitable operations in non-U.S. tax jurisdictions and withholding taxes related to interest, royalties, and repatriation of foreign earnings; and deferred tax expense (or benefit), which represents adjustments in book-to-tax basis differences primarily related to the step-up in fair value of fixed and intangible assets, including goodwill, acquired in connection with business combination transactions, the utilization of net operating losses, changes in tax rates, and changes in our assessment of the realizability of our deferred tax assets.
Our current tax expense is favorably impacted by the amortization of definite-lived intangible assets and other tax benefits derived from our operating and capital structure, including tax incentives in both the United Kingdom (the "U.K.") and China as well as favorable tax status in Mexico. In addition, our tax structure takes advantage of participation exemption regimes that permit the receipt of intercompany dividends without incurring taxable income in those jurisdictions.
While the extent of our future tax liability is uncertain, the impact of purchase accounting for past and future acquisitions, changes to debt and equity capitalization of our subsidiaries, and the realignment of the functions performed and risks assumed by our various subsidiaries are among the factors that will determine the future book and taxable income of each of our subsidiaries and of Sensata as a whole.
Our effective tax rate will generally not equal the U.S. statutory tax rate due to various factors, the most significant of which are described below. As these factors fluctuate from year to year, our effective tax rate will change. The factors include, but are not limited to, the following:
•establishing or releasing a portion of the valuation allowance related to our gross deferred tax assets;
•foreign tax rate differential - we operate in locations outside the U.S., including Belgium, Bulgaria, China, Malaysia, Malta, the Netherlands, South Korea, and the U.K., that historically have had statutory tax rates different than the U.S. statutory tax rate. This can result in a foreign tax rate differential that may reflect a tax benefit or detriment. This foreign tax rate differential can change from year to year based upon the jurisdictional mix of earnings and changes in current and future enacted tax rates, tax holidays, and favorable tax regimes available to certain of our foreign subsidiaries;
•changes in tax laws and rates, also Organization for Economic Co-operation and Development ("OECD") developments and European Commission ("EC") challenges to sovereign European Union member states;
•losses incurred in certain jurisdictions, which cannot be currently benefited, if it is not more likely than not that the associated deferred tax asset will be realized in the foreseeable future;
•foreign currency exchange gains and losses;
•as a result of income tax audit settlements, final assessments, or lapse of applicable statutes of limitation, we may recognize an income tax expense or benefit including adjustment of previously accrued interest and penalties; and
•in certain jurisdictions, we recognize withholding and other taxes on intercompany payments, including dividends, and such taxes are deducted if they cannot be credited against the recipient's tax liability in its country of residence.
Seasonality
Refer to Item 1: Business included elsewhere in this Report for discussion of our assessment of seasonality related to our business.
Legal Proceedings
Refer to Item 3: Legal Proceedings included elsewhere in this Report for discussion of legal proceedings related to our business.
Results of Operations
Our discussion and analysis of results of operations are based upon our Financial Statements included elsewhere in this Report. The Financial Statements have been prepared in accordance with U.S. GAAP. The preparation of the Financial Statements requires us to make estimates and judgments that affect the amounts reported therein. We base our estimates on historical experience and assumptions believed to be reasonable under the circumstances, and we re-evaluate such estimates on an ongoing basis. Actual results could differ from our estimates under different assumptions or conditions. Our significant accounting policies and estimates are more fully described in Note 2: Significant Accounting Policies of our Financial Statements included elsewhere in this Report and Critical Accounting Policies and Estimates included elsewhere in this MD&A.
The table below presents our historical results of operations in millions of dollars and as a percentage of net revenue. We have derived these results of operations from our Financial Statements. Amounts and percentages in the table below have been calculated based on unrounded numbers, accordingly, certain amounts may not appear to recalculate due to the effect of rounding.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| | 2022 | | 2021 | | 2020 |
| Amount | | Percent of
Net Revenue | | Amount | | Percent of
Net Revenue | | Amount | | Percent of
Net Revenue |
| Net revenue: | | | | | | | | | | | |
| Performance Sensing | $ | 2,976.8 | | | 73.9 | % | | $ | 2,847.9 | | | 74.5 | % | | $ | 2,223.8 | | | 73.0 | % |
| Sensing Solutions | 1,052.5 | | | 26.1 | | | 972.9 | | | 25.5 | | | 821.8 | | | 27.0 | |
| Total net revenue | 4,029.3 | | | 100.0 | % | | 3,820.8 | | | 100.0 | % | | 3,045.6 | | | 100.0 | % |
| | | | | | | | | | | |
| | | | | | | | | | | |
| | | | | | | | | | | |
| | | | | | | | | | | |
| | | | | | | | | | | |
| | | | | | | | | | | |
| Operating costs and expenses | 3,359.1 | | | 83.4 | | | 3,187.6 | | | 83.4 | | | 2,707.8 | | | 88.9 | |
| Operating income | 670.1 | | | 16.6 | | | 633.2 | | | 16.6 | | | 337.7 | | | 11.1 | |
| Interest expense, net | (178.8) | | | (4.4) | | | (179.3) | | | (4.7) | | | (171.8) | | | (5.6) | |
| Other, net | (94.6) | | | (2.3) | | | (40.0) | | | (1.0) | | | (0.3) | | | 0.0 | |
| Income before taxes | 396.7 | | | 9.8 | | | 413.9 | | | 10.8 | | | 165.6 | | | 5.4 | |
| Provision for income taxes | 86.0 | | | 2.1 | | | 50.3 | | | 1.3 | | | 1.4 | | | 0.0 | |
| Net income | $ | 310.7 | | | 7.7 | % | | $ | 363.6 | | | 9.5 | % | | $ | 164.3 | | | 5.4 | % |
Net revenue - Overall
Net revenue for the year ended December 31, 2022 increased 5.5% compared to the year ended December 31, 2021. Excluding a decrease of 2.4% attributed to changes in foreign currency exchange rates and an increase of 3.1% due to the net effect of acquisitions and divestitures, net revenue increased 4.8% on an organic basis, which represented market outgrowth of 820 basis points.
Net revenue for the year ended December 31, 2021 increased 25.5% compared to the year ended December 31, 2020 largely due to improved market results and our continued outperformance relative to those markets. Excluding an increase of 2.3% attributed to changes in foreign currency exchange rates and an increase of 2.5% due to the effect of acquisitions, net revenue increased 20.7% on an organic basis, which represented market outgrowth of 960 basis points.
Net Revenue - Performance Sensing
Fiscal year 2022 vs. fiscal year 2021
Performance Sensing net revenue for the year ended December 31, 2022 increased 4.5% compared to the year ended December 31, 2021. Excluding a decrease of 2.7% attributed to changes in foreign currency exchange rates and an increase of 3.3% due to the effect of acquisitions, Performance Sensing net revenue increased 3.9% on an organic basis. Both the Automotive and HVOR operating segments contributed to these results as discussed below.
Automotive net revenue for the year ended December 31, 2022 increased 2.7% compared to the year ended December 31, 2021. Excluding a decrease of 3.0% attributed to changes in foreign currency exchange rates, automotive net revenue increased 5.7% on an organic basis. This organic revenue growth was primarily due to continued content growth and pricing.
HVOR net revenue for the year ended December 31, 2022 increased 9.0% compared to the year ended December 31, 2021. Excluding a decrease of 1.7% attributed to changes in foreign currency exchange rates and an increase of 11.4% due to the effect of acquisitions, HVOR net revenue decreased 0.7% on an organic basis. This organic revenue decline was primarily due to declining market conditions, largely offset by continued content growth and pricing.
Fiscal year 2021 vs. fiscal year 2020
Performance Sensing net revenue for the year ended December 31, 2021 increased 28.1% compared to the year ended December 31, 2020. Excluding an increase of 2.4% attributed to changes in foreign currency exchange rates and an increase of 3.4% due to the effect of acquisitions, Performance Sensing net revenue increased 22.3% on an organic basis compared to the year ended December 31, 2020. Both the Automotive and HVOR operating segments contributed to these results as discussed below.
Automotive net revenue for the year ended December 31, 2021 increased 17.6% compared to the year ended December 31, 2020. Excluding an increase of 2.5% attributed to changes in foreign currency exchange rates, automotive net revenue increased 15.1% on an organic basis. Although automotive production was constrained due to global supply chain shortages, resulting in muted end market growth of 1.2% for the year, we delivered organic revenue growth due to our continued outperformance relative to the automotive market, led by new product launches in powertrain and emissions, safety, and electrification-related applications and systems.
HVOR net revenue for the year ended December 31, 2021 increased 63.3% compared to the year ended December 31, 2020. Excluding an increase of 2.1% attributed to changes in foreign currency exchange rates and an increase of 14.8% due to the effect of acquisitions, HVOR net revenue increased 46.4% on an organic basis. This organic revenue increase is primarily due to recovery of customer production combined with our continued outperformance relative to the HVOR markets. Our China on-road truck business saw significant market outgrowth from the adoption of NS6 emissions regulations, and we are also benefiting from a wave of electromechanical operator controls being installed in new off-road equipment.
Net Revenue - Sensing Solutions
Fiscal year 2022 vs. fiscal year 2021
Sensing Solutions net revenue for the year ended December 31, 2022 increased 8.2% compared to the year ended December 31, 2021. Excluding a decrease of 1.7% attributed to changes in foreign currency exchange rates and an increase of 2.4% due to the net effect of acquisitions and divestitures, Sensing Solutions net revenue increased 7.5% on an organic basis, which primarily reflects the launch of new industrial Electrification applications within the Clean Energy Solutions business as well as growth in content in other industrial businesses and aerospace, partially offset by weakness in our industrial markets, particularly appliance and HVAC.
Fiscal year 2021 vs. fiscal year 2020
Sensing Solutions net revenue for the year ended December 31, 2021 increased 18.4% compared to the year ended December 31, 2020. Excluding an increase of 1.7% attributed to changes in foreign currency exchange rates and an increase of 0.3% due to the effect of acquisitions, Sensing Solutions net revenue increased 16.4% on an organic basis. The increase in net revenue was driven by the continued recovery of global industrial end markets, as well as new Electrification launches and HVAC market recovery.
Operating costs and expenses
Operating costs and expenses for the years ended December 31, 2022, 2021, and 2020 are presented, in millions of dollars and as a percentage of revenue, in the following table. Amounts and percentages in the table below have been calculated based on unrounded numbers, accordingly, certain amounts may not appear to recalculate due to the effect of rounding.
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| | For the year ended December 31, |
| | 2022 | | 2021 | | 2020 |
| Amount | | Percent of
Net Revenue | | Amount | | Percent of
Net Revenue | | Amount | | Percent of
Net Revenue |
| Operating costs and expenses: | | | | | | | | | | | |
| Cost of revenue | $ | 2,712.0 | | | 67.3 | % | | $ | 2,542.4 | | | 66.5 | % | | $ | 2,119.0 | | | 69.6 | % |
| Research and development | 189.3 | | | 4.7 | | | 159.1 | | | 4.2 | | | 131.4 | | | 4.3 | |
| Selling, general and administrative | 370.6 | | | 9.2 | | | 337.0 | | | 8.8 | | | 294.7 | | | 9.7 | |
| Amortization of intangible assets | 153.8 | | | 3.8 | | | 134.1 | | | 3.5 | | | 129.5 | | | 4.3 | |
| Restructuring and other charges, net | (66.7) | | | (1.7) | | | 14.9 | | | 0.4 | | | 33.1 | | | 1.1 | |
| Total operating costs and expenses | $ | 3,359.1 | | | 83.4 | % | | $ | 3,187.6 | | | 83.4 | % | | $ | 2,707.8 | | | 88.9 | % |
Cost of revenue
Cost of revenue as a percentage of net revenue increased in fiscal year 2022, primarily due to the impacts of inflation on material and logistics costs and the unfavorable impact of product mix, partially offset by improved pricing.
Cost of revenue as a percentage of net revenue decreased in fiscal year 2021 primarily as a result of (1) higher volume and the nonrecurrence of productivity headwinds from our manufacturing facilities running at lower-than-normal capacity in fiscal year 2020 and (2) the nonrecurrence of a $29.2 million loss from fiscal year 2020 in intellectual property litigation originally brought against August Cayman Company, Inc. ("Schrader") by Wasica Finance GmbH ("Wasica"). These favorable impacts on cost of revenue as a percentage of revenue were partially offset by increased costs related to global supply chain shortages.
Research and development expense
We invest in R&D in megatrend-related areas to design and develop differentiated solutions for the fast-growing trends impacting our customers’ businesses, Electrification and Insights/IoT. Megatrend-related R&D expense in fiscal year 2022 was $68.5 million, an increase of $20.5 million from fiscal year 2021. We currently expect approximately $65 million to $70 million in total megatrend spend in fiscal year 2023, the vast majority of which will be recorded as R&D expense.
Total R&D expense increased in fiscal year 2022, primarily as a result of (1) higher spend to support megatrend growth initiatives and (2) incremental R&D expense related to acquired businesses, partially offset by the favorable effect of foreign currency exchange rates.
R&D expense increased in fiscal year 2021, primarily as a result of (1) higher spend to support megatrend growth initiatives, (2) incremental R&D expense related to acquired businesses, and (3) the unfavorable effect of changes in foreign currency exchange rates, partially offset by the impact on fiscal year 2021 of ongoing savings resulting from cost reduction activities taken in fiscal year 2020. R&D expense in fiscal year 2021 related to megatrends was $48.0 million, an increase of $22.0 million from fiscal year 2020.
Selling, general and administrative expense
SG&A expense increased in fiscal year 2022, primarily as a result of (1) incremental SG&A expense related to acquired businesses, including related transaction costs, (2) increased selling expenses attributed to organic revenue growth, and (3) higher share-based compensation, partially offset by the favorable effect of changes in foreign currency exchange rates. Refer to Note 21: Acquisitions and Divestitures and Note 4: Share-Based Payment Plans of our Financial Statements, included elsewhere in this Report, for additional information related to acquired businesses and share-based compensation, respectively.
SG&A expense increased in fiscal year 2021, primarily as a result of (1) incremental SG&A expense related to acquired businesses, including related transaction costs, (2) higher incentive compensation aligned to improved financial performance, (3) increased selling expenses attributed to organic revenue growth, and (4) the unfavorable effect of changes in foreign currency exchange rates. These increases were partially offset by the fiscal year 2020 completion of a project related to enhancements and improvements of our global operating processes to increase productivity and the resulting reduction in professional fees.
Amortization of intangible assets
Amortization expense increased in fiscal year 2022, primarily due to increased intangibles from recent acquisitions. Refer to Note 21: Acquisitions and Divestitures of our Financial Statements, included elsewhere in this Report, for additional information related to acquired businesses.
We expect amortization expense to be approximately $153.7 million in fiscal year 2023. Refer to Note 11: Goodwill and Other Intangible Assets, Net of our Financial Statements included elsewhere in this Report for additional information regarding definite-lived intangible assets and the related amortization.
Amortization expense increased in fiscal year 2021 primarily as a result of increased intangibles from recent acquisitions partially offset by the effect of the economic-benefit method of amortization as described in Note 2: Significant Accounting Policies of our Financial Statements included elsewhere in this Report.
Restructuring and other charges, net
We recorded a net credit of $66.7 million in restructuring and other charges, net in the year ended December 31, 2022, compared to a net charge of $14.9 million in the prior year, representing a favorable change in earnings of $81.6 million. This change was primarily due to (1) a gain of $135.1 million on the sale of the Qinex Business and (2) a gain of $8.6 million resulting from the reduction of the liability for contingent consideration for Spear Power Systems ("Spear"), partially offset by (1) expense of $48.9 million for acquisition-related compensation arrangements and (2) higher severance that does not represent the initiation of a larger plan. Refer to Note 5: Restructuring and Other Charges, Net of our Financial Statements, included elsewhere in this Report, for additional information on the components of restructuring and other charges, net.
Restructuring and other charges, net decreased in fiscal year 2021 primarily due to lower restructuring charges incurred as part of a plan commenced in fiscal year 2020 to reorganize our business in response to the potential long-term impact of the global financial and health crisis caused by the COVID-19 pandemic (the “Q2 2020 Global Restructure Program”). Refer to Note 5: Restructuring and Other Charges, Net of our Financial Statements included elsewhere in this Report for additional information related to the Q2 2020 Global Restructure Program.
Operating income
In fiscal year 2022, operating income increased $36.9 million or 5.8%, to $670.1 million (16.6% of net revenue) compared to $633.2 million (16.6% of net revenue) in fiscal year 2021, primarily due to (1) the gain on the sale of the Qinex Business and (2) improvements in pricing to offset increased costs, partially offset by (1) the impact of inflation on our component and logistics costs, (2) higher acquisition-related incentive compensation, (3) the negative impact of product mix, (4) higher amortization, primarily due to acquired intangible assets, (5) higher spend to support our megatrends initiatives, and (6) the unfavorable effect of changes in foreign currency exchange rates.
In fiscal year 2021, operating income increased $295.5 million or 87.5%, to $633.2 million (16.6% of net revenue) compared to $337.7 million (11.1% of net revenue) in fiscal year 2020. This increase was primarily driven by improved gross margins, due mainly to (1) higher organic sales volumes and (2) the turnaround effect of the Wasica litigation settlement in fiscal year 2020, partially offset by (1) increased costs related to global supply chain shortages, and (2) lower restructuring costs. This effect of improved gross margins was partially offset by (1) higher spend to support megatrend growth initiatives, (2) higher incentive compensation aligned to improved financial performance, and (3) the turnaround effect of temporary salary reductions and furloughs taken in the second quarter 2020.
Interest expense, net
Interest expense, net did not change materially in fiscal year 2022, as the impact of various transactions and higher interest rates largely offset. Refer to the table detailing interest expense by debt instrument under the heading Indebtedness and Liquidity, included elsewhere in this MD&A. On January 31, 2023, we announced that we intended to pay down $250.0 million of outstanding principal on the Term Loan. That payment was completed on February 6, 2023.
Interest expense, net increased in fiscal year 2021 primarily as a result of (1) interest expense in fiscal year 2021 related to the issuance of $1.0 billion aggregate principal amount of 4.0% senior notes due 2029 (the “4.0% Senior Notes”), (2) additional interest expense in fiscal year 2021 related to the $750.0 million aggregate principal amount of 3.75% senior notes due 2031 (the "3.75% Senior Notes") as a result of their issuance in fiscal year 2020, partially offset by reduced interest as a result of the redemption of the $750.0 million aggregate principal amount outstanding on the 6.25% senior notes due 2026 (the "6.25% Senior Notes") early in fiscal year 2021.
Other, net
Other, net for the years ended December 31, 2022, 2021, and 2020 consisted of the following (amounts have been calculated based on unrounded numbers, accordingly, certain amounts may not appear to recalculate due to the effect of rounding):
| | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| (In millions) | 2022 | | 2021 | | 2020 |
Currency remeasurement (loss)/gain on net monetary assets (1) | $ | (18.2) | | | $ | 3.4 | | | $ | 10.8 | |
Gain/(loss) on foreign currency forward contracts (2) | 4.3 | | | (7.6) | | | (6.8) | |
(Loss)/gain on commodity forward contracts (2) | (3.4) | | | (3.0) | | | 10.0 | |
Loss on debt financing (3) | (5.5) | | | (30.1) | | | — | |
Mark-to-market loss on investments, net (4) | (75.6) | | | — | | | — | |
| Net periodic benefit cost, excluding service cost | (5.1) | | | (7.5) | | | (10.0) | |
| Other | 8.7 | | | 4.6 | | | (4.5) | |
| Other, net | $ | (94.6) | | | $ | (40.0) | | | $ | (0.3) | |
__________________________
(1) Relates to the remeasurement of non-USD denominated monetary assets and liabilities into USD.
(2) Relates to changes in the fair value of derivative financial instruments that are not designated as hedges. Refer to Note 19: Derivative Instruments and Hedging Activities of our Financial Statements included elsewhere in this Report for additional information related to gains and losses on our commodity and foreign currency forward contracts. Refer to Item 7A: Quantitative and Qualitative Disclosures About Market Risk included elsewhere in this Report for an analysis of the sensitivity of other, net to changes in foreign currency exchange rates and commodity prices.
(3) Refer to Note 14: Debt of our Financial Statements included elsewhere in this Report for additional information related to our debt financing transactions.
(4) Primarily relates to mark-to-market losses on our investment in Quanergy Systems, Inc. ("Quanergy"), as disclosed in Note 18: Fair Value Measures, of our Financial Statements included elsewhere in this Report.
Provision for income taxes
The components of provision for income taxes for the years ended December 31, 2022, 2021, and 2020 are described in more detail in the table below (amounts have been calculated based on unrounded numbers, accordingly, certain amounts may not appear to recalculate due to the effect of rounding):
| | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| (In millions) | 2022 | | 2021 | | 2020 |
Tax computed at statutory rate of 21% (1) | $ | 83.3 | | | $ | 86.9 | | | $ | 34.8 | |
Foreign tax rate differential (2) | (44.3) | | | (30.5) | | | (22.0) | |
Valuation allowances (3) | 15.7 | | | 20.5 | | | 8.9 | |
| Withholding taxes not creditable | 12.3 | | | 13.3 | | | 12.2 | |
Research and development incentives (4) | (10.8) | | | (11.1) | | | (7.4) | |
| Unrealized foreign currency exchange losses, net | 9.3 | | | (6.1) | | | 2.7 | |
Dispositions and capital restructurings (5) | 4.5 | | | — | | | (54.2) | |
| Change in tax laws or rates | 2.6 | | | (7.1) | | | 11.2 | |
| Reserve for tax exposure | 1.3 | | | (16.3) | | | (0.2) | |
Other (6) | 12.1 | | | 0.7 | | | 15.4 | |
| Provision for income taxes | $ | 86.0 | | | $ | 50.3 | | | $ | 1.4 | |
__________________________
(1) Represents the product of the applicable statutory tax rate and income before taxes, as reported in the consolidated statements of operations.
(2) We operate in locations outside the U.S., including Belgium, Bulgaria, China, Malaysia, Malta, Mexico, the Netherlands, South Korea, and the U.K., that historically have had statutory tax rates different than the U.S. statutory tax rate. This can result in a foreign tax rate differential that may reflect a tax benefit or detriment. This foreign tax rate differential can change from year to year based upon the jurisdictional mix of earnings and changes in current and future enacted tax rates. Certain of our subsidiaries are currently eligible, or have been eligible, for tax exemptions or reduced tax rates in their respective jurisdictions.
(3) During the years ended December 31, 2022, 2021, and 2020, we established an additional valuation allowance and recognized a deferred tax expense. The valuation allowance as of December 31, 2022 and 2021 was $249.5 million and $225.9 million, respectively. A significant portion of our valuation allowance is against interest carryforwards due to our assessment of our inability to utilize these carryforwards based on our forecasts of future taxable income. The remaining valuation allowance primarily relates to foreign tax credits, capital loss carryforwards, goodwill tax basis, and net operating losses in jurisdictions outside the U.S. It is more likely than not that these attributes will not be utilized in the foreseeable future. However, any future release of all or a portion of this valuation allowance resulting from a change in this assessment will impact our future provision for (or benefit from) income taxes.
(4) In China, we benefit from the R&D super deduction regime. In the U.K., certain of our subsidiaries are eligible for lower tax rates under the "patent box" regime. In the U.S., we benefit from the federal research and development credit.
(5) The increase in our effective tax rate for the year ended December 31, 2022 is due to the tax accounting impacts of the divestiture of the Qinex Business, partially offset by separate intangible property transfers. For the year ended December 31, 2020, the decrease in our effective tax rate was due to a net $54.2 million deferred tax benefit in the fourth quarter of 2020 related to intangible property transfers.
(6) Refer to Note 7: Income Taxes of our Financial Statements included elsewhere in this Report for additional information related to other components of our rate reconciliation.
We do not believe that there are any known trends related to the reconciling items noted above that are reasonably likely to result in our liquidity increasing or decreasing in any material way.
Non-GAAP Financial Measures
This section provides additional information regarding certain non-GAAP financial measures, including organic revenue growth (or decline), adjusted operating income, adjusted operating margin, adjusted net income, adjusted earnings per share ("EPS"), free cash flow, adjusted corporate and other expenses, net debt, net leverage ratio, and adjusted earnings before interest, taxes, depreciation, and amortization ("EBITDA"), which are used by our management, Board of Directors, and investors. We use these non-GAAP financial measures internally to make operating and strategic decisions, including the preparation of our annual operating plan, evaluation of our overall business performance, and as a factor in determining compensation for certain employees.
The use of our non-GAAP financial measures has limitations. They should be considered as supplemental in nature and are not intended to be considered in isolation from, or as an alternative to, reported net revenue growth (or decline), operating income, operating margin, net income, diluted EPS, operating cash flows, corporate and other expenses, total debt, finance lease, and other financing obligations, or EBITDA, respectively, calculated in accordance with U.S. GAAP. In addition, our measures of organic revenue growth (or decline), adjusted operating income, adjusted operating margin, adjusted net income, adjusted EPS, free cash flow, adjusted corporate and other expenses, net leverage ratio, and adjusted EBITDA may not be the same as, or comparable to, similar non-GAAP financial measures presented by other companies.
Organic revenue growth (or decline)
Organic revenue growth (or decline) is defined as the reported percentage change in net revenue, calculated in accordance with U.S. GAAP, excluding the period-over-period impact of foreign currency exchange rate differences as well as the net impact of material acquisitions and divestitures for the 12-month period following the respective transaction date(s).
We believe that organic revenue growth (or decline) provides investors with helpful information with respect to our operating performance, and we use organic revenue growth (or decline) to evaluate our ongoing operations as well as for internal planning and forecasting purposes. We believe that organic revenue growth (or decline) provides useful information in evaluating the results of our business because it excludes items that we believe are not indicative of ongoing performance or that we believe impact comparability with the prior-year period.
Adjusted operating income, adjusted operating margin, adjusted net income, and adjusted EPS
We define adjusted operating income as operating income, determined in accordance with U.S. GAAP, excluding certain non-GAAP adjustments which are described below. Adjusted operating margin is calculated by dividing adjusted operating income by net revenue determined in accordance with U.S. GAAP. We define adjusted net income as follows: net income (or loss) determined in accordance with U.S. GAAP, excluding certain non-GAAP adjustments which are described in Non-GAAP adjustments below. Adjusted EPS is calculated by dividing adjusted net income by the number of diluted weighted-average ordinary shares outstanding in the period.
Management uses adjusted operating income, adjusted operating margin, adjusted net income, and adjusted EPS as measures of operating performance, for planning purposes (including the preparation of our annual operating budget), to allocate resources to enhance the financial performance of our business, to evaluate the effectiveness of our business strategies, in communications with our Board of Directors and investors concerning our financial performance, and as factors in determining compensation for certain employees. We believe investors and securities analysts also use these non-GAAP financial measures in their evaluation of our performance and the performance of other similar companies. These non-GAAP financial measures are not measures of liquidity.
Free cash flow
Free cash flow is defined as net cash provided by operating activities less additions to PP&E and capitalized software. We believe free cash flow is useful to management and investors as a measure of cash generated by business operations that will be used to repay scheduled debt maturities and can be used to, among other things, fund acquisitions, repurchase ordinary shares, and (or) accelerate the repayment of debt obligations.
Adjusted corporate and other expenses
Adjusted corporate and other expenses is defined as corporate and other expenses calculated in accordance with U.S. GAAP, excluding the portion of non-GAAP adjustments described below that relate to corporate and other expenses. We believe adjusted corporate and other expenses is useful to management and investors in understanding the impact of non-GAAP adjustments on operating expenses not allocated to our segments.
Adjusted EBITDA
Adjusted EBITDA is defined as net income (or loss), determined in accordance with U.S. GAAP, excluding interest expense, net, provision for (or benefit from) income taxes, depreciation expense, amortization of intangible assets, and the following non-GAAP adjustments, if applicable: (1) restructuring related and other, (2) financing and other transaction costs, (3) deferred loss or gain on derivative instruments, and (4) step-up inventory amortization. Refer to Non-GAAP adjustments below for additional discussion of these adjustments.
Net leverage ratio
Net leverage ratio represents net debt (total debt, finance lease, and other financing obligations less cash and cash equivalents) divided by last twelve months ("LTM") adjusted EBITDA. We believe that the net leverage ratio is a useful measure to management and investors in understanding trends in our overall financial condition.
Non-GAAP adjustments
Many of our non-GAAP adjustments relate to a series of strategic initiatives developed by our management aimed at better positioning us for future revenue growth and an improved cost structure. These initiatives have been modified from time to time to reflect changes in overall market conditions and the competitive environment facing our business. These initiatives include, among other items, acquisitions, divestitures, restructurings of certain business, supply chain, or corporate activities, and various financing transactions. We describe these adjustments in more detail below, each of which is net of current tax impacts, as applicable.
•Restructuring related and other: includes charges, net related to certain restructuring and other exit activities as well as other costs (or income) that we believe are either unique or unusual to the identified reporting period, and that we believe impact comparisons to prior period operating results. Such costs include charges related to optimization of our manufacturing processes to increase productivity. This type of activity occurs periodically, however each action is unique, discrete, and driven by various facts and circumstances. Such amounts are excluded from internal financial statements and analyses that management uses in connection with financial planning, and in its review and assessment of our operating and financial performance, including the performance of our segments.
•Financing and other transaction costs: includes losses or gains related to debt financing transactions, losses or gains related to the divestiture of a business, and costs incurred, including for legal, accounting, and other professional services, that are directly related to an acquisition, divestiture, or equity financing transaction.
•Deferred loss or gain on derivative instruments: includes unrealized losses or gains on derivative instruments that do not qualify for hedge accounting as well as the impact of commodity prices on our raw material costs relative to the strike price on our commodity forward contracts.
•Step-up depreciation and amortization: includes depreciation and amortization expense associated with the step-up in fair value of assets acquired in connection with a business combination (e.g., PP&E, definite-lived intangible assets, and inventories).
•Deferred taxes and other tax related: includes adjustments for book-to-tax basis differences due primarily to the step-up in fair value of fixed and intangible assets and goodwill, the utilization of net operating losses, and adjustments to our valuation allowance in connection with certain acquisitions and tax law changes. Other tax related items include certain adjustments to unrecognized tax benefits and withholding tax on repatriation of foreign earnings.
•Amortization of debt issuance costs. We adjust our results recorded in accordance with U.S. GAAP by the amortization of debt issuance costs, which are deferred as a contra-liability against our long-term debt, net on the consolidated balance sheets and which are reflected in interest expense on the consolidated statements of operations.
•Where applicable, the current income tax effect of non-GAAP adjustments.
Our definition of adjusted net income excludes the deferred provision for (or benefit from) income taxes and other tax related items described above. As we treat deferred income taxes as an adjustment to compute adjusted net income, the deferred income tax effect associated with the reconciling items presented below would not change adjusted net income for any period presented.
Non-GAAP reconciliations
The following tables present reconciliations of certain financial measures calculated in accordance with U.S. GAAP to the related non-GAAP financial measures for the periods presented. Refer to Non-GAAP adjustments section above for additional information related to these adjustments. Amounts and percentages in the table below have been calculated based on unrounded numbers, accordingly, certain amounts may not appear to recalculate due to the effect of rounding.
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | For the year ended December 31, 2022 |
| ($ in millions, except per share amounts) | | Operating Income | | Operating Margin | | Net Income | | Diluted EPS |
Reported (GAAP) | | $ | 670.1 | | | 16.6 | % | | $ | 310.7 | | | $ | 1.99 | |
Non-GAAP adjustments: | | | | | | | | |
Restructuring related and other (e) | | 36.5 | | | 0.9 | | | 34.5 | | | 0.22 | |
Financing and other transaction costs (a) | | (75.6) | | | (1.9) | | | 10.7 | | | 0.07 | |
| Step-up depreciation and amortization | | 148.3 | | | 3.7 | | | 148.3 | | | 0.95 | |
| Deferred (gain)/loss on derivative instruments | | (1.5) | | | 0.0 | | | 1.5 | | | 0.01 | |
| Amortization of debt issuance costs | | — | | | — | | | 7.0 | | | 0.04 | |
Deferred taxes and other tax related (c) | | — | | | — | | | 17.8 | | | 0.11 | |
| Total adjustments | | 107.7 | | | 2.7 | | | 219.8 | | | 1.41 | |
Adjusted (non-GAAP) | | $ | 777.9 | | | 19.3 | % | | $ | 530.5 | | | $ | 3.40 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | For the year ended December 31, 2021 |
| ($ in millions, except per share amounts) | | Operating Income | | Operating Margin | | Net Income | | Diluted EPS |
Reported (GAAP) | | $ | 663.2 | | | 16.6 | % | | $ | 363.6 | | | $ | 2.28 | |
Non-GAAP adjustments: | | | | | | | | |
Restructuring related and other (e) | | 23.6 | | | 0.6 | | | 21.4 | | | 0.13 | |
Financing and other transaction costs (b) | | 13.2 | | | 0.3 | | | 41.0 | | | 0.26 | |
| Step-up depreciation and amortization | | 127.6 | | | 3.3 | | | 127.6 | | | 0.80 | |
| Deferred loss on derivative instruments | | 8.3 | | | 0.2 | | | 11.3 | | | 0.07 | |
| Amortization of debt issuance costs | | — | | | — | | | 6.9 | | | 0.04 | |
Deferred taxes and other tax related (c) | | — | | | — | | | (4.9) | | | (0.03) | |
| Total adjustments | | 172.8 | | | 4.5 | | | 203.3 | | | 1.28 | |
Adjusted (non-GAAP) | | $ | 806.0 | | | 21.1 | % | | $ | 566.8 | | | $ | 3.56 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | For the year ended December 31, 2020 |
| ($ in millions, except per share amounts) | | Operating Income | | Operating Margin | | Net Income | | Diluted EPS |
Reported (GAAP) | | $ | 337.7 | | | 11.1 | % | | $ | 164.3 | | | $ | 1.04 | |
Non-GAAP adjustments: | | | | | | | | |
Restructuring related and other (e) | | 87.4 | | | 2.9 | | | 93.8 | | | 0.59 | |
| Financing and other transaction costs | | 8.2 | | | 0.3 | | | 6.4 | | | 0.04 | |
Step-up depreciation and amortization | | 125.7 | | | 4.1 | | | 125.7 | | | 0.79 | |
Deferred loss/(gain) on derivative instruments | | 3.1 | | | 0.1 | | | (7.0) | | | (0.04) | |
| Amortization of debt issuance costs | | — | | | — | | | 6.9 | | | 0.04 | |
Deferred taxes and other tax related (d) | | — | | | — | | | (40.9) | | | (0.26) | |
| Total adjustments | | 224.4 | | | 7.4 | | | 184.9 | | | 1.17 | |
Adjusted (non-GAAP) | | $ | 562.1 | | | 18.5 | % | | $ | 349.2 | | | $ | 2.21 | |
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(a) Includes gains of $135.1 million and $9.4 million on the sale of the Qinex Business and changes in the fair value of acquisition-related contingent consideration, respectively, partially offset by $48.9 million of expense related to compensation arrangements entered into concurrent with the closing of acquisitions, each of which were recorded in restructuring and other charges, net. Also includes $75.6 million of mark-to-market losses on our equity investments, primarily our investment in Quanergy, which are presented in other, net in our consolidated statements of operations.
(b) Includes a $30.1 million loss related to the early redemption of the 6.25% Senior Notes. The loss primarily reflects the payment of $23.4 million for the early redemption premium, with the remaining loss representing write-off of debt discounts and deferred financing costs. The loss is presented in other, net in our consolidated statements of operations.
(c) The years ended December 31, 2022 and 2021 include current tax expense of $14.7 million and $10.9 million, respectively, related to the repatriation of earnings from certain Asian subsidiaries to their parent companies in the Netherlands. The decision to repatriate these earnings was the result of our goal to reduce our balance sheet exposure and corresponding earnings volatility related to changes in foreign currency exchange rates as well as to fund our deployment of capital.
(d) Includes a net $54.2 million deferred tax benefit recorded as a result of the transfer of intangible property.
(e) The following table presents the components of our restructuring related and other non-GAAP adjustment to net income for fiscal years 2022, 2021, and 2020 (amounts have been calculated based on unrounded numbers, accordingly, certain amounts may not appear to recalculate due to the effect of rounding):
| | | | | | | | | | | | | | | | | | | |
| | For the year ended December 31, | | |
| (In millions) | 2022 | | 2021 | | 2020 | | |
Business and corporate repositioning (i) | $ | 27.2 | | | $ | 10.7 | | | $ | 35.8 | | | |
Supply chain repositioning and transition (ii) | 4.5 | | | 8.2 | | | 30.8 | | | |
Pre-acquisition legal matters (iii) | 6.4 | | | 6.0 | | | 31.5 | | | |
| | | | | | | |
Income tax effect (iv) | (3.5) | | | (3.5) | | | (4.2) | | | |
Total non-GAAP restructuring related and other (v) | $ | 34.5 | | | $ | 21.4 | | | $ | 93.8 | | | |
__________________________
i.Fiscal year 2020 includes charges incurred under the Q2 2020 Global Restructure Program and charges for other business and corporate workforce rationalization.
ii.Primarily includes costs related to optimization of our manufacturing processes to increase productivity and rationalize our manufacturing footprint and supply chain workforce rationalization.
iii.Represents charges incurred related to legal matters associated with acquired businesses, for which new information is brought to light after the measurement period for the business combination is closed, but for which the liability relates to events or activities that occurred prior to our acquisition of the business. Fiscal year 2020 primarily includes the settlement of intellectual property litigation brought against Schrader by Wasica.
iv.We treat deferred taxes as a non-GAAP adjustment. Accordingly, the income tax effect of the restructuring related and other non-GAAP adjustment refers only to the current income tax effect.
v.Total presented is the non-GAAP adjustment to net income. Certain portions of these adjustments are non-operating and are excluded from the non-GAAP adjustments to operating income.
The following table presents a reconciliation of net cash provided by operating activities calculated in accordance with U.S. GAAP to free cash flow.
| | | | | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| (In millions) | | 2022 | | 2021 | | 2020 |
| Net cash provided by operating activities | | $ | 460.6 | | | $ | 554.2 | | | $ | 559.8 | |
| Additions to property, plant and equipment and capitalized software | | (150.1) | | | (144.4) | | | (106.7) | |
| Free cash flow | | $ | 310.5 | | | $ | 409.7 | | | $ | 453.1 | |
The following table presents a reconciliation of corporate and other expenses calculated in accordance with U.S. GAAP to adjusted corporate and other expenses.
| | | | | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| (In millions) | | 2022 | | 2021 | | 2020 |
| Corporate and other expenses (GAAP) | | $ | (294.4) | | | $ | (288.1) | | | $ | (273.4) | |
| Non-GAAP adjustments | | | | | | |
| Restructuring related and other | | 11.9 | | | 9.9 | | | 54.9 | |
| Financing and other transaction costs | | 15.7 | | | 11.9 | | | 7.6 | |
| Step-up depreciation and amortization | | 1.2 | | | 1.7 | | | 2.8 | |
| Deferred (gain)/loss on derivative instruments | | (1.5) | | | 8.3 | | | 3.1 | |
| Total Adjustments | | 27.3 | | | 31.8 | | | 68.4 | |
| Adjusted corporate and other expenses (non-GAAP) | | $ | (267.1) | | | $ | (256.3) | | | $ | (205.0) | |
The following table presents a reconciliation of net income calculated in accordance with U.S. GAAP to adjusted EBITDA.
| | | | | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| (In millions) | | 2022 | | 2021 | | 2020 |
| Net income | | $ | 310.7 | | | $ | 363.6 | | | $ | 164.3 | |
| Interest expense, net | | 178.8 | | | 179.3 | | | 171.8 | |
| Provision for income taxes | | 86.0 | | | 50.3 | | | 1.4 | |
| Depreciation expense | | 127.2 | | | 125.0 | | | 125.7 | |
| Amortization of intangible assets | | 153.8 | | | 134.1 | | | 129.5 | |
| EBITDA | | 856.5 | | | 852.3 | | | 592.6 | |
| Non-GAAP adjustments | | | | | | |
| Restructuring related and other | | 38.0 | | | 23.6 | | | 93.1 | |
| Financing and other transaction costs | | 7.5 | | | 41.0 | | | 6.4 | |
| Deferred loss/(gain) on derivative instruments | | 1.9 | | | 11.3 | | | (7.0) | |
| | | | | | |
| Adjusted EBITDA | | $ | 903.9 | | | $ | 928.3 | | | $ | 685.1 | |
The following table presents a reconciliation of total debt, finance lease, and other financing obligations calculated in accordance with U.S. GAAP to net leverage ratio.
| | | | | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| ($ in millions) | | 2022 | | 2021 | | 2020 |
| Current portion of long-term debt, finance lease and other financing obligations | | $ | 256.5 | | | $ | 6.8 | | | $ | 757.2 | |
| Finance lease and other financing obligations, less current portion | | 24.7 | | | 26.6 | | | 27.9 | |
| Long-term debt, net | | 3,958.9 | | | 4,214.9 | | | 3,213.7 | |
| Total debt, finance lease, and other financing obligations | | 4,240.1 | | | 4,248.3 | | | 3,998.9 | |
| Less: debt discount, net of premium | | (3.4) | | | (5.2) | | | (9.6) | |
| Less: deferred financing costs | | (29.9) | | | (26.7) | | | (28.1) | |
| Total gross indebtedness | | 4,273.4 | | | 4,280.2 | | | 4,036.6 | |
| Less: cash and cash equivalents | | 1,225.5 | | | 1,709.0 | | | 1,862.0 | |
| Net debt | | $ | 3,047.9 | | | $ | 2,571.3 | | | $ | 2,174.6 | |
| | | | | | |
| Adjusted EBITDA (LTM) | | $ | 903.9 | | | $ | 928.3 | | | $ | 685.1 | |
| Net leverage ratio | | 3.4 | | 2.8 | | 3.2 |
Liquidity and Capital Resources
As of December 31, 2022 and 2021, we held cash and cash equivalents in the following regions (amounts have been calculated based on unrounded numbers, accordingly, certain amounts may not appear to recalculate due to the effect of rounding):
| | | | | | | | | | | |
| As of December 31, |
| (In millions) | 2022 | | 2021 |
| United Kingdom | $ | 15.7 | | | $ | 20.4 | |
| United States | 16.1 | | | 25.0 | |
| The Netherlands | 861.3 | | | 1,304.3 | |
| China | 210.0 | | | 293.8 | |
| Other | 122.4 | | | 65.5 | |
| Total cash and cash equivalents | $ | 1,225.5 | | | $ | 1,709.0 | |
The amount of cash and cash equivalents held in these geographic regions fluctuates throughout the year due to a variety of factors, such as our use of intercompany loans and dividends and the timing of cash receipts and disbursements in the normal course of business. Our earnings are not considered to be permanently reinvested in certain jurisdictions in which they were earned. We recognize a deferred tax liability on these unremitted earnings to the extent the remittance of such earnings cannot be recovered in a tax-free manner.
In certain jurisdictions, our cash balances are subject to withholding taxes immediately upon withdrawal of funds to a different jurisdiction. In addition, in order to take advantage of incentive programs offered by various jurisdictions, including tax incentives, we are required to maintain minimum cash balances in these jurisdictions. The transfer of cash from these jurisdictions could result in loss of incentives or higher cash tax expense, but those impacts are not expected to be material.
Our cash and cash equivalent balances as of December 31, 2022 and 2021 were held in the following significant currencies:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| As of December 31, 2022 |
| (In millions) | USD | | EUR | | GBP | | CNY | | Other |
| United Kingdom | $ | 2.7 | | | € | 0.0 | | | £ | 10.7 | | | ¥ | — | | | |
| United States | 16.1 | | | — | | | — | | | — | | | |
| The Netherlands | 848.6 | | | 10.9 | | | 0.2 | | | — | | | |
| China | 95.0 | | | — | | | — | | | 794.4 | | | |
| Other | 99.9 | | | 2.3 | | | — | | | — | | | |
| Total | $ | 1,062.3 | | | € | 13.2 | | | £ | 10.9 | | | ¥ | 794.4 | | | |
| USD Equivalent | | | $ | 14.0 | | | $ | 13.2 | | | $ | 115.2 | | | $ | 20.8 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| As of December 31, 2021 |
| (In millions) | USD | | EUR | | GBP | | CNY | | Other |
| United Kingdom | $ | 1.8 | | | € | 0.0 | | | £ | 13.2 | | | ¥ | — | | | |
| United States | 25.0 | | | — | | | — | | | — | | | |
| The Netherlands | 1,294.2 | | | 8.9 | | | — | | | — | | | |
| China | 50.8 | | | — | | | — | | | 1,549.4 | | | |
| Other | 51.0 | | | 1.7 | | | — | | | — | | | |
| Total | $ | 1,422.8 | | | € | 10.6 | | | £ | 13.2 | | | ¥ | 1,549.4 | | | |
| USD Equivalent | | | $ | 12.0 | | | $ | 17.8 | | | $ | 243.1 | | | $ | 13.3 | |
Cash Flows
The table below summarizes our primary sources and uses of cash for the years ended December 31, 2022, 2021, and 2020. We have derived this summarized statement of cash flows from our Financial Statements included elsewhere in this Report. Amounts in the table below have been calculated based on unrounded numbers, accordingly, certain amounts may not appear to recalculate due to the effect of rounding.
| | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| (In millions) | 2022 | | 2021 | | 2020 |
| Net cash provided by/(used in): | | | | | |
| Operating activities: | | | | | |
| Net income adjusted for non-cash items | $ | 586.4 | | | $ | 678.2 | | | $ | 405.3 | |
| Changes in operating assets and liabilities, net | (125.8) | | | (124.0) | | | 154.5 | |
| Operating activities | 460.6 | | | 554.2 | | | 559.8 | |
| Investing activities | (590.6) | | | (882.1) | | | (182.1) | |
| Financing activities | (353.5) | | | 174.9 | | | 710.2 | |
| Net change in cash and cash equivalents | $ | (483.4) | | | $ | (153.0) | | | $ | 1,087.9 | |
Operating Activities
Net cash provided by operating activities for the year ended December 31, 2022 decreased compared to the prior year, primarily due to lower net income, increases in receivables as our business and revenues grew, our decision to carry higher inventory levels to ensure continuity of supply in uncertain markets, and from acquisition-related compensation payments. Refer to Results of Operations included elsewhere in this MD&A for discussion of the drivers of changes in net income from fiscal year 2022.
We have non-cancelable purchase agreements with various suppliers, primarily for services such as information technology support. The terms of these agreements are fixed and determinable. We have cash commitments under these agreements of $77.7 million and $11.2 million in fiscal years 2023 and 2024, respectively. Refer to Note 15: Commitments and Contingencies of our Financial Statements included elsewhere in this Report for additional information related to our non-cancelable purchase agreements.
Net cash provided by operating activities decreased slightly in fiscal year 2021 compared to fiscal year 2020. Net income adjusted for non-cash items increased significantly from fiscal year 2020, which was substantially offset by changes in working capital. Refer to Results of Operations included elsewhere in this MD&A for discussion of the drivers of changes in net income from fiscal year 2020. In fiscal year 2021, management of working capital resulted in a reduction of cash due to higher raw material purchases in order to maximize production flexibility given widespread parts shortages in our supply chain and higher accounts receivables as a result of higher revenue and timing of receipts from customers. In addition, net cash provided by operating activities was reduced by cash paid at closing of certain acquisitions related to employee retention arrangements.
Investing Activities
Investing activities primarily include cash exchanged for the acquisition or divestiture of a business or group of assets, cash paid for additions to PP&E and capitalized software, and the acquisition or sale of certain debt and equity securities.
Net cash used in investing activities for the year ended December 31, 2022 decreased compared to the corresponding period of the prior year primarily due to lower cash paid for acquisitions (Elastic M2M and Dynapower) and the receipt of $198.8 million of cash proceeds of from the divestiture of the Qinex Business. In fiscal year 2023, we anticipate additions to PP&E and capitalized software of approximately $170.0 million to $180.0 million, which we expect to be funded with cash flows from operations.
Net cash used in investing activities increased in fiscal year 2021 primarily due to cash paid for acquisitions. In fiscal year 2021, we completed five acquisitions, Lithium Balance, Xirgo, Spear, SmartWitness, and Sendyne Corp. ("Sendyne").
Financing Activities
In fiscal year 2022, we used net cash of $353.5 million in financing activities, compared to net cash of $174.9 million provided by financing activities in fiscal year 2021. This increased use of cash was primarily due to additional payments to repurchase our ordinary shares in fiscal year 2022, less cash received from debt financing in fiscal year 2022, and $51.1 million of cash used for payment of dividends, a program which we began in fiscal year 2022. We used $292.3 million of cash for share
repurchases, compared to $47.8 million in fiscal year 2021. We also issued $500.0 million aggregate principal amount of 5.875% senior notes due 2030 (the "5.875% Senior Notes") and redeemed $500.0 million aggregate principal amount of 4.875% senior notes due 2023 (the "4.875% Senior Notes") in fiscal year 2022, the cash impact of which largely offset. In fiscal year 2021, cash provided by financing activities was primarily the result of the issuance of $1.0 billion of the 4.0% Senior Notes, partially offset by the redemption of $750.0 million of the 6.25% Senior Notes. In addition, in fiscal year 2022 we used $13.7 million in cash related to debt financing transactions, compared to $33.1 million in the prior year. On February 6, 2023, we prepaid $250.0 million of outstanding principal on the Term Loan.
In fiscal year 2021, net cash provided by financing activities decreased primarily due to the impact of debt financing transactions. In fiscal year 2021, we issued $1.0 billion of 4.0% Senior Notes and redeemed the $750.0 million aggregate principal amount outstanding on the 6.25% Senior Notes, representing net cash inflow of $218.8 million (including associated fees). This compares to the issuance of $750.0 million aggregate principal amount of 3.75% Senior Notes in fiscal year 2020 and the borrowing and subsequent repayment of $400.0 million on the Revolving Credit Facility, which, including associated fees, provided net cash inflow of $732.8 million.
Indebtedness and Liquidity
The following table details our gross outstanding indebtedness as of December 31, 2022, and the associated interest expense for the year then ended (amounts have been calculated based on unrounded numbers, accordingly, certain amounts may not appear to recalculate due to the effect of rounding):
| | | | | | | | | | | |
| (In millions) | Balance as of December 31, 2022 | | Interest Expense, net for the year ended December 31, 2022 |
Term Loan (1) | $ | 446.8 | | | $ | 17.0 | |
4.875% Senior Notes (2) | — | | | 18.1 | |
| 5.625% Senior Notes | 400.0 | | | 22.5 | |
| 5.0% Senior Notes | 700.0 | | | 35.0 | |
| | | |
| 4.375% Senior Notes | 450.0 | | | 19.7 | |
| 3.75% Senior Notes | 750.0 | | | 28.1 | |
| 4.0% Senior Notes | 1,000.0 | | | 40.0 | |
5.875% Senior Notes (3) | 500.0 | | | 10.0 | |
| | | |
| Finance lease and other financing obligations | 26.6 | | | 2.3 | |
| Total gross outstanding indebtedness | $ | 4,273.4 | | | |
Other interest expense, net (4) | | | (13.9) | |
| Interest expense, net | | | $ | 178.8 | |
__________________________
(1) On February 6, 2023, we prepaid $250.0 million on our outstanding variable rate Term Loan.
(2) We redeemed the full outstanding balance on the 4.875% Senior Notes in September 2022.
(3) We issued the 5.875% Senior Notes in August 2022.
(4) Other interest expense, net includes interest income and interest costs capitalized in accordance with Financial Accounting Standards Board ("FASB") Accounting Standards Codification ("ASC") Subtopic 835-20, Capitalization of Interest, partially offset by amortization of debt issuance costs and fees related to our unused balance on the Revolving Credit Facility.
Debt Instruments
As of December 31, 2022, our debt instruments included the Term Loan, $400.0 million in aggregate principal amount of 5.625% senior notes due 2024 (the "5.625% Senior Notes"), $700.0 million in aggregate principal amount of 5.0% senior notes due 2025 (the "5.0% Senior Notes"), $450.0 million aggregate principal amount of 4.375% senior notes due 2030 (the "4.375% Senior Notes"), the 3.75% Senior Notes, the 4.0% Senior Notes, and the 5.875% Senior Notes.
On June 23, 2022, we entered into an amendment (the “Eleventh Amendment”) to (i) the credit agreement, dated as of May 12, 2011 (as amended, supplemented, waived, or otherwise modified, the “Credit Agreement”), and (ii) the Foreign Guaranty, dated as of May 12, 2011. The Eleventh Amendment, among other things: increased the aggregate principal amount of the Revolving Credit Facility to $750.0 million; extended the maturity date of the Revolving Credit Facility to June 23, 2027 (subject to certain exceptions as described in Note 14: Debt of our Financial Statements included elsewhere in this Report); released
certain guarantors from their obligations relating to the Revolving Credit Facility and certain related obligations; and replaced the LIBOR-based interest rates referenced by the Credit Agreement regarding revolving credit loans.
On August 29, 2022, we completed the issuance and sale of the 5.875% Senior Notes. On September 28, 2022, we redeemed in full the $500.0 million aggregate principal amount outstanding on the 4.875% Senior Notes due 2023 in accordance with the terms of the indenture under which the 4.875% Senior Notes were issued, at a price of 101.0% of the aggregate principal amount of the outstanding 4.875% Senior Notes (which includes the applicable premium), plus accrued and unpaid interest to (but not including) the redemption date.
Refer to Note 14: Debt of our Financial Statements included elsewhere in this Report for additional information related to our debt transactions.
On February 6, 2023, we prepaid $250.0 million of principal on the Term Loan.
The aggregate principal amount of each tranche of our Senior Notes is due in full at its maturity date. The Term Loan must be repaid in full on or prior to its final maturity date. Loans made pursuant to the Revolving Credit Facility must be repaid in full at its maturity date and can be repaid prior to then at par. All letters of credit issued thereunder will terminate at the final maturity of the Revolving Credit Facility unless cash collateralized prior to such time.
The following table presents the remaining mandatory principal repayments of long-term debt, in millions, excluding finance lease payments, other financing obligations, and discretionary repurchases of debt, in each of the years ended December 31, 2023 through 2027 and thereafter. The table reflects the payment of $250.0 million principal amount of the Term Loan on February 6, 2023. Amounts have been calculated based on unrounded numbers, accordingly, certain amounts may not appear to recalculate due to the effect of rounding.
| | | | | |
| For the year ended December 31, | Aggregate Maturities |
| 2023 | $ | 254.6 | |
| 2024 | 404.6 | |
| 2025 | 704.6 | |
| 2026 | 182.9 | |
| 2027 | — | |
| Thereafter | 2,700.0 | |
| Total long-term debt principal payments | $ | 4,246.8 | |
Capital Resources
The Credit Agreement provides for the Senior Secured Credit Facilities consisting of the Term Loan, the Revolving Credit Facility, and the Accordion.
Our sources of liquidity include cash on hand, cash flows from operations, and available capacity under the Revolving Credit Facility. As of December 31, 2022, there was $746.1 million available under the Revolving Credit Facility, net of $3.9 million of obligations in respect of outstanding letters of credit issued thereunder. Outstanding letters of credit are issued primarily for the benefit of certain operating activities. As of December 31, 2022, no amounts had been drawn against these outstanding letters of credit.
Availability under the Accordion varies each period based on our attainment of certain financial metrics as set forth in the terms of the Credit Agreement and the indentures under which our Senior Notes were issued (the "Senior Notes Indentures"). As of December 31, 2022, availability under the Accordion was approximately $0.7 billion. Our primary historical uses of cash on hand have been to support the growth of the business through capital expenditures, acquire businesses that extend our market position within our key growth vectors of Electrification and Insights/IoT, and to repurchase our ordinary shares, augmenting our existing capital deployment strategies and enabling us to drive attractive returns on invested capital over the long-term.
We believe, based on our current level of operations for the year ended December 31, 2022, and taking into consideration the restrictions and covenants included in the Credit Agreement and Senior Notes Indentures discussed below and in Note 14: Debt of our Financial Statements included elsewhere in this Report, that these sources of liquidity will be sufficient to fund our operations, capital expenditures, ordinary share repurchases, and debt service for at least the next twelve months. However, we cannot make assurances that our business will generate sufficient cash flows from operations or that future borrowings will be available to us in an amount sufficient to enable us to pay our indebtedness or to fund our other liquidity needs. Further, our highly-leveraged nature may limit our ability to procure additional financing in the future.
The Credit Agreement provides that if our senior secured net leverage ratio exceeds a specified level, we are required to use a portion of our excess cash flow, as defined in the Credit Agreement, generated by operating, investing, or financing activities to prepay some or all of the outstanding borrowings under the Senior Secured Credit Facilities. The Credit Agreement also requires mandatory prepayments of the outstanding borrowings under the Senior Secured Credit Facilities upon certain asset dispositions and casualty events, in each case subject to certain reinvestment rights, and upon the incurrence of certain indebtedness (excluding any permitted indebtedness). These provisions were not triggered during the year ended December 31, 2022.
All obligations under the Senior Secured Credit Facilities are unconditionally guaranteed by certain of our subsidiaries (the "Guarantors"). The collateral for such borrowings under the Senior Secured Credit Facilities consists of substantially all present and future property and assets of our indirect, wholly-owned subsidiary, Sensata Technologies B.V. ("STBV"), and the Guarantors.
Our ability to raise additional financing, and our borrowing costs, may be impacted by short- and long-term debt ratings assigned by independent rating agencies, which are based, in significant part, on our performance as measured by certain credit metrics such as interest coverage and leverage ratios. As of January 27, 2023, Moody’s Investors Service’s corporate credit rating for STBV was Ba2 with a stable outlook, and Standard & Poor's corporate credit rating for STBV was BB+ with a stable outlook. Any future downgrades to STBV's credit ratings may increase our future borrowing costs but will not reduce availability under the Credit Agreement.
The Credit Agreement and the Senior Notes Indentures contain restrictions and covenants (described in more detail in Note 14: Debt of our Financial Statements included elsewhere in this Report) that limit the ability of STBV and certain of its subsidiaries to, among other things, incur subsequent indebtedness, sell assets, pay dividends, and make other restricted payments. These restrictions and covenants, which are subject to important exceptions and qualifications set forth in the Credit Agreement and Senior Notes Indentures, were taken into consideration when we established our share repurchase programs and will be evaluated periodically with respect to future potential funding of those program. We do not believe that these restrictions and covenants will prevent us from funding share repurchases under our share repurchase programs with available cash and cash flows from operations. As of December 31, 2022, we believe that we were in compliance with all the covenants and default provisions under the Credit Agreement and the Senior Notes Indentures.
Share repurchase program
From time to time, our Board of Directors has authorized various share repurchase programs, which may be modified or terminated by our Board of Directors at any time. Under these programs, we may repurchase ordinary shares at such times and in amounts to be determined by our management, based on market conditions, legal requirements, and other corporate considerations, on the open market or in privately negotiated transactions, provided that such transactions were completed pursuant to an agreement and with a third party approved by our shareholders at the annual general meeting.
In July 2019 our Board of Directors authorized a $500.0 million share repurchase program (the "July 2019 Program"). During the year ended December 31, 2021, we repurchased approximately 0.8 million ordinary shares, at a weighted-average price per share of $59.28, under the July 2019 Program. As of December 31, 2021, approximately $254.5 million remained available under the July 2019 Program.
On January 20, 2022, we announced that our Board of Directors had authorized a new $500.0 million ordinary share repurchase program (the "January 2022 Program"), which replaced the July 2019 Program. Sensata’s shareholders have previously approved the forms of share repurchase agreements and the potential broker counterparties needed to execute the buyback program.
During the year ended December 31, 2022, we repurchased approximately 6.3 million ordinary shares under the January 2022 Program, at a weighted-average price per share of $46.08. As of December 31, 2022, approximately $224.5 million remained available under the January 2022 Program.
Critical Accounting Policies and Estimates
As discussed in Note 2: Significant Accounting Policies of our Financial Statements included elsewhere in this Report, which more fully describes our significant accounting policies, the preparation of consolidated financial statements in accordance with U.S. GAAP requires us to exercise judgment in the process of applying our accounting policies. It also requires that we make estimates and assumptions about future events that affect the amounts reported in the consolidated financial statements and accompanying notes. The accounting policies and estimates that we believe are most critical to the portrayal of our financial
condition and results of operations are listed below. We believe these policies require the most difficult, subjective, and complex judgments in estimating the effect of inherent uncertainties.
Revenue Recognition
The discussion below details the most significant judgments and estimates we make regarding recognition of revenue in accordance with FASB ASC Topic 606, Revenue from Contracts with Customers. In accordance with FASB ASC Topic 606, we recognize revenue to depict the transfer of promised goods to customers in an amount that reflects the consideration to which we expect to be entitled in exchange for those goods, using a five-step model. The most critical judgments and estimates we make in the implementation of this model relate to identifying the contract with the customer and determination of the transaction price associated with the performance obligation(s) in the contract, specifically related to variable consideration.
While many of the agreements with our customers specify certain terms and conditions that apply to any transaction between the parties, many of which are in effect for a defined term, the vast majority of these agreements do not result in contracts (as defined in FASB ASC Topic 606) because they do not create enforceable rights and obligations on the parties. Specifically, (1) the parties are not committed to perform any obligations in accordance with the specified terms and conditions until a customer purchase order is received and accepted by us and (2) there is a unilateral right of each party to terminate the agreement at any time without compensating the other party. For this reason, the vast majority of our contracts (as defined in FASB ASC Topic 606) are customer purchase orders. If this assessment were to change, it could result in a material change to the amount of net revenue recognized in a period.
The transaction price is the amount of consideration to which an entity expects to be entitled in exchange for transferring promised goods or services to a customer. In determining the transaction price related to a contract, we determine whether the amount promised in a contract includes a variable amount (variable consideration). Variable consideration may be specified in the customer purchase order, in another agreement that identifies terms and conditions of the transaction, or based on our customary practices. We have identified certain types of variable consideration that may be included in the transaction price related to our contracts, including sales returns (which generally include a right of return for defective or non-conforming product) and trade discounts (including retrospective volume discounts and early payment incentives). Such variable consideration has not historically been material. However, should our judgments and estimates regarding variable consideration change, it could result in a material change to the amount of net revenue recognized in a period.
Goodwill, Intangible Assets, and Long-Lived Assets
Businesses acquired are recognized at their fair value on the date of acquisition, with the excess of the purchase price over the fair value of identifiable assets acquired and liabilities assumed recognized as goodwill. Intangible assets acquired may include either definite-lived or indefinite-lived intangible assets, or both. In accordance with FASB ASC Topic 350, Intangibles—Goodwill and Other, goodwill and intangible assets determined to have an indefinite useful life are not amortized. Instead these assets are evaluated for impairment on an annual basis, and whenever events or business conditions change that could indicate that the asset is impaired.
Goodwill
Our judgments regarding the existence of indicators of goodwill impairment are based on several factors, including the performance of the end markets served by our customers, as well as the actual financial performance of our reporting units and their respective financial forecasts over the long-term. We evaluate goodwill and indefinite-lived intangible assets for impairment in the fourth quarter of each fiscal year, unless events occur which trigger the need for an earlier impairment review.
Identification of reporting units. We have six identified reporting units, Automotive, HVOR, Sensata INSIGHTS, Industrial Solutions, Aerospace, and Clean Energy Solutions. These reporting units have been identified based on the definitions and guidance provided in FASB ASC Topic 350. Identification of reporting units includes an analysis of the components that comprise each of our operating segments, which considers, among other things, the manner in which we operate our business and the availability of discrete financial information. Components of an operating segment are aggregated to form one reporting unit if the components have similar economic characteristics. We periodically review these reporting units to ensure that they continue to reflect the manner in which the business is operated.
Assignment of assets, liabilities, and goodwill to reporting units. Some assets and liabilities relate to the operations of multiple reporting units. We allocate these assets and liabilities to the reporting units based on methods that we believe are reasonable and supportable. We apply that allocation method on a consistent basis from year to year. Other assets and liabilities, such as
debt, cash and cash equivalents, and PP&E associated with our corporate offices, are viewed as being corporate in nature. Accordingly, we do not assign these assets and liabilities to our reporting units.
In the event we reorganize our business, we reassign the assets (including goodwill) and liabilities among the affected reporting units using a reasonable and supportable methodology. As businesses are acquired, we assign assets acquired (including goodwill) and liabilities assumed to a new or existing reporting unit as of the date of the acquisition. In the event a disposal group meets the definition of a business, goodwill is allocated to the disposal group based on the relative fair value of the disposal group to the retained portion of the related reporting unit.
Evaluation of goodwill for impairment. We have the option to first assess qualitative factors to determine whether a quantitative analysis must be performed. The objective of a qualitative analysis is to assess whether it is more likely than not that the fair value of a reporting unit is less than its carrying value. We make this assessment based on macroeconomic conditions, industry and market considerations, cost factors, overall financial performance, and other relevant factors as applicable. If we elect not to use this option, or if we determine that it is more likely than not that the fair value of a reporting unit is less than its carrying value, then we prepare a discounted cash flow analysis to determine whether the carrying value of the reporting unit exceeds its estimated fair value. If the carrying value of a reporting unit exceeds its estimated fair value, we recognize an impairment of goodwill for the amount of this excess, in accordance with the guidance in FASB ASC Topic 350.
We evaluated the goodwill of each reporting unit for impairment as of October 1, 2022 using a quantitative method. As a result of this evaluation we determined that none of our reporting units were impaired. In performing our evaluation under the quantitative method, we estimated the fair values of our reporting units using the discounted cash flow method. For this method, we prepared detailed annual projections of future net cash flows for the reporting unit for the subsequent five fiscal years (the "Discrete Projection Period"). We estimated the value of the net cash flows beyond the fifth fiscal year (the "Terminal Year") by applying a multiple to the projected Terminal Year EBITDA. The net cash flows from the Discrete Projection Period and the Terminal Year were discounted at an estimated weighted-average cost of capital ("WACC") appropriate for each reporting unit. The estimated WACC was derived, in part, from comparable companies appropriate to each reporting unit. We believe that our procedures for estimating discounted future net cash flows, including the Terminal Year valuation, were reasonable and consistent with accepted valuation practices.
The preparation of forecasts of revenue growth and profitability for use in the long-range forecasts, the selection of the discount rates, and the estimation of the multiples used in valuing the Terminal Year involve significant judgments. Changes to these assumptions could affect the estimated fair value of one or more of our reporting units and could result in a goodwill impairment charge in a future period.
Types of events that could result in a goodwill impairment. As noted above, the assumptions used in the quantitative calculation of fair value of our reporting units, including the long-range forecasts, the selection of the discount rates, and the estimation of the multiples or long-term growth rates used in valuing the Terminal Year involve significant judgments. Changes to these assumptions could affect the estimated fair values of our reporting units calculated in prior years and could result in a goodwill impairment charge in a future period. We believe that certain factors, such as a future recession, any material adverse conditions in the automotive industry and other industries in which we operate, and other factors identified in Item 1A: Risk Factors included elsewhere in this Report could cause us to revise our long-term projections and could reduce the multiples used to determine Terminal Year value. Such revisions could result in a goodwill impairment charge in the future.
We consider a combination of quantitative and qualitative factors to determine whether a reporting unit is at risk of failing the goodwill impairment test, including: the timing of our most recent quantitative impairment tests and the relative amount by which a reporting unit’s fair value exceeded its then carrying value, the inputs and assumptions underlying our valuation models and the sensitivity of our fair value measurements to those inputs and assumptions, the impact that adverse economic or market conditions may have on the degree of uncertainty inherent in our long-term operating forecasts, and changes in the carrying value of a reporting unit’s net assets from the time of our most recent goodwill impairment test. We also consider the impact of recent acquisitions in our expectations of the reporting units, and how these acquisitions perform against their original expected performance, as these might put pressure on the reporting units' fair value over carrying value in the short term. Based on the results of this analysis, we do not consider any of our reporting units to be at risk of failing the goodwill impairment test.
Evaluation of other intangible assets for impairment
Indefinite-lived intangible assets. Similar to goodwill, we perform an annual impairment review of our indefinite-lived intangible assets in the fourth quarter of each fiscal year, unless events occur that trigger the need for an earlier impairment review. We have the option to first assess qualitative factors in determining whether it is more likely than not that an indefinite-lived intangible asset is impaired. If we elect not to use this option, or we determine that it is more likely than not that the asset is impaired, we perform a quantitative impairment analysis in which we estimate the fair value of the indefinite-lived intangible
asset and compare that amount to its carrying value. In performing this analysis, we estimate the fair value by using the relief-from-royalty method, in which we make assumptions about future conditions impacting the fair value of our indefinite-lived intangible assets, including projected growth rates, cost of capital, effective tax rates, and royalty rates. Impairment, if any, is based on the excess of the carrying value over the fair value of these assets.
We evaluated our indefinite-lived intangible assets for impairment as of October 1, 2022 (using the quantitative method) and determined that the estimated fair values of these assets exceeded their carrying values at that date. Should certain assumptions used in the development of the fair values of our indefinite-lived intangible assets change, we may be required to recognize an impairment charge in the future.
Definite-lived intangible assets. Reviews are regularly performed to determine whether facts or circumstances exist that indicate that the carrying values of our definite-lived intangible assets to be held and used are impaired. If we determine that such facts or circumstances exist, we estimate the recoverability of these assets by comparing the projected undiscounted net cash flows associated with these assets to their respective carrying values. If the sum of the projected undiscounted net cash flows falls below the carrying value of an asset, the impairment charge is measured as the excess of the carrying value over the fair value of that asset. We determine fair value by using the appropriate income approach valuation methodology depending on the nature of the definite-lived intangible asset.
Evaluation of long-lived assets for impairment
We periodically re-evaluate the carrying values and estimated useful lives of long-lived assets whenever events or changes in circumstances indicate that the carrying values of these assets may not be recoverable. We use estimates of undiscounted net cash flows from long-lived assets to determine whether the carrying values of such assets are recoverable over the assets’ remaining useful lives. These estimates include assumptions about our future performance and the performance of the end markets we serve. If an asset is determined to be impaired, the impairment is the amount by which its carrying value exceeds its fair value. These evaluations are performed at a level where discrete net cash flows may be attributed to either an individual asset or a group of assets.
Income Taxes
As part of the process of preparing our financial statements, we are required to estimate our provision for (or benefit from) income taxes in each of the jurisdictions in which we operate. This involves estimating our current tax expense, including assessing the risks associated with tax audits, together with assessing temporary differences resulting from the different treatment of items for tax and accounting purposes. These differences result in deferred tax assets and liabilities. Management judgment is required in determining various elements of our provision for (or benefit from) income taxes, including the amount of tax benefits on uncertain tax positions, and deferred tax assets that should be recognized.
In accordance with FASB ASC Topic 740, Income Taxes, we record uncertain tax positions on the basis of a two-step process. First, we determine whether it is more likely than not that the tax positions will be sustained based on the technical merits of the position. Second, for those tax positions that meet the more-likely-than-not recognition threshold, we recognize the largest amount of tax benefit that is greater than 50 percent likely to be realized upon ultimate settlement with the relevant tax authority. Significant judgment is required in evaluating whether our tax positions meet this two-step process. The more-likely-than-not recognition threshold must be met in each reporting period to support continued recognition of any tax benefits claimed, both in the current year, as well as any year which remains open for review by the relevant tax authority at the balance sheet date. Penalties and interest related to uncertain tax positions may be classified as either income taxes or another expense line item in the consolidated statements of operations. We classify interest and penalties related to uncertain tax positions within the provision for (or benefit from) income taxes line of the consolidated statements of operations.
We recognize deferred tax assets to the extent that we believe these assets are more likely than not to be realized. In measuring our deferred tax assets, we consider all available evidence, both positive and negative, including future reversals of existing taxable temporary differences, projected future taxable income, tax-planning strategies, and results of recent operations in various jurisdictions, to determine whether, based on the weight of that evidence, a valuation allowance is needed for all or some portion of the deferred tax assets. Significant judgment is required in considering the relative impact of these items along with the weight that should be given to each category, commensurate with the extent to which it can be objectively verified. The more negative evidence that exists, the more positive evidence is necessary, and the more difficult it is to support a conclusion that a valuation allowance is not needed. Additionally, we utilize the "more likely than not" criteria established in FASB ASC Topic 740 to determine whether the future tax benefit from the deferred tax assets should be recognized.
Ultimately, the ability to realize our deferred tax assets is based on our assessment of future taxable income, which is based on estimated future results. In the event that actual results differ from these estimates, or we adjust our estimates in the future, we may need to adjust our valuation allowance assessment, which could materially impact our consolidated financial position and results of operations.
Share-Based Compensation
FASB ASC Topic 718, Compensation—Stock Compensation, requires that a company measure at fair value any new or modified share-based compensation arrangements with employees, such as stock options and restricted securities, and recognize as compensation expense that fair value over the requisite service period.
Certain of our restricted securities include performance conditions that require us to estimate the probable outcome of the performance condition. This assessment is based on management's judgment using internally developed forecasts and is assessed at each reporting period. Compensation expense is recognized if it is probable that the performance condition will be achieved.
We elect to recognize share-based compensation expense net of estimated forfeitures as permitted by FASB ASC Topic 718, and therefore only recognize compensation expense for those awards expected to vest over the requisite service period. The forfeiture rate is based on our estimate of forfeitures by plan participants after consideration of historical forfeiture rates. Compensation expense recognized for each award ultimately reflects the number of units that actually vest.
Material changes to any of these assumptions may have a significant effect on our valuation of share-based compensation awards and, accordingly, the related expense recognized in the consolidated statements of operations.
Recently Issued Accounting Standards
There have been no recently issued accounting standards that have been adopted in the current period or will be adopted in future periods that have had or are expected to have a material impact on our consolidated financial position or results of operations.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We are exposed to changes in foreign currency exchange rates because we transact in a variety of foreign currencies. We are also exposed to changes in the prices of certain commodities (primarily metals) that we use in production. Changes in these foreign currency exchange rates and commodity prices may have an impact on future cash flows and earnings. We monitor our exposure to these risks and may employ derivative financial instruments to limit the volatility to earnings and cash flows generated by these exposures. We employ derivative contracts that may or may not be designated for hedge accounting treatment under FASB ASC Topic 815, Derivatives and Hedging, which can result in volatility to earnings depending upon fluctuations in the underlying markets.
By using derivative instruments, we are subject to credit and market risk. The fair market values of these derivative instruments are based upon valuation models whose inputs are derived using market observable inputs, including foreign currency exchange and commodity spot and forward rates, and reflect the asset and liability positions as of the end of each reporting period. When the fair value of a derivative contract is positive, the counterparty is liable to us, thus creating a receivable risk for us. We are exposed to counterparty credit (or repayment) risk in the event of non-performance by counterparties to our derivative agreements. We attempt to minimize this risk by entering transactions with major financial institutions of investment grade credit rating.
Interest Rate Risk
As discussed further in Note 14: Debt of our Financial Statements included elsewhere in this Report, the Credit Agreement provides for the Senior Secured Credit Facilities consisting of the Term Loan, the Revolving Credit Facility, and incremental availability under which additional secured credit facilities could be issued under certain circumstances.
The Term Loan accrues interest at a variable rate that, as of December 31, 2022, is based on London Interbank Offered Rate ("LIBOR"), plus an interest rate margin, in accordance with the terms of the Credit Agreement.
Sensitivity Analysis
As of December 31, 2022, we had an outstanding balance on the Term Loan (excluding debt discount and deferred financing costs) of $446.8 million. The applicable interest rate associated with the Term Loan at December 31, 2022 was 5.87%. An increase of 100 basis points in this rate would result in additional interest expense of $1.5 million in fiscal year 2023. An additional 100 basis point increase in this rate would result in incremental interest expense of $3.1 million in fiscal year 2023.
As of December 31, 2021, we had an outstanding balance on the Term Loan (excluding debt discount and deferred financing costs) of $451.5 million. The applicable interest rate associated with the Term Loan at December 31, 2021 was 1.87%. An increase of 100 basis points in this rate would have resulted in additional interest expense of $3.9 million in fiscal year 2022. An additional 100 basis point increase in this rate would have resulted in incremental interest expense of $8.2 million in fiscal year 2022.
Foreign Currency Risk
Consistent with our risk management objective and strategy to reduce exposure to variability in cash flows, and for non-trading purposes, we enter into foreign currency exchange rate derivatives that qualify as cash flow hedges, and that are intended to offset the effect of exchange rate fluctuations on forecasted sales and certain manufacturing costs. We also enter into foreign currency forward contracts that are not designated for hedge accounting purposes. Refer to Note 19: Derivative Instruments and Hedging Activities of our Financial Statements included elsewhere in this Report for additional information related to the foreign currency forward contracts outstanding as of December 31, 2022.
Sensitivity Analysis
The tables below present our foreign currency forward contracts as of December 31, 2022 and 2021 and the estimated impact to future pre-tax earnings as a result of a 10% strengthening/weakening in the foreign currency exchange rate:
| | | | | | | | | | | | | | | | | |
| | | (Decrease)/Increase to Future Pre-tax Earnings Due to: |
| (In millions) | Net Asset/(Liability) Balance as of December 31, 2022 | | 10% Strengthening of the Value of the Foreign Currency Relative to the U.S. Dollar | | 10% Weakening of the Value of the Foreign Currency Relative to the U.S. Dollar |
| Euro | $ | 10.7 | | | $ | (43.3) | | | $ | 43.3 | |
| Chinese Renminbi | $ | 0.0 | | | $ | (5.8) | | | $ | 5.8 | |
| Japanese Yen | $ | 0.0 | | | $ | 0.5 | | | $ | (0.5) | |
| Korean Won | $ | 0.4 | | | $ | (1.5) | | | $ | 1.5 | |
| Malaysian Ringgit | $ | 0.0 | | | $ | 0.5 | | | $ | (0.5) | |
| Mexican Peso | $ | 13.2 | | | $ | 17.2 | | | $ | (17.2) | |
| British Pound Sterling | $ | (3.1) | | | $ | 6.4 | | | $ | (6.4) | |
| | | | | | | | | | | | | | | | | |
| | | (Decrease)/Increase to Future Pre-tax Earnings Due to: |
| (In millions) | Net Asset/(Liability) Balance as of December 31, 2021 | | 10% Strengthening of the Value of the Foreign Currency Relative to the U.S. Dollar | | 10% Weakening of the Value of the Foreign Currency Relative to the U.S. Dollar |
| Euro | $ | 17.8 | | | $ | (45.3) | | | $ | 45.3 | |
| Chinese Renminbi | $ | (0.6) | | | $ | (19.9) | | | $ | 19.9 | |
| Japanese Yen | $ | 0.0 | | | $ | 0.5 | | | $ | (0.5) | |
| Korean Won | $ | 0.6 | | | $ | (1.9) | | | $ | 1.9 | |
| Malaysian Ringgit | $ | 0.0 | | | $ | 0.6 | | | $ | (0.6) | |
| Mexican Peso | $ | 4.5 | | | $ | 17.3 | | | $ | (17.3) | |
| British Pound Sterling | $ | (0.3) | | | $ | 7.8 | | | $ | (7.8) | |
Commodity Risk
We are exposed to the potential change in prices associated with certain commodities used in the manufacturing of our products. We offset a portion of this exposure by entering forward contracts that fix the price at a future date for various notional amounts associated with these commodities. These forward contracts are not designated as accounting hedges. Refer to Note 19: Derivative Instruments and Hedging Activities of our Financial Statements included elsewhere in this Report for additional information related to the commodity forward contracts outstanding as of December 31, 2022.
Sensitivity Analysis
The tables below present our commodity forward contracts as of December 31, 2022 and 2021 and the estimated impact to pre-tax earnings associated with a 10% increase/(decrease) in the related forward price for each commodity:
| | | | | | | | | | | | | | | | | | | | | | | |
| Net Asset/(Liability) Balance as of
December 31, 2022 | | Average Forward Price Per Unit as of December 31, 2022 | | Increase/(Decrease) to Pre-tax Earnings Due to |
| (In millions, except per unit amounts) | | | 10% Increase
in the Forward Price | | 10% Decrease
in the Forward Price |
| Silver | $ | 1.1 | | | $ | 24.33 | | | $ | 2.3 | | | $ | (2.3) | |
| Gold | $ | 0.1 | | | $ | 1,877.27 | | | $ | 1.5 | | | $ | (1.5) | |
| Nickel | $ | 0.7 | | | $ | 13.76 | | | $ | 0.3 | | | $ | (0.3) | |
| Aluminum | $ | (0.5) | | | $ | 1.11 | | | $ | 0.5 | | | $ | (0.5) | |
| Copper | $ | (2.2) | | | $ | 3.80 | | | $ | 3.1 | | | $ | (3.1) | |
| Platinum | $ | 0.9 | | | $ | 1,070.21 | | | $ | 1.2 | | | $ | (1.2) | |
| Palladium | $ | (0.5) | | | $ | 1,803.34 | | | $ | 0.2 | | | $ | (0.2) | |
| | | | | | | | | | | | | | | | | | | | | | | |
| Net (Liability)/Asset Balance as of December 31, 2021 | | Average Forward Price Per Unit as of December 31, 2021 | | Increase/(Decrease) to Pre-tax Earnings Due to |
| (In millions, except per unit amounts) | | | 10% Increase
in the Forward Price | | 10% Decrease
in the Forward Price |
| Silver | $ | (1.7) | | | $ | 23.24 | | | $ | 2.8 | | | $ | (2.8) | |
| Gold | $ | 0.0 | | | $ | 1,827.45 | | | $ | 1.7 | | | $ | (1.7) | |
| Nickel | $ | 0.3 | | | $ | 9.32 | | | $ | 0.2 | | | $ | (0.2) | |
| Aluminum | $ | 0.6 | | | $ | 1.25 | | | $ | 0.5 | | | $ | (0.5) | |
| Copper | $ | 1.1 | | | $ | 4.37 | | | $ | 2.9 | | | $ | (2.9) | |
| Platinum | $ | (1.0) | | | $ | 952.76 | | | $ | 1.2 | | | $ | (1.2) | |
| Palladium | $ | (0.8) | | | $ | 1,872.73 | | | $ | 0.3 | | | $ | (0.3) | |
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
1.Financial Statements
The following audited consolidated financial statements of Sensata Technologies Holding plc are included in this Annual Report on Form 10-K:
2.Financial Statement Schedules
The following schedules are included elsewhere in this Annual Report on Form 10-K:
Schedules other than those listed above have been omitted since the required information is not present, or not present in amounts sufficient to require submission of the schedule, or because the information required is included in the audited consolidated financial statements or the notes thereto.
Report of Independent Registered Public Accounting Firm
To the Shareholders and the Board of Directors of
Sensata Technologies Holding plc
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Sensata Technologies Holding plc (the Company) as of December 31, 2022 and 2021, the related consolidated statements of operations, comprehensive income, cash flows and changes in shareholders’ equity for each of the three years in the period ended December 31, 2022, and the related notes and financial statement schedules listed in the Index at Item 15(a) (collectively referred to as the "consolidated financial statements"). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company at December 31, 2022 and 2021, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2022, in conformity with U.S. generally accepted accounting principles.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the Company's internal control over financial reporting as of December 31, 2022, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) and our report dated February 13, 2023 expressed an unqualified opinion thereon.
Basis for Opinion
These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
Critical Audit Matters
The critical audit matters communicated below are matters arising from the current period audit of the financial statements that were communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the financial statements and (2) involved our especially challenging, subjective or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matters below, providing separate opinions on the critical audit matters or on the accounts or disclosures to which they relate.
| | | | | |
| Goodwill - Quantitative Impairment Assessment |
| Description of the Matter | As of December 31, 2022, the Company’s goodwill balance was $3.9 billion. The Company’s goodwill is initially assigned to its reporting units as of the acquisition date. As discussed in Note 2 of the consolidated financial statements, goodwill is tested for impairment at the reporting unit level. The Company evaluated goodwill for impairment as of October 1, 2022, and used the quantitative method to assess their goodwill for impairment. |
| |
| | | | | |
| Auditing management’s quantitative goodwill impairment test involved a high degree of auditor judgment due to the significant estimation required to determine the fair value of each reporting unit. In particular, the fair value estimate for certain reporting units was sensitive to significant assumptions such as the long-range forecasts, the selection of discount rates, and the estimation of the multiples or long-term growth rates used in valuing the terminal year which are affected by expectations about future market or economic conditions, which led to a high degree of auditor judgment, subjectivity and effort in performing procedures and evaluating management's significant assumptions as outlined above, used in determining the fair value of these reporting units. |
| |
| How We Addressed the Matter in Our Audit | We obtained an understanding, evaluated the design and tested the operating effectiveness of controls over the Company’s quantitative goodwill impairment review process. For example, we tested controls over management’s review of the data used in their valuation models and reviewed significant assumptions discussed above used in determining the reporting unit fair values. |
| |
| To test the estimated fair value of the Company’s reporting units, with the assistance of our valuation professionals, our audit procedures included, among others, assessing fair value methodologies and testing the significant assumptions discussed above. We compared the significant assumptions used by management to current industry and economic trends, the Company’s historical trends with consideration given to changes in the Company’s business, customer base or product mix and other relevant factors. We assessed the historical accuracy of management’s estimates and performed sensitivity analyses of significant assumptions to evaluate the changes in the fair value of the reporting units that would result from changes in the assumptions. We also evaluated the reconciliation of the estimated aggregate fair value of the reporting units to the Company’s market capitalization. |
| |
| Income Taxes – Uncertain Tax Positions |
| Description of the Matter | As discussed in Note 7, at December 31, 2022, the Company had approximately $224.6 million of unrecognized tax benefits associated with uncertain tax positions. Uncertainty in a tax position may arise as tax laws are subject to interpretation. The Company uses significant judgment in (1) determining whether a tax position’s technical merits are more-likely-than-not to be sustained and (2) measuring the amount of tax benefit that qualifies for recognition. |
| |
| Auditing the recognition and measurement of tax positions related to uncertain tax positions involved significant auditor judgment and use of tax professionals with specialized skills and knowledge because both the recognition and measurement of the tax positions are complex, highly judgmental and based on interpretations of tax laws and legal rulings. |
| |
| How We Addressed the Matter in Our Audit | We obtained an understanding, evaluated the design and tested the operating effectiveness of controls over the Company’s process to identify and record the reserve for uncertain tax positions. For example, we tested controls over management’s evaluation of the technical merits of tax positions and identification of uncertain tax positions and the controls to measure the benefit of those tax positions, including management’s review of the inputs and calculations of unrecognized tax benefits resulting from uncertain tax positions. |
| |
| To test the amounts recorded as uncertain tax positions we involved our tax professionals to evaluate the technical merits of the Company’s income tax positions. Our procedures included, among others, evaluating income tax technical analysis or other third-party advice obtained by the Company and inspecting correspondence from the relevant tax authorities. We also applied our knowledge and experience with the application of federal, foreign and state income tax laws to evaluate the Company’s accounting for those tax positions. We analyzed the Company’s assumptions and data used to determine the amount of tax benefit to recognize and tested the accuracy of the calculations. We also evaluated the Company’s income tax disclosures included in Note 7 in relation to these matters. |
| |
| Accounting for Acquisitions – Valuation of Identified Intangibles |
| Description of the Matter | As described in Note 21 to the consolidated financial statements, the Company completed the acquisition of DP Acquisition Corp ("Dynapower") for an aggregate cash purchase price of $577.5 million in 2022. The transaction was accounted for as a business combination. The allocation of purchase price is preliminary and is subject to revision as the final valuations are completed. |
| |
| | | | | |
| Auditing the Company's accounting for its acquisition of Dynapower was complex due to the significant estimation required by management in determining the fair value of identifiable intangible assets of $164.4 million, which principally consisted of completed technologies, customer relationships, and tradename assets. The significant estimation uncertainty was primarily due to the sensitivity of the respective fair values to underlying assumptions about the future performance of the acquired business. The Company used the income approach to measure the completed technologies, customer relationships, and tradenames intangible assets. The significant assumptions used to estimate the fair value of these intangible assets included the expected discounted future net cash flows generated by each asset. These significant assumptions are forward looking and could be affected by future economic and market conditions. |
| |
| How We Addressed the Matter in Our Audit | We obtained an understanding, evaluated the design and tested the operating effectiveness of controls over the Company's process for valuing intangible assets acquired in business combinations. For example, we tested controls over the appropriateness of the valuation model, assumptions management used and the completeness and accuracy of the data underlying the valuation of the completed technologies, customer relationships and tradenames intangible assets. |
| |
| To test the estimated fair value of the completed technologies, customer relationships and tradenames intangible assets, our audit procedures included, among others, assessing methodologies and testing the significant assumptions discussed above and the underlying data supporting the significant assumptions and estimates used by the Company in the valuations. We tested significant assumptions through a combination of procedures, as applicable for each assumption, including comparing them to current and forecasted industry trends, as well as to the historical results of the acquired business and other guideline companies within the same industry. With the assistance of our valuation specialists, we evaluated the methodology used by the Company and significant assumptions included in the fair value estimates. |
We have served as the Company's auditor since 2005.
Boston, Massachusetts
February 13, 2023
SENSATA TECHNOLOGIES HOLDING PLC
Consolidated Balance Sheets
(In thousands, except per share amounts)
| | | | | | | | | | | |
| As of December 31, |
| 2022 | | 2021 |
| Assets | | | |
| Current assets: | | | |
| Cash and cash equivalents | $ | 1,225,518 | | | $ | 1,708,955 | |
Accounts receivable, net of allowances of $24,246 and $17,003 as of December 31, 2022 and 2021, respectively | 742,382 | | | 653,438 | |
| Inventories | 644,875 | | | 588,231 | |
| Prepaid expenses and other current assets | 162,268 | | | 126,370 | |
| Total current assets | 2,775,043 | | | 3,076,994 | |
| Property, plant and equipment, net | 840,819 | | | 820,933 | |
| Goodwill | 3,911,224 | | | 3,502,063 | |
| Other intangible assets, net | 999,722 | | | 946,731 | |
| Deferred income tax assets | 100,539 | | | 105,028 | |
| Other assets | 128,873 | | | 162,017 | |
| Total assets | $ | 8,756,220 | | | $ | 8,613,766 | |
| Liabilities and shareholders' equity | | | |
| Current liabilities: | | | |
| Current portion of long-term debt, finance lease and other financing obligations | $ | 256,471 | | | $ | 6,833 | |
| Accounts payable | 531,572 | | | 459,093 | |
| Income taxes payable | 43,987 | | | 26,517 | |
| Accrued expenses and other current liabilities | 346,942 | | | 343,816 | |
| Total current liabilities | 1,178,972 | | | 836,259 | |
| Deferred income tax liabilities | 364,593 | | | 339,273 | |
| Pension and other post-retirement benefit obligations | 36,086 | | | 38,758 | |
| Finance lease and other financing obligations, less current portion | 24,742 | | | 26,564 | |
| Long-term debt, net | 3,958,928 | | | 4,214,946 | |
| Other long-term liabilities | 82,092 | | | 63,232 | |
| Total liabilities | 5,645,413 | | | 5,519,032 | |
| Commitments and contingencies (Note 15) | | | |
| Shareholders' equity: | | | |
| | | |
Ordinary shares, €0.01 nominal value per share, 177,069 shares authorized and 175,207 and 174,287 shares issued as of December 31, 2022 and 2021, respectively | 2,242 | | | 2,232 | |
Treasury shares, at cost, 22,781 and 16,438 shares as of December 31, 2022 and 2021, respectively | (1,124,713) | | | (832,439) | |
| Additional paid-in capital | 1,866,201 | | | 1,812,244 | |
| Retained earnings | 2,383,341 | | | 2,132,257 | |
| Accumulated other comprehensive loss | (16,264) | | | (19,560) | |
| Total shareholders' equity | 3,110,807 | | | 3,094,734 | |
| Total liabilities and shareholders' equity | $ | 8,756,220 | | | $ | 8,613,766 | |
The accompanying notes are an integral part of these financial statements.
SENSATA TECHNOLOGIES HOLDING PLC
Consolidated Statements of Operations
(In thousands, except per share amounts)
| | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| | 2022 | | 2021 | | 2020 |
| Net revenue | $ | 4,029,262 | | | $ | 3,820,806 | | | $ | 3,045,578 | |
| Operating costs and expenses: | | | | | |
| Cost of revenue | 2,712,048 | | | 2,542,434 | | | 2,119,044 | |
| Research and development | 189,344 | | | 159,072 | | | 131,429 | |
| Selling, general and administrative | 370,644 | | | 336,989 | | | 294,725 | |
| Amortization of intangible assets | 153,787 | | | 134,129 | | | 129,549 | |
| Restructuring and other charges, net | (66,700) | | | 14,942 | | | 33,094 | |
| Total operating costs and expenses | 3,359,123 | | | 3,187,566 | | | 2,707,841 | |
| Operating income | 670,139 | | | 633,240 | | | 337,737 | |
| Interest expense, net | (178,819) | | | (179,291) | | | (171,757) | |
| Other, net | (94,618) | | | (40,032) | | | (339) | |
| Income before taxes | 396,702 | | | 413,917 | | | 165,641 | |
| Provision for income taxes | 86,017 | | | 50,337 | | | 1,355 | |
| Net income | 310,685 | | | 363,580 | | | 164,286 | |
| Basic net income per share | $ | 2.00 | | | $ | 2.30 | | | $ | 1.04 | |
| Diluted net income per share | $ | 1.99 | | | $ | 2.28 | | | $ | 1.04 | |
The accompanying notes are an integral part of these financial statements.
SENSATA TECHNOLOGIES HOLDING PLC
Consolidated Statements of Comprehensive Income
(In thousands)
| | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| | 2022 | | 2021 | | 2020 |
| Net income | $ | 310,685 | | | $ | 363,580 | | | $ | 164,286 | |
| Other comprehensive (loss)/income, net of tax: | | | | | |
| Cash flow hedges | (1,166) | | | 23,564 | | | (23,279) | |
| | | | | |
| Defined benefit and retiree healthcare plans | 4,462 | | | 6,411 | | | (5,772) | |
| Other comprehensive (loss)/income | 3,296 | | | 29,975 | | | (29,051) | |
| Comprehensive income | $ | 313,981 | | | $ | 393,555 | | | $ | 135,235 | |
| | | | | |
| | | | | |
The accompanying notes are an integral part of these financial statements.
SENSATA TECHNOLOGIES HOLDING PLC
Consolidated Statements of Cash Flows
(In thousands)
| | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| | 2022 | | 2021 | | 2020 |
| Cash flows from operating activities: | | | | | |
| Net income | $ | 310,685 | | | $ | 363,580 | | | $ | 164,286 | |
| Adjustments to reconcile net income to net cash provided by operating activities: | | | | | |
| Depreciation | 127,184 | | | 124,959 | | | 125,680 | |
| Amortization of debt issuance costs | 6,969 | | | 6,858 | | | 6,854 | |
| Gain on sale of business | (135,112) | | | — | | | — | |
| Share-based compensation | 31,791 | | | 25,663 | | | 19,125 | |
| Loss on debt financing | 5,468 | | | 30,066 | | | — | |
| Amortization of intangible assets | 153,787 | | | 134,129 | | | 129,549 | |
| Deferred income taxes | (781) | | | (5,270) | | | (44,900) | |
| Acquisition-related compensation payments | (23,500) | | | (15,630) | | | — | |
| Mark-to-market loss on equity investments, net | 75,569 | | | — | | | — | |
| Unrealized loss on derivative instruments and other | 34,309 | | | 13,837 | | | 4,709 | |
| Changes in operating assets and liabilities, net of the effects of acquisitions: | | | | | |
| Accounts receivable, net | (108,992) | | | (48,106) | | | (16,668) | |
| Inventories | (44,362) | | | (119,961) | | | 58,390 | |
| Prepaid expenses and other current assets | (16,961) | | | 6,624 | | | 36,431 | |
| Accounts payable and accrued expenses | 40,930 | | | 35,333 | | | 90,479 | |
| Income taxes payable | 17,490 | | | 8,602 | | | (16,019) | |
| Other | (13,881) | | | (6,533) | | | 1,859 | |
| Net cash provided by operating activities | 460,593 | | | 554,151 | | | 559,775 | |
| Cash flows from investing activities: | | | | | |
| Acquisitions, net of cash received | (631,516) | | | (736,077) | | | (64,432) | |
| Additions to property, plant and equipment and capitalized software | (150,064) | | | (144,403) | | | (106,719) | |
| Investment in debt and equity securities | (7,983) | | | (5,533) | | | (22,963) | |
| Proceeds from sale of business, net of cash sold | 198,841 | | | — | | | — | |
| Other | 152 | | | 3,919 | | | 12,022 | |
| Net cash used in investing activities | (590,570) | | | (882,094) | | | (182,092) | |
| Cash flows from financing activities: | | | | | |
| Proceeds from exercise of stock options and issuance of ordinary shares | 22,803 | | | 26,290 | | | 15,457 | |
| Payment of employee restricted stock tax withholdings | (8,525) | | | (9,048) | | | (2,911) | |
| Proceeds from borrowings on debt | 500,000 | | | 1,001,875 | | | 1,150,000 | |
| Payments on debt | (510,701) | | | (763,263) | | | (408,914) | |
| Dividends paid | (51,072) | | | — | | | — | |
| Payments to repurchase ordinary shares | (292,274) | | | (47,843) | | | (35,175) | |
| | | | | |
| Payments of debt financing costs | (13,691) | | | (33,093) | | | (8,279) | |
| | | | | |
| Net cash (used in)/provided by financing activities | (353,460) | | | 174,918 | | | 710,178 | |
| Net change in cash and cash equivalents | (483,437) | | | (153,025) | | | 1,087,861 | |
| Cash and cash equivalents, beginning of year | 1,708,955 | | | 1,861,980 | | | 774,119 | |
| Cash and cash equivalents, end of year | $ | 1,225,518 | | | $ | 1,708,955 | | | $ | 1,861,980 | |
| Supplemental cash flow items: | | | | | |
| Cash paid for interest | $ | 188,533 | | | $ | 188,857 | | | $ | 164,494 | |
| Cash paid for income taxes | $ | 68,768 | | | $ | 66,642 | | | $ | 65,823 | |
The accompanying notes are an integral part of these financial statements.
SENSATA TECHNOLOGIES HOLDING PLC
Consolidated Statements of Changes in Shareholders' Equity
(In thousands)
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Ordinary Shares | | Treasury Shares | | Additional
Paid-In
Capital | | Retained Earnings | | Accumulated
Other
Comprehensive
Loss | | | | Total Shareholders' Equity |
| | Number | | Amount | | Number | | Amount | | |
| Balance as of December 31, 2019 | 172,561 | | | $ | 2,212 | | | (14,733) | | | $ | (749,421) | | | $ | 1,725,091 | | | $ | 1,616,357 | | | $ | (20,484) | | | | | $ | 2,573,755 | |
| Surrender of shares for tax withholding | — | | | — | | | (96) | | | (2,911) | | | — | | | — | | | — | | | | | (2,911) | |
| Stock options exercised | 452 | | | 5 | | | — | | | — | | | 15,452 | | | — | | | — | | | | | 15,457 | |
| Vesting of restricted securities | 349 | | | 4 | | | — | | | — | | | — | | | (4) | | | — | | | | | — | |
| Repurchase of ordinary shares | — | | | — | | | (898) | | | (35,175) | | | — | | | — | | | — | | | | | (35,175) | |
| Retirement of ordinary shares | (96) | | | (1) | | | 96 | | | 2,911 | | | — | | | (2,910) | | | — | | | | | — | |
| Share-based compensation | — | | | — | | | — | | | — | | | 19,125 | | | — | | | — | | | | | 19,125 | |
| Net income | — | | | — | | | — | | | — | | | — | | | 164,286 | | | — | | | | | 164,286 | |
| Other comprehensive loss | — | | | — | | | — | | | — | | | — | | | — | | | (29,051) | | | | | (29,051) | |
| Balance as of December 31, 2020 | 173,266 | | | 2,220 | | | (15,631) | | | (784,596) | | | 1,759,668 | | | 1,777,729 | | | (49,535) | | | | | 2,705,486 | |
| Surrender of shares for tax withholding | — | | | — | | | (155) | | | (9,048) | | | — | | | — | | | — | | | | | (9,048) | |
| Stock options exercised | 707 | | | 8 | | | — | | | — | | | 26,913 | | | — | | | — | | | | | 26,921 | |
| Vesting of restricted securities | 469 | | | 6 | | | — | | | — | | | — | | | (6) | | | — | | | | | — | |
| Repurchase of ordinary shares | — | | | — | | | (807) | | | (47,843) | | | — | | | — | | | — | | | | | (47,843) | |
| Retirement of ordinary shares | (155) | | | (2) | | | 155 | | | 9,048 | | | — | | | (9,046) | | | — | | | | | — | |
| Share-based compensation | — | | | — | | | — | | | — | | | 25,663 | | | — | | | — | | | | | 25,663 | |
| Net income | — | | | — | | | — | | | — | | | — | | | 363,580 | | | — | | | | | 363,580 | |
| Other comprehensive income | — | | | — | | | — | | | — | | | — | | | — | | | 29,975 | | | | | 29,975 | |
| Balance as of December 31, 2021 | 174,287 | | | 2,232 | | | (16,438) | | | (832,439) | | | 1,812,244 | | | 2,132,257 | | | (19,560) | | | | | 3,094,734 | |
| Surrender of shares for tax withholding | — | | | — | | | (174) | | | (8,525) | | | — | | | — | | | — | | | | | (8,525) | |
| Stock options exercised | 572 | | | 6 | | | — | | | — | | | 22,166 | | | — | | | — | | | | | 22,172 | |
| Vesting of restricted securities | 522 | | | 6 | | | — | | | — | | | — | | | (6) | | | — | | | | | — | |
| Cash dividends paid | — | | | — | | | — | | | — | | | — | | | (51,072) | | | — | | | | | (51,072) | |
| Repurchase of ordinary shares | — | | | — | | | (6,343) | | | (292,274) | | | — | | | — | | | — | | | | | (292,274) | |
| Retirement of ordinary shares | (174) | | | (2) | | | 174 | | | 8,525 | | | — | | | (8,523) | | | — | | | | | — | |
| Share-based compensation | — | | | — | | | — | | | — | | | 31,791 | | | — | | | — | | | | | 31,791 | |
| Net income | — | | | — | | | — | | | — | | | — | | | 310,685 | | | — | | | | | 310,685 | |
| | | | | | | | | | | | | | | | | |
| Other comprehensive loss | — | | | — | | | — | | | — | | | — | | | — | | | 3,296 | | | | | 3,296 | |
| | | | | | | | | | | | | | | | | |
| Balance as of December 31, 2022 | 175,207 | | | $ | 2,242 | | | (22,781) | | | $ | (1,124,713) | | | $ | 1,866,201 | | | $ | 2,383,341 | | | $ | (16,264) | | | | | $ | 3,110,807 | |
The accompanying notes are an integral part of these financial statements.
SENSATA TECHNOLOGIES HOLDING PLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Business Description and Basis of Presentation
Description of Business
The accompanying audited consolidated financial statements reflect the financial position, results of operations, comprehensive income, cash flows, and changes in shareholders' equity of Sensata Technologies Holding plc ("Sensata plc"), a public limited company incorporated under the laws of England and Wales, and its consolidated subsidiaries, collectively referred to as the "Company," "Sensata," "we," "our," and "us."
We are a global industrial technology company that develops, manufactures, and sells sensors and sensor-rich solutions, electrical protection components and systems, and other products that are used in mission-critical systems and applications that create valuable business insights for our customers and end users. Our sensors are used by our customers to translate a physical parameter, such as pressure, temperature, position, or location of an object, into electronic signals that our customers’ products and solutions can act upon. These actionable insights lead to products that are safer, cleaner, more efficient, more electrified, and increasingly more connected. Our electrical protection portfolio (which includes both components and systems) is comprised of various switches, fuses, battery management systems, inverters, energy storage systems, high-voltage distribution units, controllers, and software, and includes high-voltage contactors and other products embedded within systems to maximize their efficiency and performance and ensure safety. Other products and services we provide include vehicle area networks and data collection devices and software, battery storage systems, and power conversion systems, the latter of which include inverters, converters, and rectifiers for renewable energy generation, green hydrogen production, electric vehicle charging stations, and microgrid applications, as well as industrial and defense applications.
Sensata plc conducts its operations through subsidiary companies that operate business and product development centers primarily in Belgium, Bulgaria, China, Denmark, India, Japan, Lithuania, the Netherlands, South Korea, the United Kingdom (the "U.K."), and the United States (the "U.S."); and manufacturing operations primarily in Bulgaria, China, Malaysia, Mexico, the U.K., and the U.S.
We present financial information for two reportable segments, Performance Sensing and Sensing Solutions. Refer to Note 20: Segment Reporting for additional information related to each of our segments.
Basis of Presentation
The accompanying audited consolidated financial statements have been prepared in accordance with U.S. generally accepted accounting principles ("GAAP") and present separately our financial position, results of operations, comprehensive income, cash flows, and changes in shareholders’ equity.
All intercompany balances and transactions have been eliminated. All U.S. dollar ("USD") and share amounts presented, except per share amounts, are stated in thousands, unless otherwise indicated.
2. Significant Accounting Policies
Use of Estimates
The preparation of consolidated financial statements in accordance with U.S. GAAP requires us to exercise our judgment in the process of applying our accounting policies. It also requires that we make estimates and assumptions that affect the reported amounts of assets and liabilities, disclosures of contingencies at the date of the financial statements, and the reported amounts of net revenue and expense during the reporting periods.
Estimates are used when accounting for certain items such as: allowance for doubtful accounts and sales returns; inventory obsolescence; asset impairments (including goodwill and other intangible assets); contingencies; the value of certain equity awards and the measurement of share-based compensation; the determination of accrued expenses; certain asset valuations; accounting for income taxes; the useful lives of plant and equipment; measurement of our post-retirement benefit obligations; and with respect to business combinations, valuation of contingent consideration and the identification, valuation, and determination of useful lives of acquired identifiable intangible assets. The accounting estimates used in the preparation of the consolidated financial statements may change as new events occur, as more experience is acquired, as additional information is obtained, and as the operating environment changes. Actual results could differ from those estimates.
Revenue Recognition
We recognize revenue to depict the transfer of promised goods to customers in an amount that reflects the consideration to which we expect to be entitled in exchange for those goods. In order to achieve this, we use the five-step model outlined in Financial Accounting Standards Board ("FASB") Accounting Standards Codification ("ASC") Topic 606, Revenue from Contracts with Customers. This five-step model requires us to identify the contract with the customer, identify the performance obligation(s) in the contract, determine the transaction price, allocate the transaction price to the performance obligation(s), and recognize revenue when (or as) we satisfy the performance obligation(s).
The vast majority of our contracts (as defined in FASB ASC Topic 606) are customer purchase orders that require us to transfer specified quantities of tangible products to our customers. These performance obligations are generally satisfied within a short period of time. Amounts billed to our customers for shipping and handling after control has transferred are recognized as revenue and the related costs that we incur are presented in cost of revenue.
In determining the transaction price, we evaluate whether the consideration promised in the contract includes a variable amount and, if applicable, we include in the transaction price some or all of an amount of variable consideration only to the extent it is probable that a significant reversal in the amount of cumulative revenue recognized will not occur when the uncertainty associated with the variable consideration is subsequently resolved. Variable consideration may be explicitly stated in the contract or implied based on our customary practices. Examples of variable consideration present in our contracts include rights of return, in the case of a defective or non-conforming product, and trade discounts, including early payment discounts and retrospective volume discounts. Such variable consideration has not historically been material in relation to our net revenue. Our contract terms generally require the customer to make payment shortly (that is, less than one year) after the shipment date. In such instances, we do not consider the effects of a significant financing component in determining the transaction price. Lastly, we exclude from our determination of the transaction price value-added tax and other similar taxes.
Our performance obligations are satisfied, and revenue is recognized, when control of the product is transferred to the customer. The transfer of control generally occurs at the point in time the product is shipped from our warehouse or, less often, at the point in time it is received by the customer, depending on the specific terms of the arrangement. Many of our products are designed and engineered to meet customer specifications. These activities, and the testing of our products to determine compliance with those specifications, occur prior to any revenue being recognized. Products are then manufactured and sold to customers. However, in certain cases, pre-production activities are a performance obligation in a customer purchase order, and revenue is recognized when the performance obligation is satisfied. Customer arrangements do not involve post-installation or post-sale testing and acceptance.
Our standard terms of sale provide our customers with a warranty against faulty workmanship and the use of defective materials, which is not considered a distinct performance obligation in accordance with FASB ASC Topic 606. Depending on the product, we generally provide such warranties for a period of three years after the date we ship the product to our original equipment manufacturer ("OEM") customers or for a period of twelve months after the date the customer resells our product to the end consumer, whichever comes first. Our liability associated with this warranty is, at our option, to repair the product, replace the product, or provide the customer with a credit. We do not offer separately priced extended warranty or product maintenance contracts. We also sell products to customers under negotiated agreements or where we have accepted the customer’s terms of purchase. In these instances, we may provide additional warranties for longer durations, consistent with differing end market practices, and where our liability is not limited. In addition, many sales take place in situations where commercial or civil codes or other laws would imply various warranties and restrict limitations on liability.
Refer to Note 3: Revenue Recognition for additional information related to the net revenue recognized in the consolidated statements of operations.
Share-Based Compensation
We measure at fair value any new or modified share-based compensation arrangements with employees, such as stock options and restricted securities, and recognize as compensation expense that fair value over the requisite service period in accordance with FASB ASC Topic 718, Compensation—Stock Compensation. Share-based compensation expense is generally recognized as a component of selling, general and administrative ("SG&A") expense, which is consistent with where the related employee costs are presented, however, such costs, or a portion thereof, may be capitalized provided certain criteria are met.
Share-based awards may be subject to either cliff vesting (i.e., the entire award vests on a particular date) or graded vesting (i.e., portions of the award vest at different points in time). In accordance with FASB ASC Topic 718, compensation expense associated with share-based awards subject to cliff vesting must be recognized on a straight-line basis. For awards without performance conditions that are subject to graded vesting, companies have the option to recognize compensation expense either
on a straight-line or accelerated basis. We have elected to recognize compensation expense for these awards on a straight-line basis. However, awards that are subject to both graded vesting and performance conditions must be expensed on an accelerated basis.
Restricted securities are valued using the closing price of our ordinary shares on the New York Stock Exchange (the "NYSE") on the grant date. Certain of our restricted securities include performance conditions, which require us to estimate the probable outcome of the performance condition. Compensation expense is recognized if it is probable that the performance condition will be achieved.
We elect to recognize share-based compensation expense net of estimated forfeitures as permitted by FASB ASC Topic 718. Accordingly, we only recognize compensation expense for those awards expected to vest over the requisite service period. Compensation expense recognized for each award ultimately reflects the number of units that actually vest.
Refer to Note 4: Share-Based Payment Plans for additional information related to share-based compensation.
Financial Instruments
Our material financial instruments include derivative instruments, debt instruments, equity investments, and trade accounts receivable.
Derivative financial instruments
We account for derivative financial instruments in accordance with FASB ASC Topic 820, Fair Value Measurement and FASB ASC Topic 815, Derivatives and Hedging. In accordance with FASB ASC Topic 815, we recognize all derivatives on the balance sheet at fair value. The fair value of our derivative financial instruments is determined using widely accepted valuation techniques, including discounted cash flow analysis on the expected net cash flows of each instrument. These analyses utilize observable market-based inputs, including foreign currency exchange rates and commodity forward curves, and reflect the contractual terms of these instruments, including the period to maturity.
Derivative instruments that are designated and qualify as hedges of the exposure to changes in the fair value of an asset, liability, or commitment, and that are attributable to a particular risk, such as interest rate risk, are considered fair value hedges. Derivative instruments that are designated and qualify as hedges of the exposure to variability in expected future cash flows are considered cash flow hedges. Derivative instruments may also be designated as hedges of the foreign currency exposure of a net investment in a foreign operation. Currently, all of our derivative instruments that are designated as accounting hedges are cash flow hedges. We also hold derivative instruments that are not designated as accounting hedges.
The accounting for changes in the fair value of our cash flow hedges depends on whether we have elected to designate the derivative as a hedging instrument for accounting purposes and whether the hedging relationship has satisfied the criteria necessary to apply hedge accounting. In accordance with FASB ASC Topic 815, both the effective and ineffective portions of changes in the fair value of derivatives designated and qualifying as cash flow hedges are recognized in accumulated other comprehensive loss and are subsequently reclassified into earnings in the period in which the hedged forecasted transaction affects earnings. Changes in the fair value of derivative instruments that are not designated as accounting hedges are recognized immediately in other, net. Refer to Note 16: Shareholders' Equity and Note 19: Derivative Instruments and Hedging Activities for additional information related to the reclassification of amounts from accumulated other comprehensive loss into earnings.
We present the cash flows arising from our derivative financial instruments in a manner consistent with the presentation of cash flows that relate to the underlying hedged items.
We incorporate credit valuation adjustments to appropriately reflect both our own non-performance risk and the respective counterparty’s non-performance risk in the fair value measurements. In adjusting the fair value of our derivative contracts for the effect of non-performance risk, we have considered the impact of netting and any applicable credit enhancements, such as collateral postings, thresholds, mutual puts, and guarantees. We do not offset the fair value amounts recognized for derivative instruments against fair value amounts recognized for the right to reclaim cash collateral or the obligation to return cash collateral. We maintain derivative instruments with major financial institutions of investment grade credit rating and monitor the amount of credit exposure to any one issuer. We believe there are no significant concentrations of risk associated with our derivative instruments.
Refer to Note 19: Derivative Instruments and Hedging Activities for additional information related to our derivative instruments.
Debt Instruments
A premium or discount on a debt instrument is recognized on the balance sheet as an adjustment to the carrying value of the debt liability. In general, amounts paid to creditors are considered a reduction in the proceeds received from the issuance of the debt and are accounted for as a component of the premium or discount on the issuance, not as an issuance cost.
Direct and incremental costs associated with the issuance of debt instruments such as legal fees, printing costs, and underwriters' fees, among others, paid to parties other than creditors, are also reported and presented as a reduction of debt on the consolidated balance sheets.
Debt issuance costs and premiums or discounts are amortized over the term of the respective financing arrangement using the effective interest method. Amortization of these amounts is included as a component of interest expense, net in the consolidated statements of operations.
In accounting for debt financing transactions, we apply the provisions of FASB ASC Subtopic 470-50, Modifications and Extinguishments. Our evaluation of the accounting under FASB ASC Subtopic 470-50 is done on a creditor-by-creditor basis in order to determine if the terms of the debt are substantially different and, as a result, whether to apply modification or extinguishment accounting. In the event that an individual holder of existing debt did not invest in new debt, we apply extinguishment accounting. Borrowings associated with individual holders of new debt that are not holders of existing debt are accounted for as new issuances.
Refer to Note 14: Debt for additional information related to our debt instruments and transactions.
Equity Investments
We measure equity investments (other than those accounted for under the equity method, those that result in consolidation of the investee, and certain other investments) either at fair value, with changes to fair value recognized in net income, or, in certain instances, by use of a measurement alternative prescribed in FASB ASC Topic 321, Investments - Equity Securities. Under the measurement alternative, such investments are measured at cost, less any impairment, plus or minus changes resulting from observable price changes in orderly transactions for an identical or similar investment of the same issuer.
Refer to Note 18: Fair Value Measures for additional information related to our measurement of financial instruments, including equity investments.
Trade accounts receivable
Trade accounts receivable are recognized at invoiced amounts and do not bear interest. Trade accounts receivable are reduced by an allowance for losses on receivables. Concentrations of risk with respect to trade accounts receivable are generally limited due to the large number of customers in various industries and their dispersion across several geographic areas. Although we do not foresee that credit risk associated with these receivables will deviate from historical experience, repayment is dependent upon the financial stability of these individual customers. We estimate an allowance for credit losses on trade accounts receivable at an amount that represents our estimated expected credit losses over the lifetime of our receivables. Our contract terms generally require the customer to make payment shortly after (that is, less than one year) the shipment date. Our largest customer accounted for approximately 6% of our net revenue for the year ended December 31, 2022.
Allowance for Losses on Receivables
The allowance for losses on receivables is used to present accounts receivable, net at an amount that represents our estimate of the related transaction price recognized as revenue in accordance with FASB ASC Topic 606. The allowance represents an estimate of expected credit losses over the lifetime of our receivables, even if the loss is considered remote, and reflects expected recoveries of amounts previously written-off. We estimate the allowance on the basis of specifically identified receivables that are evaluated individually for impairment and a statistical analysis of the remaining receivables determined by reference to past default experience. We consider the need to adjust historical information to reflect the extent to which we expect current conditions and reasonable forecasts to differ from the conditions that existed for the historical period considered. The allowance for losses on receivables also includes an allowance for sales returns (variable consideration).
Management judgments are used to determine when to charge off uncollectible trade accounts receivable. We base these judgments on the age of the receivable, credit quality of the customer, current economic conditions, and other factors that may affect a customer’s ability and intent to pay. Customers are generally not required to provide collateral for purchases.
Losses on receivables have not historically been significant.
Goodwill and Other Intangible Assets
Businesses acquired are recognized at their fair value on the date of acquisition, with the excess of the purchase price over the fair value of identifiable assets acquired and liabilities assumed recognized as goodwill. Intangible assets acquired may include either definite-lived or indefinite-lived intangible assets, or both.
In accordance with the guidance in FASB ASC Topic 350, Intangibles—Goodwill and Other, goodwill and intangible assets determined to have an indefinite useful life are not amortized. Instead, these assets are evaluated for impairment on an annual basis and whenever events or business conditions change that could indicate that the asset is impaired. We evaluate goodwill and indefinite-lived intangible assets for impairment in the fourth quarter of each fiscal year, unless events occur which trigger the need for an earlier impairment review.
Goodwill
Our reporting units have been identified based on the definitions and guidance provided in FASB ASC Topic 350. Identification of reporting units includes an analysis of the components that comprise each of our operating segments, which considers, among other things, the manner in which we operate our business and the availability of discrete financial information. Components of an operating segment are aggregated to form one reporting unit if the components have similar economic characteristics. We periodically review these reporting units to ensure that they continue to reflect the manner in which the business is operated.
Some assets and liabilities relate to the operations of multiple reporting units. We allocate these assets and liabilities to the related reporting units based on methods that we believe are reasonable and supportable. We apply that allocation method on a consistent basis from year to year. Other assets and liabilities, such as debt, cash and cash equivalents, and property, plant and equipment ("PP&E") associated with our corporate offices, are viewed as being corporate in nature. Accordingly, we do not assign these assets and liabilities to our reporting units.
In the event we reorganize our business, we reassign the assets (including goodwill) and liabilities among the affected reporting units using a reasonable and supportable methodology. As businesses are acquired, we assign assets acquired (including goodwill) and liabilities assumed to a new or existing reporting unit as of the date of the acquisition. In the event a disposal group meets the definition of a business, goodwill is allocated to the disposal group based on the relative fair value of the disposal group to the retained portion of the related reporting unit.
We have the option to first assess qualitative factors to determine whether a quantitative analysis must be performed. The objective of a qualitative analysis is to assess whether it is more likely than not that the fair value of a reporting unit is less than its carrying value. We make this assessment based on macroeconomic conditions, industry and market considerations, cost factors, overall financial performance, and other relevant factors as applicable. If we elect not to use this option, or if we determine that it is more likely than not that the fair value of a reporting unit is less than its carrying value, then we prepare a discounted cash flow analysis to determine whether the carrying value of reporting unit exceeds its estimated fair value. If the carrying value of a reporting unit exceeds its estimated fair value, we recognize an impairment of goodwill for the amount of this excess, in accordance with the guidance in FASB ASC Topic 350.
Indefinite-lived intangible assets
Similar to goodwill, we perform an annual impairment review of our indefinite-lived intangible assets in the fourth quarter of each fiscal year, unless events occur that trigger the need for an earlier impairment review. We have the option to first assess qualitative factors in determining whether it is more likely than not that an indefinite-lived intangible asset is impaired. If we elect not to use this option, or we determine that it is more likely than not that the asset is impaired, we perform a quantitative impairment analysis in which we estimate the fair value of the indefinite-lived intangible asset and compare that amount to its carrying value. In this analysis, we estimate the fair value by using the relief-from-royalty method, in which we make assumptions about future conditions impacting the fair value of our indefinite-lived intangible assets, including projected growth rates, cost of capital, effective tax rates, and royalty rates. Impairment, if any, is based on the excess of the carrying value over the fair value of these assets.
Definite-lived intangible assets
Acquisition-related definite-lived intangible assets are amortized on an economic-benefit basis according to the useful lives of the assets, or on a straight-line basis if a pattern of economic benefits cannot be reliably determined. Capitalized software and capitalized software licenses are presented on the consolidated balance sheets as intangible assets. Capitalized software licenses are amortized on a straight-line basis over the lesser of the term of the license or the estimated useful life of the software. Capitalized software is amortized on a straight-line basis over its estimated useful life.
Reviews are regularly performed to determine whether facts or circumstances exist that indicate that the carrying values of our definite-lived intangible assets are impaired. If we determine that such facts or circumstances exist, we estimate the recoverability of these assets by comparing the projected undiscounted net cash flows associated with these assets to their respective carrying values. If the sum of the projected undiscounted net cash flows is less than the carrying value of an asset, the impairment charge is measured as the excess of the carrying value over the fair value of that asset. We determine fair value by using the appropriate income approach valuation methodology, depending on the nature of the definite-lived intangible asset.
Refer to Note 11: Goodwill and Other Intangible Assets, Net for additional information related to our goodwill and other intangible assets.
Income Taxes
We estimate our provision for (or benefit from) income taxes in each of the jurisdictions in which we operate. The provision for (or benefit from) income taxes includes both our current and deferred tax expense. Our deferred tax expense is measured using the asset and liability method, under which deferred income taxes are recognized to reflect the future tax consequences of differences between the tax bases of assets and liabilities and their financial reporting amounts at each balance sheet date, based on enacted tax laws and statutory tax rates applicable to the periods in which the differences are expected to reverse or settle. The effect on deferred tax assets and liabilities of a change in statutory tax rates is recognized in the consolidated statements of operations as an adjustment to income tax expense in the period that includes the enactment date.
In measuring our deferred tax assets, we consider all available evidence, both positive and negative, to determine whether, based on the weight of that evidence, a valuation allowance is needed for all or some portion of the deferred tax assets. If it is determined that it is more likely than not that future tax benefits associated with a deferred tax asset will not be realized, a valuation allowance is provided. As a result, we maintain valuation allowances against the deferred tax assets in jurisdictions that have incurred losses in recent periods and in which it is more likely than not that such deferred tax assets will not be utilized in the foreseeable future.
In accordance with FASB ASC Topic 740, Income Taxes, we record uncertain tax positions on the basis of a two-step process. First, we determine whether it is more likely than not that the tax positions will be sustained based on the technical merits of the position. Second, for those tax positions that meet the more-likely-than-not recognition threshold, we recognize the largest amount of tax benefit that is greater than 50 percent likely to be realized upon ultimate settlement with the relevant tax authority. Significant judgment is required in evaluating whether our tax positions meet this two-step process. The more-likely-than-not recognition threshold must be met in each reporting period to support continued recognition of any tax benefits claimed, both in the current year, as well as any year which remains open for review by the relevant tax authority at the balance sheet date. Penalties and interest related to uncertain tax positions may be classified as either income taxes or another expense line item in the consolidated statements of operations. We classify interest and penalties related to uncertain tax positions within the provision for (or benefit from) income taxes line of the consolidated statements of operations.
Refer to Note 7: Income Taxes for additional information related to our income taxes.
Pension and Other Post-Retirement Benefits
We sponsor various pension and other post-retirement benefit plans covering our current and former employees in several countries. The funded status of pension and other post-retirement benefit plans, recognized on our consolidated balance sheets as an asset, current liability, or long-term liability, is measured as the difference between the fair value of plan assets and the benefit obligation at the measurement date.
Benefit obligations represent the actuarial present value of all benefits attributed by the pension formula as of the measurement date to employee service rendered before that date. The value of benefit obligations takes into consideration various financial assumptions, including assumed discount rate and the rate of increase in healthcare costs, and demographic assumptions, including compensation rate increases, retirement patterns, employee turnover rates, and mortality rates. We review these assumptions annually.
Contributions made to pension and other post-retirement benefit plans are presented as a component of operating cash flows within the consolidated statements of cash flows. We present the service cost component of net periodic benefit cost in the cost of revenue, research and development ("R&D"), and SG&A expense line items, and we present the non–service components of net periodic benefit cost in other, net.
Refer to Note 13: Pension and Other Post-Retirement Benefits for additional information related to our pension and other post-retirement benefit plans.
Inventories
Inventories are stated at the lower of cost or estimated net realizable value. The cost of raw materials, work-in-process, and finished goods is determined based on a first-in, first-out basis and includes material, labor, and applicable manufacturing overhead. We conduct quarterly inventory reviews for salability and obsolescence, and inventories considered unlikely to be sold are adjusted to net realizable value.
Refer to Note 9: Inventories for additional information related to our inventory balances.
Property, Plant and Equipment and Other Capitalized Costs
PP&E is stated at cost, and in the case of plant and equipment, is depreciated on a straight-line basis over its estimated economic useful life. The depreciable lives of plant and equipment are as follows:
| | | | | |
| Buildings and improvements | 2 – 40 years |
| Machinery and equipment | 2 – 15 years |
Leasehold improvements are amortized using the straight-line method over the shorter of the remaining lease term or the estimated economic useful lives of the improvements. Amortization of leasehold improvements is included in depreciation expense.
Assets held under finance leases are recognized at the lower of the present value of the minimum lease payments or the fair value of the leased asset at the inception of the lease. Depreciation expense associated with finance leases is computed using the straight-line method over the shorter of the estimated useful lives of the assets or the period of the related lease, unless ownership is transferred by the end of the lease or there is a bargain purchase option, in which case the asset is depreciated, normally on a straight-line basis, over the useful life that would be assigned if the asset were owned.
Expenditures for maintenance and repairs are charged to expense as incurred, whereas major improvements that increase asset values and extend useful lives are capitalized.
Refer to Note 10: Property, Plant and Equipment, Net for additional information related to our PP&E balances.
Leases
We account for leases in accordance with the guidance in FASB ASC Topic 842, Leases. We enter into lease agreements for many of our facilities around the world. We occupy leased facilities with initial terms ranging up to 20 years. Our lease agreements frequently include options to renew for additional periods or to purchase the leased assets and generally require that we pay taxes, insurance, and maintenance costs.
Depending on the specific terms of the leases, our obligations are in two forms: finance leases and operating leases. For both forms of leases, we recognize a related lease liability and right-of-use asset on our consolidated balance sheets. Our lease liabilities are initially measured at the present value of the lease payments not yet paid, discounted using our incremental borrowing rate for a period that is comparable to the remaining lease term. We use our incremental borrowing rate, adjusted for collateralization, because the discount rates implicit in our leases are generally not readily determinable.
For finance leases, the consolidated statements of operations include separate recognition of interest on the lease liability and amortization of the right-of-use asset. For operating leases, the consolidated statements of operations include a single lease cost, calculated so that the cost of the lease is allocated over the lease term on a straight-line basis.
Net cash flows from operating activities include (1) interest on finance lease liabilities and (2) payments arising from operating leases. Net cash flows from financing activities include repayments of the principal portion of finance lease liabilities.
We also lease certain vehicles and equipment, which generally have a term of one year or less. We have elected to account for leases with a term of one year or less (short-term leases) using a method similar to the operating lease model under FASB ASC Topic 840, Leases (i.e., they are not recorded on the consolidated balance sheets) as permitted by FASB ASC Topic 842.
Refer to Note 17: Leases for additional information related to amounts recognized in the consolidated financial statements related to our leases.
Foreign Currency
We derive a significant portion of our net revenue from markets outside of the U.S. For financial reporting purposes, the functional currency of almost all of our subsidiaries is the USD because of the significant influence of the USD on our operations. In certain instances, we enter into transactions that are denominated in a currency other than the USD. At the date that such transaction is recognized, each asset, liability, revenue, expense, gain, or loss arising from the transaction is measured and recorded in USD using the exchange rate in effect at that date. At each balance sheet date, recorded monetary balances denominated in a currency other than USD are adjusted to USD using the exchange rate at the balance sheet date, with gains or losses recognized in other, net in the consolidated statements of operations. The impact of currency translation adjustment for subsidiaries with a functional currency other than USD is not material.
Cash and Cash Equivalents
Cash comprises cash on hand. Cash equivalents are short-term, highly liquid investments that are readily convertible to known amounts of cash, are subject to an insignificant risk of change in value, and have original maturities of three months or less.
Recently issued accounting standards:
There have been no recently issued accounting standards that have been adopted in the current period or will be adopted in future periods that have had or are expected to have a material impact on our consolidated financial position or results of operations.
3. Revenue Recognition
We recognize revenue to depict the transfer of promised goods to customers in an amount that reflects the consideration to which we expect to be entitled in exchange for those goods. The vast majority of our revenue is derived from the sale of tangible products whereby control of the product transfers to the customer at a point in time, we recognize revenue at a point in time, and the underlying contract is a purchase order that establishes a firm purchase commitment for a short period of time. Our standard terms of sale provide our customers with a warranty against faulty workmanship and the use of defective materials. We do not offer separately priced extended warranty or product maintenance contracts. Refer to Note 2: Significant Accounting Policies for additional information.
We have elected to apply certain practical expedients that allow for more limited disclosures than those that would otherwise be required by FASB ASC Topic 606, including (1) the disclosure of transaction price allocated to the remaining unsatisfied performance obligations at the end of the period and (2) an explanation of when we expect to recognize the related revenue.
We believe that our end markets are the categories that best depict how the nature, amount, timing, and uncertainty of revenue and cash flows are affected by economic factors. The following table presents net revenue disaggregated by segment and end market for the years ended December 31, 2022, 2021, and 2020:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Performance Sensing | | Sensing Solutions | | Total |
| For the year ended December 31, | | For the year ended December 31, | | For the year ended December 31, |
| 2022 | | 2021 | | 2020 | | 2022 | | 2021 | | 2020 | | 2022 | | 2021 | | 2020 |
| Net revenue: | | | | | | | | | | | | | | | | | |
| Automotive | $ | 2,071,879 | | | $ | 2,018,056 | | | $ | 1,715,749 | | | $ | 35,772 | | | $ | 44,351 | | | $ | 35,621 | | | $ | 2,107,651 | | | $ | 2,062,407 | | | $ | 1,751,370 | |
HVOR (1) | 904,877 | | | 829,852 | | | 508,061 | | | — | | | — | | | — | | | 904,877 | | | 829,852 | | | 508,061 | |
| Industrial | — | | | — | | | — | | | 525,443 | | | 413,885 | | | 336,506 | | | 525,443 | | | 413,885 | | | 336,506 | |
Appliance and HVAC (2) | — | | | — | | | — | | | 218,115 | | | 243,938 | | | 189,782 | | | 218,115 | | | 243,938 | | | 189,782 | |
| Aerospace | — | | | — | | | — | | | 152,880 | | | 134,735 | | | 136,167 | | | 152,880 | | | 134,735 | | | 136,167 | |
| Other | — | | | — | | | — | | | 120,296 | | | 135,989 | | | 123,692 | | | 120,296 | | | 135,989 | | | 123,692 | |
| Net revenue | $ | 2,976,756 | | | $ | 2,847,908 | | | $ | 2,223,810 | | | $ | 1,052,506 | | | $ | 972,898 | | | $ | 821,768 | | | $ | 4,029,262 | | | $ | 3,820,806 | | | $ | 3,045,578 | |
__________________________
(1) Heavy vehicle and off-road
(2) Heating, ventilation and air conditioning
In addition, refer to Note 20: Segment Reporting for a presentation of net revenue disaggregated by product category and geographic region.
Contract Assets and Liabilities
Excluding trade receivables, which are presented on our consolidated balance sheets, our contract assets are not material. Contract liabilities, whereby we receive payment from customers related to our promise to satisfy performance obligations in the future, are not material.
4. Share-Based Payment Plans
At our Annual General Meeting held on May 27, 2021, our shareholders approved the Sensata Technologies Holding plc 2021 Equity Incentive Plan (the "2021 Equity Plan"), which replaced the Sensata Technologies Holding plc First Amended and Restated 2010 Equity Incentive Plan (the "2010 Equity Plan"). The 2021 Equity Plan is substantially similar to the 2010 Equity Plan with some updates based on changes in law and current practices. The purpose of the 2021 Equity Plan is to promote the long-term growth, profitability, and interests of the Company and its shareholders by aiding us in attracting and retaining employees, officers, consultants, advisors, and non-employee directors capable of assuring our future success. All awards granted subsequent to this approval were made under the 2021 Equity Plan. The 2010 Equity Plan was terminated as to the grant of any additional awards, but prior awards remain outstanding in accordance with their terms. As of December 31, 2022, there were 5.0 million ordinary shares available for grants of awards under the 2021 Equity Plan.
Refer to Note 2: Significant Accounting Policies for additional information related to our share-based compensation accounting policies.
Share-Based Compensation Awards
We grant restricted stock unit ("RSU") and performance-based restricted stock unit ("PRSU") awards. We no longer grant stock option awards, with the last grants of option awards made in the year ended December 31, 2019. Throughout this Annual Report on Form 10-K, RSU and PRSU awards are often referred to collectively as "restricted securities." Share-based compensation awards granted prior to May 27, 2021 were made under the 2010 Equity Plan, with all subsequent awards granted under the 2021 Equity Plan.
For option and RSU awards, vesting is typically subject only to service conditions. For PRSU awards, vesting is also subject to service conditions, however the number of awarded units that ultimately vest also depends on the attainment of certain predefined performance criteria. Our awards include continued vesting provisions for retirement-eligible employees.
Options
A summary of stock option activity for the years ended December 31, 2022, 2021, and 2020 is presented in the table below (amounts have been calculated based on unrounded shares, accordingly, certain amounts may not appear to recalculate due to the effect of rounding):
| | | | | | | | | | | | | | | | | | | | | | | |
| Number of Options (thousands) | | Weighted-Average
Exercise Price Per Option | | Weighted-Average
Remaining
Contractual Term
(years) | | Aggregate
Intrinsic Value |
| Balance as of December 31, 2019 | 3,464 | | | $ | 41.19 | | | 5.0 | | $ | 44,696 | |
| | | | | | | |
| Forfeited or expired | (155) | | | $ | 48.30 | | | | | |
| Exercised | (452) | | | $ | 34.22 | | | | | $ | 5,117 | |
| Balance as of December 31, 2020 | 2,857 | | | $ | 41.90 | | | 4.4 | | $ | 31,955 | |
| | | | | | | |
| Forfeited or expired | (15) | | | $ | 49.93 | | | | | |
| Exercised | (707) | | | $ | 38.07 | | | | | $ | 14,264 | |
| Balance as of December 31, 2021 | 2,135 | | | $ | 43.11 | | | 3.9 | | $ | 39,660 | |
| | | | | | | |
| Forfeited or expired | (36) | | | $ | 50.45 | | | | | |
| Exercised | (572) | | | $ | 38.80 | | | | | $ | 8,265 | |
| Balance as of December 31, 2022 | 1,527 | | | $ | 44.55 | | | 3.3 | | $ | 1,802 | |
| Options vested and exercisable as of December 31, 2022 | 1,460 | | | $ | 44.44 | | | 3.2 | | $ | 1,802 | |
| Vested and expected to vest as of December 31, 2022 | 1,523 | | | $ | 44.55 | | | 3.3 | | $ | 1,802 | |
A summary of the status of our unvested options as of December 31, 2022 and of the changes during the year then ended is presented in the table below (amounts have been calculated based on unrounded shares, accordingly, certain amounts may not appear to recalculate due to the effect of rounding):
| | | | | | | | | | | |
| | Number of Options (thousands) | | Weighted-Average Grant-Date Fair Value |
| Balance as of December 31, 2021 | 194 | | | $ | 18.40 | |
| | | |
| Vested during the year | (119) | | | $ | 12.01 | |
| Forfeited during the year | (4) | | | $ | 13.68 | |
| Balance as of December 31, 2022 | 71 | | | $ | 29.46 | |
The fair value of stock options that vested during the years ended December 31, 2022, 2021, and 2020 was $1.4 million, $2.5 million, and $4.4 million, respectively.
Option awards granted to employees generally vest 25% per year over four years from the grant date. We recognize compensation expense for options on a straight-line basis over the requisite service period, which is generally the same as the vesting period. The options generally expire ten years from the date of grant.
For options granted prior to April 2019, except as otherwise provided in specific option award agreements, if a participant ceases to be employed by us, options not yet vested generally expire and are forfeited at the termination date, and options that are fully vested generally expire 90 days after termination of the participant’s employment. Exclusions to the general policy for terminated employees include termination for cause (in which case the options expire on the participant’s termination date) and termination due to death or disability (in which case any unvested options shall immediately vest and expire one year after the participant’s termination date). For options granted in or after April 2019, the same terms apply, except that in the event of termination due to a qualified retirement, options not yet vested will continue to vest and will expire ten years from the grant date.
We did not grant any options in the years ended December 31, 2022, 2021 or 2020.
Restricted Securities
Starting in April 2020, we grant RSU awards that vest ratably over three years and PRSU awards that cliff vest three years after the grant date. Previously, we granted RSU and PRSU awards each of which cliff vested three years after the grant date.
In the event of a qualifying termination, any unvested restricted securities that would have otherwise vested within the next six months vest in full on the termination date, and in the event of termination by reason of a covered retirement, any unvested restricted securities remain outstanding on the termination date and subject to continued vesting. For PRSU awards, the number of units that ultimately vest depends on the extent to which certain performance criteria, described in the table below, are met.
A summary of restricted securities granted in the years ended December 31, 2022, 2021, and 2020 is presented below:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | Percentage Range of Units That May Vest (1) |
| | | | | | | 0.0% to 172.5% | | 0.0% to 200.0% |
| (Awards in thousands) | RSU Awards Granted | | Weighted-Average
Grant-Date
Fair Value | | | | | | PRSU Awards Granted | | Weighted-Average
Grant-Date
Fair Value | | PRSU Awards Granted | | Weighted-Average
Grant-Date
Fair Value |
| 2022 | 618 | | | $ | 49.68 | | | | | | | 231 | | | $ | 50.12 | | | 194 | | | $ | 48.33 | |
| 2021 | 413 | | | $ | 58.29 | | | | | | | 170 | | | $ | 58.56 | | | 76 | | | $ | 57.04 | |
| 2020 | 806 | | | $ | 29.06 | | | | | | | 401 | | | $ | 28.22 | | | — | | | $ | — | |
__________________________
(1) Represents the percentage range of PRSU award units granted that may vest according to the terms of the awards. The amounts presented within this table do not reflect our current assessment of the probable outcome of vesting based on the achievement or expected achievement of performance conditions.
Compensation expense for the year ended December 31, 2022 reflects our estimate of the probable outcome of the performance conditions associated with the PRSU awards granted in the years ended December 31, 2022, 2021, and 2020.
A summary of activity related to outstanding restricted securities for the years ended December 31, 2022, 2021, and 2020 is presented in the table below (amounts have been calculated based on unrounded shares, accordingly, certain amounts may not appear to recalculate due to the effect of rounding):
| | | | | | | | | | | |
| Restricted Securities (thousands) | | Weighted-Average
Grant-Date
Fair Value |
| Balance as of December 31, 2019 | 1,105 | | | $ | 47.51 | |
| Granted | 1,207 | | | $ | 28.78 | |
| Forfeited | (284) | | | $ | 37.89 | |
| Vested | (349) | | | $ | 43.54 | |
| Balance as of December 31, 2020 | 1,679 | | | $ | 36.49 | |
| Granted | 659 | | | $ | 58.21 | |
| Forfeited | (348) | | | $ | 41.00 | |
| Vested | (469) | | | $ | 38.36 | |
| Balance as of December 31, 2021 | 1,521 | | | $ | 43.31 | |
| Granted | 1,043 | | | $ | 49.53 | |
| Forfeited | (287) | | | $ | 46.96 | |
| Vested | (522) | | | $ | 42.40 | |
| Balance as of December 31, 2022 | 1,755 | | | $ | 46.68 | |
Aggregate intrinsic value information for restricted securities as of December 31, 2022, 2021, and 2020 is presented below:
| | | | | | | | | | | | | | | | | |
| As of December 31, |
| 2022 | | 2021 | | 2020 |
| Outstanding | $ | 70,941 | | | $ | 93,830 | | | $ | 88,534 | |
| Expected to vest | $ | 55,235 | | | $ | 69,798 | | | $ | 58,675 | |
The weighted-average remaining periods over which the restrictions will lapse as of December 31, 2022, 2021, and 2020 are as follows:
| | | | | | | | | | | | | | | | | |
| As of December 31, |
| 2022 | | 2021 | | 2020 |
| Outstanding | 1.2 | | 1.0 | | 1.1 |
| Expected to vest | 1.2 | | 1.0 | | 1.1 |
The expected to vest restricted securities are calculated based on the application of a forfeiture rate assumption to all outstanding restricted securities as well as our assessment of the probability of meeting the required performance conditions that pertain to the PRSU awards.
Share-Based Compensation Expense
The table below presents non-cash compensation expense related to our equity awards, which is recognized within SG&A expense in the consolidated statements of operations, for the years ended December 31, 2022, 2021, and 2020:
| | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| 2022 | | 2021 | | 2020 |
| Stock options | $ | 632 | | | $ | 1,389 | | | $ | 2,868 | |
| Restricted securities | 31,159 | | | 24,274 | | | 16,257 | |
| Share-based compensation expense | $ | 31,791 | | | $ | 25,663 | | | $ | 19,125 | |
In the years ended December 31, 2022, 2021, and 2020, we recognized $3.8 million, $3.2 million, and $2.5 million, respectively, of income tax benefit associated with share-based compensation expense.
The table below presents unrecognized compensation expense at December 31, 2022 for each class of award and the remaining expected term for this expense to be recognized:
| | | | | | | | | | | |
| Unrecognized
Compensation Expense | | Expected
Recognition (years) |
| Options | $ | 1,687 | | | 0.1 |
| Restricted securities | 36,539 | | | 1.3 |
| Total unrecognized compensation expense | $ | 38,226 | | | |
5. Restructuring and Other Charges, Net
The following table presents the components of restructuring and other charges, net for the years ended December 31, 2022, 2021, and 2020:
| | | | | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| | 2022 | | 2021 | | 2020 |
| Q2 2020 Global Restructure Program, net | | $ | — | | | $ | 7,120 | | | $ | 24,458 | |
| Other restructuring charges | | | | | | |
| Severance costs, net | | 19,112 | | | 4,504 | | | 3,042 | |
| Facility and other exit costs | | 5,464 | | | 2,433 | | | 1,323 | |
Gain on sale of Qinex Business (1) | | (135,112) | | | — | | | — | |
Acquisition-related compensation arrangements (2) | | 48,864 | | | — | | | — | |
Other (3) | | (5,028) | | | 885 | | | 4,271 | |
| Restructuring and other charges, net | | $ | (66,700) | | | $ | 14,942 | | | $ | 33,094 | |
__________________________
(1) Refer to Note 21: Acquisitions and Divestitures for additional information on the sale of various assets and liabilities comprising our semiconductor test and thermal business (collectively, the "Qinex Business").
(2) Refer to Note 21: Acquisitions and Divestitures for additional information regarding our acquisition-related compensation arrangements.
(3) Represents charges that are not included in one of the other classifications. The year ended December 31, 2022 primarily includes transaction-related charges to sell the Qinex Business, partially offset by gains related to changes in the fair value of acquisition-related contingent consideration amounts. Refer to Note 21: Acquisitions and Divestitures for additional information. In the year ended December 31, 2020, we settled intellectual property litigation brought against August Cayman Company, Inc. ("Schrader”) by Wasica Finance GmbH ("Wasica") and released $11.7 million of the related liability, which is presented in restructuring and other charges, net. This release largely offset a charge of $12.1 million resulting from a prejudgment interest-related award granted by the court on behalf of Wasica in fiscal year 2020.
On June 30, 2020, in response to the potential long-term impact of the global financial and health crisis caused by the COVID-19 pandemic on our business, we committed to a plan to reorganize our business (the “Q2 2020 Global Restructure Program”) consisting of voluntary and involuntary reductions-in-force and certain site closures. The Q2 2020 Global Restructure Program was commenced in order to align our cost structure to the then anticipated future demand outlook. We have completed all actions contemplated thereunder, with approximately 840 positions impacted. We recognized total cumulative costs of $33.2 million under the Q2 2020 Global Restructure Program, of which $28.4 million related to severance charges and $4.8 million related to facility and other exit costs.
Charges recognized in the years ended December 31, 2021 and 2020 resulting from the Q2 2020 Global Restructure Program are presented by impacted segment below. However, as discussed in Note 20: Segment Reporting, restructuring and other charges, net are excluded from segment operating income. There were no charges recognized in the year ended December 31, 2022.
| | | | | | | | | | | | | |
| | | For the year ended December 31, |
| | | 2021 | | 2020 |
Performance Sensing (1) | | | $ | 2,584 | | | $ | 9,073 | |
Sensing Solutions (2) | | | 5,898 | | | 6,445 | |
| Corporate and other | | | (1,362) | | | 8,940 | |
| Q2 2020 Global Restructure Program, net | | | $ | 7,120 | | | $ | 24,458 | |
__________________________
(1) Approximately $1.2 million of these charges for the year ended December 31, 2021 relate to site closures. There were no site closures in the Performance Sensing reportable segment in the year ended December 31, 2020.
(2) Approximately $3.8 million and $0.6 million of these charges for the years ended December 31, 2021 and 2020, respectively, relate to site closures.
The following table presents a rollforward of the severance portion of our restructuring obligations for the years ended December 31, 2022 and 2021:
| | | | | | | | | | | | | | | | | | | | | | | |
| | Q2 Plan | | Other | | Total | | | |
| Balance as of December 31, 2020 | | $ | 10,842 | | | $ | 4,037 | | | $ | 14,879 | | | | |
| Charges, net of reversals | | 2,181 | | | 4,504 | | | 6,685 | | | | |
| Payments | | (8,993) | | | (5,145) | | | (14,138) | | | | |
| Foreign currency remeasurement | | (177) | | | (16) | | | (193) | | | | |
| Balance as of December 31, 2021 | | 3,853 | | | 3,380 | | | 7,233 | | | | |
| Charges, net of reversals | | (660) | | | 19,772 | | | 19,112 | | | | |
| Payments | | (3,155) | | | (14,479) | | | (17,634) | | | | |
| Foreign currency remeasurement | | (16) | | | (78) | | | (94) | | | | |
| Balance as of December 31, 2022 | | $ | 22 | | | $ | 8,595 | | | $ | 8,617 | | | | |
The severance portion of our restructuring obligations for each period presented was entirely recorded in accrued expenses and other current liabilities on our consolidated balance sheets. Refer to Note 12: Accrued Expenses and Other Current Liabilities.
6. Other, Net
The following table presents the components of other, net for the years ended December 31, 2022, 2021, and 2020:
| | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| | 2022 | | 2021 | | 2020 |
Currency remeasurement (loss)/gain on net monetary assets (1) | $ | (18,155) | | | $ | 3,449 | | | $ | 10,833 | |
Gain/(loss) on foreign currency forward contracts (2) | 4,324 | | | (7,553) | | | (6,762) | |
(Loss)/gain on commodity forward contracts (2) | (3,350) | | | (2,967) | | | 10,027 | |
Loss on debt financing (3) | (5,468) | | | (30,066) | | | — | |
Mark-to-market loss on investments, net (4) | (75,569) | | | — | | | — | |
| Net periodic benefit cost, excluding service cost | (5,125) | | | (7,528) | | | (9,980) | |
| Other | 8,725 | | | 4,633 | | | (4,457) | |
| Other, net | $ | (94,618) | | | $ | (40,032) | | | $ | (339) | |
__________________________
(1) Relates to the remeasurement of non-USD denominated net monetary assets and liabilities into USD. Refer to Note 2: Significant Accounting Policies — Foreign Currency for additional information.
(2) Relates to changes in the fair value of derivative financial instruments not designated as cash flow hedges. Refer to Note 19: Derivative Instruments and Hedging Activities for additional information related to gains and losses on our commodity and foreign currency forward contracts.
(3) Refer to Note 14: Debt for additional information related to our debt financing transactions.
(4) Primarily reflects a mark-to-market loss on our investment in Quanergy Systems, Inc. ("Quanergy"). Refer to Note 18: Fair Value Measures for additional information.
7. Income Taxes
Refer to Note 2: Significant Accounting Policies for detailed discussion of the accounting policies related to income taxes.
Income before taxes
Income before taxes for the years ended December 31, 2022, 2021, and 2020 was categorized by jurisdiction as follows:
| | | | | | | | | | | | | | | | | |
| U.S. | | Non-U.S. | | Total |
| 2022 | $ | (66,899) | | | $ | 463,601 | | | $ | 396,702 | |
| 2021 | $ | 39,947 | | | $ | 373,970 | | | $ | 413,917 | |
| 2020 | $ | (80,856) | | | $ | 246,497 | | | $ | 165,641 | |
Provision for income taxes
Provision for income taxes for the years ended December 31, 2022, 2021, and 2020 comprised provisions for (or benefits from) income tax by jurisdiction as follows:
| | | | | | | | | | | | | | | | | | | | | | | |
| U.S. Federal | | Non-U.S. | | U.S. State | | Total |
| 2022 | | | | | | | |
| Current | $ | 2,111 | | | $ | 81,912 | | | $ | 2,775 | | | $ | 86,798 | |
| Deferred | 3,699 | | | (4,865) | | | 385 | | | (781) | |
| Total | $ | 5,810 | | | $ | 77,047 | | | $ | 3,160 | | | $ | 86,017 | |
| 2021 | | | | | | | |
| Current | $ | 1,005 | | | $ | 54,401 | | | $ | 201 | | | $ | 55,607 | |
| Deferred | 6,261 | | | (12,747) | | | 1,216 | | | (5,270) | |
| Total | $ | 7,266 | | | $ | 41,654 | | | $ | 1,417 | | | $ | 50,337 | |
| 2020 | | | | | | | |
| Current | $ | (2,624) | | | $ | 48,572 | | | $ | 307 | | | $ | 46,255 | |
| Deferred | (14,776) | | | (34,252) | | | 4,128 | | | (44,900) | |
| Total | $ | (17,400) | | | $ | 14,320 | | | $ | 4,435 | | | $ | 1,355 | |
Effective tax rate reconciliation
The principal reconciling items from income tax computed at the U.S. statutory tax rate for the years ended December 31, 2022, 2021, and 2020 were as follows:
| | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| 2022 | | 2021 | | 2020 |
| Tax computed at statutory rate of 21% | $ | 83,307 | | | $ | 86,923 | | | $ | 34,785 | |
| Foreign tax rate differential | (44,327) | | | (30,485) | | | (21,994) | |
| Valuation allowances | 15,679 | | | 20,512 | | | 8,869 | |
| Withholding taxes not creditable | 12,337 | | | 13,259 | | | 12,198 | |
| Research and development incentives | (10,834) | | | (11,067) | | | (7,408) | |
| Unrealized foreign currency exchange losses/gains, net | 9,306 | | | (6,137) | | | 2,650 | |
| Dispositions and capital restructurings | 4,496 | | | — | | | (54,188) | |
| Change in tax laws or rates | 2,611 | | | (7,070) | | | 11,229 | |
| U.S. state taxes, net of federal benefit | 2,496 | | | 1,119 | | | 3,504 | |
| Reserve for tax exposure | 1,315 | | | (16,330) | | | (171) | |
| | | | | |
| Nontaxable items and other | 9,631 | | | (387) | | | 11,881 | |
| Provision for income taxes | $ | 86,017 | | | $ | 50,337 | | | $ | 1,355 | |
Foreign tax rate differential
We operate in locations outside the U.S., including Belgium, Bulgaria, China, Malaysia, Malta, the Netherlands, South Korea, and the U.K., that historically have had statutory tax rates different than the U.S. statutory tax rate. This can result in a foreign tax rate differential that may reflect a tax benefit or detriment. This foreign tax rate differential can change from year to year based upon the jurisdictional mix of earnings and changes in current and future enacted tax rates.
Certain of our subsidiaries are currently eligible, or have been eligible, for tax exemptions or reduced tax rates in their respective jurisdictions. From 2020 through 2022, a subsidiary in Changzhou, China was eligible for a reduced corporate income tax rate of 15%. The impact on current tax expense of the tax holidays and exemptions is included in the foreign tax rate differential disclosure, reconciling the statutory rate to our effective rate. The remeasurement of the deferred tax assets and liabilities is included in the change in tax laws or rates caption.
Withholding taxes not creditable
Withholding taxes may apply to intercompany interest, royalty, management fees, and certain payments to third parties. Such taxes are deducted if they cannot be credited against the recipient’s tax liability in its country of residence. Additional consideration has been given to the withholding taxes associated with unremitted earnings and the recipient's ability to obtain a tax credit for such taxes. Earnings are not considered to be indefinitely reinvested in the jurisdictions in which they were earned. In certain jurisdictions we recognize a deferred tax liability on withholding and other taxes on intercompany payments including dividends.
Research and development incentives
Certain income of our U.K. subsidiaries is eligible for lower tax rates under the "patent box" regime, resulting in certain of our intellectual property income being taxed at a rate lower than the U.K. statutory tax rate. Qualified investments are eligible for a bonus deduction under China’s R&D super deduction regime. In the U.S., we benefit from R&D credit incentives.
Dispositions and capital restructuring
The increase of $4.5 million in our effective tax rate for the year ended December 31, 2022 was due to the tax accounting impacts of the divestiture of the Qinex Business, partially offset by separate intangible property transfers. For the year ended December 31, 2020, the decrease in our effective tax rate was due to a net $54.2 million deferred tax benefit in the fourth quarter of 2020 related to intangible property transfers.
Deferred income tax assets and liabilities
The primary components of deferred income tax assets and liabilities as of December 31, 2022 and 2021 were as follows:
| | | | | | | | | | | |
| As of December 31, |
| 2022 | | 2021 |
| Deferred tax assets: | | | |
| Net operating loss, interest expense, and other carryforwards | $ | 379,036 | | | $ | 393,724 | |
| Prepaid and accrued expenses | 48,540 | | | 55,794 | |
| Intangible assets and goodwill | 67,330 | | | 87,830 | |
| Pension liability and other | 9,801 | | | 11,278 | |
| Property, plant and equipment | 15,042 | | | 16,290 | |
| Share-based compensation | 7,862 | | | 8,421 | |
| Inventories and related reserves | 17,329 | | | 10,767 | |
| Unrealized exchange loss | 17,645 | | | 805 | |
| | | |
| Total deferred tax assets | 562,585 | | | 584,909 | |
| Valuation allowance | (249,525) | | | (225,919) | |
| Net deferred tax asset | 313,060 | | | 358,990 | |
| Deferred tax liabilities: | | | |
| Intangible assets and goodwill | (489,169) | | | (493,787) | |
| Tax on undistributed earnings of subsidiaries | (60,535) | | | (68,384) | |
| Operating lease right of use assets | (6,803) | | | (9,360) | |
| Property, plant and equipment | (14,309) | | | (14,506) | |
| Unrealized exchange gain | (6,298) | | | (7,198) | |
| Total deferred tax liabilities | (577,114) | | | (593,235) | |
| Net deferred tax liability | $ | (264,054) | | | $ | (234,245) | |
Valuation allowance and net operating loss carryforwards
We recognize deferred tax assets to the extent that we believe these assets are more likely than not to be realized. In measuring our deferred tax assets, we consider all available evidence, both positive and negative, to determine whether, based on the weight of that evidence, a valuation allowance is needed for all or some portion of the deferred tax assets. Significant judgment is required in considering the relative impact of the negative and positive evidence, and weight given to each category of evidence is commensurate with the extent to which it can be objectively verified. The more negative evidence that exists, the more positive evidence is necessary, and the more difficult it is to support a conclusion that a valuation allowance is not needed. Additionally, we utilize the "more likely than not" criteria established in FASB ASC Topic 740 to determine whether the future tax benefit from the deferred tax assets should be recognized. As a result, we have established valuation allowances on the deferred tax assets in jurisdictions that have incurred net operating losses and in which it is more likely than not that such losses will not be utilized in the foreseeable future.
As of each reporting date, we consider new evidence, both positive and negative, that could impact our view with regard to future realization of deferred tax assets. Our interest expense carryforwards in certain jurisdictions are subject to limitations. We consider these limitations in our assessment of positive and negative evidence. Our assessment of these limitations has resulted in the conclusion that a portion of our interest carryforwards are subject to a valuation allowance.
For tax purposes, certain goodwill and indefinite-lived intangible assets are generally amortizable over 6 to 15 years. For book purposes, goodwill and indefinite-lived intangible assets are not amortized but are tested for impairment annually. The tax amortization of goodwill and indefinite-lived intangible assets will result in a taxable temporary difference, which will not reverse unless the related book goodwill or indefinite-lived intangible asset is impaired or written off. This liability may not be used to support deductible temporary differences, such as net operating loss carryforwards, which may expire within a definite period.
The total valuation allowance increased $23.6 million and $23.8 million in the years ended December 31, 2022 and 2021, respectively. As a result of changes in interest limitation rules in the Netherlands that became effective in 2021, we recorded a valuation allowance against our interest carryforwards in this jurisdiction in the year ended December 31, 2021. Subsequently reported tax benefits relating to the valuation allowance for deferred tax assets as of December 31, 2022 will be allocated to income tax benefit recognized in the consolidated statements of operations.
As of December 31, 2022, we have U.S. federal net operating loss carryforwards of $828.0 million, of which $246.5 million will expire from 2028 to 2037, and $581.5 million do not expire. We have state net operating loss carryforwards with limited and unlimited lives. Our limited life state net operating losses will expire beginning in 2023. As of December 31, 2022, we have suspended interest expense carryforwards of $418.9 million, which have an unlimited life. We also have net operating loss carryforwards in foreign jurisdictions of $576.5 million, which will begin to expire in 2023.
Unrecognized tax benefits
A reconciliation of the amount of unrecognized tax benefits is as follows:
| | | | | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| | 2022 | | 2021 | | 2020 |
| Balance at beginning of year | | $ | 223,791 | | | $ | 201,410 | | | $ | 117,591 | |
| Increases related to current year tax positions | | 4,997 | | | 3,574 | | | 46,329 | |
| Increases related to prior year tax positions | | 1,312 | | | 37,869 | | | 43,082 | |
| (Decreases)/increases related to business combinations | | (883) | | | 1,370 | | | — | |
| Decreases related to settlements with tax authorities | | — | | | (11,015) | | | (5,183) | |
| Decreases related to prior year tax positions | | (3,097) | | | (8,363) | | | (1,294) | |
| Decreases related to lapse of applicable statute of limitations | | (743) | | | (483) | | | (452) | |
| Changes related to foreign currency exchange rates | | (789) | | | (571) | | | 1,337 | |
| Balance at end of year | | $ | 224,588 | | | $ | 223,791 | | | $ | 201,410 | |
We recognize interest and penalties related to unrecognized tax benefits in the consolidated statements of operations and the consolidated balance sheets. The following table presents the expense/(income) related to such interest and penalties recognized in the consolidated statements of operations during the years ended December 31, 2022, 2021, and 2020, and the amount of interest and penalties recorded on the consolidated balance sheets as of December 31, 2022 and 2021:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Statements of Operations | | Balance Sheets |
| For the year ended December 31, | | As of December 31, |
| (In millions) | 2022 | | 2021 | | 2020 | | 2022 | | 2021 |
| Interest | $ | 0.5 | | | $ | (0.1) | | | $ | 0.4 | | | $ | 2.1 | | | $ | 1.6 | |
| Penalties | $ | 0.1 | | | $ | 0.0 | | | $ | 0.2 | | | $ | 0.5 | | | $ | 0.4 | |
At December 31, 2022, we anticipate that the liability for unrecognized tax benefits could decrease by up to $41.0 million within the next twelve months due to the expiration of certain statutes of limitation or the settlement of examinations or issues with tax authorities. The amount of unrecognized tax benefits as of December 31, 2022 that if recognized would impact our effective tax rate is $174.8 million.
Our major tax jurisdictions include Belgium, Bulgaria, China, France, Germany, Japan, Malaysia, Malta, Mexico, the Netherlands, South Korea, the U.K., and the U.S. These jurisdictions generally remain open to examination by the relevant tax authority for the tax years 2006 through 2022.
Indemnifications
We have various indemnification provisions in place with parties including Honeywell (sellers of First Technology Automotive and Special Products), the Terence Richard Prime Trust dated August 10, 1999 and John Christopher Lakey (sellers of Elastic M2M, Inc.), John Milios (seller of Sendyne Corp.), the former stockholders of SmartWitness Holdings, Inc., and the sellers of Xirgo Technologies Intermediate Holdings, LLC and Xirgo Holdings, Inc., whereby such provisions provide for the reimbursement of future tax liabilities paid by us that relate to the pre-acquisition periods of the acquired businesses.
8. Net Income per Share
Basic and diluted net income per share are calculated by dividing net income by the number of basic and diluted weighted-average ordinary shares outstanding during the period. For the years ended December 31, 2022, 2021, and 2020, the weighted-average ordinary shares outstanding used to calculate basic and diluted net income per share were as follows:
| | | | | | | | | | | | | | | | | |
| For the year ended December 31, |
| (In thousands) | 2022 | | 2021 | | 2020 |
| Basic weighted-average ordinary shares outstanding | 155,253 | | | 158,166 | | | 157,373 | |
| Dilutive effect of stock options | 212 | | | 640 | | | 275 | |
| Dilutive effect of unvested restricted securities | 462 | | | 564 | | | 486 | |
| Diluted weighted-average ordinary shares outstanding | 155,927 | | | 159,370 | | | 158,134 | |
Net income and net income per share are presented in the consolidated statements of operations.
Certain potential ordinary shares were excluded from our calculation of diluted weighted-average ordinary shares outstanding because either they would have had an anti-dilutive effect on net income per share or they related to equity awards that were contingently issuable for which the contingency had not been satisfied. Refer to Note 4: Share-Based Payment Plans for additional information related to our equity awards. These potential ordinary shares are as follows:
| | | | | | | | | | | | | | | | | |
| For the year ended December 31, |
| (In thousands) | 2022 | | 2021 | | 2020 |
| Anti-dilutive shares excluded | 1,115 | | | 6 | | | 1,575 | |
| Contingently issuable shares excluded | 1,294 | | | 1,029 | | | 995 | |
9. Inventories
The following table presents the components of inventories as of December 31, 2022 and 2021:
| | | | | | | | | | | |
| As of December 31, |
| 2022 | | 2021 |
| Finished goods | $ | 202,531 | | | $ | 201,424 | |
| Work-in-process | 117,691 | | | 101,558 | |
| Raw materials | 324,653 | | | 285,249 | |
| Inventories | $ | 644,875 | | | $ | 588,231 | |
Refer to Note 2: Significant Accounting Policies for a discussion of our accounting policies related to inventories.
10. Property, Plant and Equipment, Net
PP&E, net as of December 31, 2022 and 2021 consisted of the following:
| | | | | | | | | | | | | | |
| | As of December 31, |
| | 2022 | | 2021 |
| Land | | $ | 17,881 | | | $ | 17,972 | |
| Buildings and improvements | | 300,288 | | | 285,113 | |
| Machinery and equipment | | 1,634,371 | | | 1,534,166 | |
| Total property, plant and equipment | | 1,952,540 | | | 1,837,251 | |
| Accumulated depreciation | | (1,111,721) | | | (1,016,318) | |
| Property, plant and equipment, net | | $ | 840,819 | | | $ | 820,933 | |
Depreciation expense for PP&E, including amortization of leasehold improvements and depreciation of assets under finance leases, totaled $127.2 million, $125.0 million, and $125.7 million for the years ended December 31, 2022, 2021, and 2020, respectively.
PP&E, net as of December 31, 2022 and 2021 included the following assets under finance leases:
| | | | | | | | | | | |
| As of December 31, |
| 2022 | | 2021 |
| Assets under finance leases in property, plant and equipment | $ | 49,714 | | | $ | 49,714 | |
| Accumulated depreciation | (29,442) | | | (27,821) | |
| Assets under finance leases in property, plant and equipment, net | $ | 20,272 | | | $ | 21,893 | |
Refer to Note 2: Significant Accounting Policies for a discussion of our accounting policies related to PP&E, net.
11. Goodwill and Other Intangible Assets, Net
The following table presents the changes in net goodwill by segment for the years ended December 31, 2022 and 2021.
| | | | | | | | | | | | | | | | | |
| | Performance Sensing | | Sensing Solutions | | Total |
| Balance as of December 31, 2020 | $ | 2,189,771 | | | $ | 921,578 | | | $ | 3,111,349 | |
| | | | | |
| Acquisitions | 290,827 | | | 99,887 | | | 390,714 | |
| Balance as of December 31, 2021 | 2,480,598 | | | 1,021,465 | | | 3,502,063 | |
| Acquisitions | 30,873 | | | 423,288 | | | 454,161 | |
| Divestiture of Qinex Business | — | | | (45,000) | | | (45,000) | |
| Balance as of December 31, 2022 | $ | 2,511,471 | | | $ | 1,399,753 | | | $ | 3,911,224 | |
At each of December 31, 2022, 2021, and 2020, accumulated goodwill impairment related to Performance Sensing and Sensing Solutions was $0.0 million and $18.5 million, respectively. Refer to Note 21: Acquisitions and Divestitures for additional information related to goodwill acquired and written off as a result of our recent acquisitions and the divestiture of the Qinex Business, respectively.
Goodwill attributed to acquisitions reflects our allocation of purchase price to the estimated fair value of certain assets acquired and liabilities assumed. Net assets acquired are comprised of tangible and identifiable intangible assets acquired and liabilities assumed based on their estimated fair values. We apply estimates and assumptions to determine the fair value of the intangible assets and of any contingent consideration obligations. Critical estimates in valuing purchased technology, customer relationships, and other identifiable intangible assets include future cash flows that we expect to generate from the acquired assets. In addition, we estimate the economic lives of these identified intangible assets and these lives are used to calculate amortization expense. Goodwill has been included in our segments based on a methodology using anticipated future earnings of the components of business.
We own the Klixon® and Airpax® tradenames, which are indefinite-lived intangible assets as they have each been in continuous use for almost 75 years and we have no plans to discontinue using either of them. We have recorded $59.1 million and $9.4 million, respectively, on our consolidated balance sheets related to these tradenames. In addition, in the year ended December 31, 2020, we recognized indefinite-lived intangible assets of $6.9 million related to in-process research & development acquired in a fiscal year 2020 business combination transaction.
Effective July 1, 2021, we reorganized our Sensing Solutions operating segment, which resulted in realignment of our reporting units. As a result of this reorganization, our electrical protection product category that includes high-voltage contactors, inverters, rectifiers, and battery management systems was moved to a new reporting unit, Clean Energy Solutions. The remaining portions of our Electrical Protection, Industrial Sensing, Power Management, and Interconnection reporting units were consolidated into a new reporting unit, Industrial Solutions. This reorganization had no impact on our Aerospace reporting unit. Accordingly, as of October 1, 2021, we had five reporting units, Automotive, HVOR, Industrial Solutions, Aerospace, and Clean Energy Solutions.
With the acquisition of SmartWitness Holdings, Inc. ("SmartWitness") in the fourth quarter of 2021, we formed Sensata INSIGHTS, a business unit organized under the HVOR operating segment, to drive growth of our smart and connected offerings to the transportation market, including both those developed organically and through the acquisition of Xirgo Technologies, LLC ("Xirgo") and SmartWitness. We concluded that Sensata INSIGHTS was a separate reporting unit from HVOR. There have been no subsequent changes to our reporting units. Accordingly, as of October 1, 2022, we had six reporting units, Automotive, HVOR, Sensata INSIGHTS, Industrial Solutions, Aerospace, and Clean Energy Solutions.
In July 2022, we sold the Qinex Business, which had previously been consolidated into the Industrial Solutions reporting unit. Upon closing of the sale, we transferred approximately $70 million of assets (including allocated goodwill of $45 million) and $2 million of liabilities to the buyer. Refer to Note 21: Acquisitions and Divestitures for additional information on this transaction.
We concluded that these reorganizations have not impacted our reportable or operating segment evaluations. We reassigned assets and liabilities, including goodwill, to these new reporting units as required by FASB ASC Topic 350. We evaluated our goodwill and other indefinite-lived intangible assets for impairment before and after the reorganization and formation of these reporting units and determined that they were not impaired.
We evaluated our goodwill and other indefinite-lived intangible assets for impairment as of October 1, 2022 using a quantitative analysis for each reporting unit, under which a discounted cash flow analysis is prepared to determine whether the fair value of the reporting unit is less than its carrying value. Based on these analyses, we have determined that as of October 1, 2022, the fair value of each of our reporting units and indefinite-lived intangible assets exceeded their carrying values.
We consider a combination of quantitative and qualitative factors to determine whether a reporting unit is at risk of failing the goodwill impairment test, including: the timing of our most recent quantitative impairment tests and the relative amount by which a reporting unit’s fair value exceeded its then carrying value, the inputs and assumptions underlying our valuation models and the sensitivity of our fair value measurements to those inputs and assumptions, the impact that adverse economic or market conditions may have on the degree of uncertainty inherent in our long-term operating forecasts, and changes in the carrying value of a reporting unit’s net assets from the time of our most recent goodwill impairment test. We also consider the impact of recent acquisitions in our expectations of the reporting units, and how these acquisitions perform against their original expected performance, as these might put pressure on the reporting units' fair value over carrying value in the short term. Based on the results of this analysis, we do not consider any of our reporting units to be at risk of failing the goodwill impairment test.
The following tables outline the components of definite-lived intangible assets as of December 31, 2022 and 2021:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | As of December 31, 2022 |
Weighted-
Average
Life (years) | | Gross
Carrying
Amount | | Accumulated
Amortization | | Accumulated
Impairment | | Net
Carrying
Value |
Completed technologies (2) | 13 | | $ | 1,017,911 | | | $ | (684,181) | | | $ | (2,430) | | | $ | 331,300 | |
Customer relationships (2)(3) | 12 | | 2,092,088 | | | (1,586,454) | | | (12,144) | | | 493,490 | |
| | | | | | | | | |
Tradenames (3) | 18 | | 107,577 | | | (24,575) | | | — | | | 83,002 | |
| | | | | | | | | |
Capitalized software and other (1) | 7 | | 74,163 | | | (57,603) | | | — | | | 16,560 | |
| Total | 12 | | $ | 3,291,739 | | | $ | (2,352,813) | | | $ | (14,574) | | | $ | 924,352 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | As of December 31, 2021 |
Weighted-
Average
Life (years) | | Gross
Carrying
Amount | | Accumulated
Amortization | | Accumulated
Impairment | | Net
Carrying
Value |
| Completed technologies | 14 | | $ | 917,929 | | | $ | (626,490) | | | $ | (2,430) | | | $ | 289,009 | |
| Customer relationships | 12 | | 2,095,735 | | | (1,575,902) | | | (12,144) | | | 507,689 | |
| | | | | | | | | |
| Tradenames | 19 | | 77,484 | | | (23,544) | | | — | | | 53,940 | |
Capitalized software and other (1) | 7 | | 72,180 | | | (51,457) | | | — | | | 20,723 | |
| Total | 12 | | $ | 3,163,328 | | | $ | (2,277,393) | | | $ | (14,574) | | | $ | 871,361 | |
__________________________
(1) During the year ended December 31, 2022, we retired approximately $2.2 million of capitalized software that was not in use, along with approximately $0.5 million of associated accumulated amortization. During the year ended December 31, 2021, we wrote off approximately $2.4 million of fully-amortized capitalized software that was not in use.
(2) During the year ended December 31, 2022, we disposed of the Qinex Business, which included approximately $4.2 million and $26.5 million of fully amortized completed technologies and customer relationships, respectively.
(3) During the year ended December 31, 2022, we wrote-off approximately $43.1 million and $4.1 million of fully-amortized customer relationships and tradenames, respectively, that were not in use.
The following table outlines amortization of definite-lived intangible assets for the years ended December 31, 2022, 2021, and 2020:
| | | | | | | | | | | | | | | | | |
| For the year ended December 31, |
| 2022 | | 2021 | | 2020 |
| Acquisition-related definite-lived intangible assets | $ | 147,110 | | | $ | 125,982 | | | $ | 122,915 | |
| Capitalized software | 6,677 | | | 8,147 | | | 6,634 | |
| Amortization of intangible assets | $ | 153,787 | | | $ | 134,129 | | | $ | 129,549 | |
The table below presents estimated amortization of definite-lived intangible assets for each of the next five years:
| | | | | |
| For the year ended December 31, | |
| 2023 | $ | 153,685 | |
| 2024 | $ | 138,980 | |
| 2025 | $ | 113,824 | |
| 2026 | $ | 95,916 | |
| 2027 | $ | 82,327 | |
12. Accrued Expenses and Other Current Liabilities
Accrued expenses and other current liabilities as of December 31, 2022 and 2021 consisted of the following:
| | | | | | | | | | | |
| As of December 31, |
| 2022 | | 2021 |
| Accrued compensation and benefits | $ | 85,995 | | | $ | 98,839 | |
| Accrued interest | 50,146 | | | 45,123 | |
| Foreign currency and commodity forward contracts | 10,652 | | | 5,591 | |
| Current portion of operating lease liabilities | 9,971 | | | 11,035 | |
| Accrued severance | 8,617 | | | 7,233 | |
| Current portion of pension and post-retirement benefit obligations | 2,504 | | | 2,554 | |
| Other accrued expenses and current liabilities | 179,057 | | | 173,441 | |
| Accrued expenses and other current liabilities | $ | 346,942 | | | $ | 343,816 | |
13. Pension and Other Post-Retirement Benefits
We provide various pension and other post-retirement benefit plans for current and former employees, including defined benefit, defined contribution, and retiree healthcare benefit plans. Refer to Note 2: Significant Accounting Policies for discussion of our accounting policies related to our pension and other post-retirement benefit plans.
The total net periodic benefit cost associated with our defined benefit and retiree healthcare plans for the years ended December 31, 2022, 2021, and 2020 were $9.1 million, $11.6 million, and $13.5 million, respectively. Components of net periodic benefit cost other than service cost are presented in other, net in the consolidated statements of operations. Refer to Note 6: Other, Net.
The following table presents changes in the benefit obligation and plan assets for our defined benefit and other post-retirement benefit plans in total for the years ended December 31, 2022 and 2021:
| | | | | | | | | | | | | | | | | | | |
| | | | | | For the year ended December 31, |
| | | | | | 2022 | | | | | | 2021 |
| | | | | | | |
| | | | | | | | | | | |
| Change in benefit obligation: | | | | | | | | | | | |
| Beginning balance | | | | | $ | 108,511 | | | | | | | $ | 129,627 | |
| Service cost | | | | | 3,897 | | | | | | | 4,070 | |
| Interest cost | | | | | 2,485 | | | | | | | 2,223 | |
| Plan participants’ contributions | | | | | 562 | | | | | | | 698 | |
| | | | | | | | | | | |
| Actuarial (gain)/loss | | | | | (11,710) | | | | | | | 1,163 | |
| Curtailment loss/(gain) | | | | | 466 | | | | | | | (1,368) | |
| Benefits paid | | | | | (12,436) | | | | | | | (20,467) | |
| | | | | | | | | | | |
| Divestiture | | | | | (997) | | | | | | | — | |
| Foreign currency remeasurement | | | | | (6,327) | | | | | | | (7,435) | |
| Ending balance | | | | | $ | 84,451 | | | | | | | $ | 108,511 | |
| Change in plan assets: | | | | | | | | | | | |
| Beginning balance | | | | | $ | 67,199 | | | | | | | $ | 78,127 | |
| Actual return on plan assets | | | | | (8,606) | | | | | | | 2,635 | |
| Employer contributions | | | | | 4,368 | | | | | | | 10,961 | |
| Plan participants’ contributions | | | | | 562 | | | | | | | 698 | |
| Benefits paid | | | | | (12,436) | | | | | | | (20,467) | |
| | | | | | | | | | | |
| Foreign currency remeasurement | | | | | (5,226) | | | | | | | (4,755) | |
| Ending balance | | | | | $ | 45,861 | | | | | | | $ | 67,199 | |
| Funded status at end of year | | | | | $ | (38,590) | | | | | | | $ | (41,312) | |
| Accumulated benefit obligation at end of year | | | | | $ | 72,468 | | | | | | | $ | 95,213 | |
14. Debt
Our long-term debt, net and finance lease and other financing obligations as of December 31, 2022 and 2021 consisted of the following:
| | | | | | | | | | | | | | | | | |
| | | As of December 31, |
| Maturity Date | | 2022 | | 2021 |
Term Loan (1) | September 20, 2026 | | $ | 446,834 | | | $ | 451,465 | |
4.875% Senior Notes (2) | October 15, 2023 | | — | | | 500,000 | |
5.625% Senior Notes | November 1, 2024 | | 400,000 | | | 400,000 | |
5.0% Senior Notes | October 1, 2025 | | 700,000 | | | 700,000 | |
4.375% Senior Notes | February 15, 2030 | | 450,000 | | | 450,000 | |
3.75% Senior Notes | February 15, 2031 | | 750,000 | | | 750,000 | |
4.0% Senior Notes | April 15, 2029 | | 1,000,000 | | | 1,000,000 | |
5.875% Senior Notes | September 1, 2030 | | 500,000 | | | — | |
| Less: debt discount, net of premium | | | (3,360) | | | (5,207) | |
| Less: deferred financing costs | | | (29,916) | | | (26,682) | |
Less: current portion (1) | | | (254,630) | | | (4,630) | |
| Long-term debt, net | | | $ | 3,958,928 | | | $ | 4,214,946 | |
| Finance lease and other financing obligations | | | $ | 26,583 | | | $ | 28,767 | |
| Less: current portion | | | (1,841) | | | (2,203) | |
| Finance lease and other financing obligations, less current portion | | | $ | 24,742 | | | $ | 26,564 | |
_______________________________
(1) On February 6, 2023, we prepaid $250.0 million of outstanding principal on our Term Loan balance. Accordingly, that portion of the term loan principal balance has been presented in current portion of long-term debt on our consolidated balance sheet as of December 31, 2022.
(2) The 4.875% Senior Notes were redeemed on September 28, 2022.
Fiscal year 2022 transactions
On June 23, 2022, certain of our indirect, wholly-owned subsidiaries, including Sensata Technologies, Inc. ("STI"), Sensata Technologies Intermediate Holding B.V. ("STIHBV"), and Sensata Technologies B.V. (“STBV”), entered into an amendment (the “Eleventh Amendment”) to (i) the credit agreement, dated as of May 12, 2011 (as amended, supplemented, waived, or otherwise modified, the “Credit Agreement”), and (ii) the Foreign Guaranty, dated as of May 12, 2011. Refer to discussion under the heading Secured Credit Facility below for additional information regarding the Eleventh Amendment.
On August 29, 2022, STBV completed the issuance and sale of $500.0 million aggregate principal amount of 5.875% senior notes due 2030 (the "5.875% Senior Notes"). The 5.875% Senior Notes bear interest at 5.875% per year and mature on September 1, 2030. Interest is payable semi-annually on September 1 and March 1 of each year, commencing on March 1, 2023. The 5.875% Senior Notes were issued under an indenture dated as of August 29, 2022, among STBV, as issuer, The Bank of New York Mellon, as trustee, and our guarantor subsidiaries named therein (the "5.875% Senior Notes Indenture"). The 5.875% Senior Notes are guaranteed by each of STBV's wholly-owned subsidiaries that is a borrower or guarantor under the senior secured credit facilities (the "Senior Secured Credit Facilities") of STI and an issuer or a guarantor under our existing senior notes as follows: STBV's $400.0 million aggregate principal amount of 5.625% senior notes due 2024 (the "5.625% Senior Notes"), $700.0 million aggregate principal amount of 5.0% senior notes due 2025 (the "5.0% Senior Notes"), and $1.0 billion aggregate principal amount of 4.0% senior notes due 2029 (the "4.0% Senior Notes"); and STI's $450.0 million aggregate principal amount of 4.375% senior notes due 2030 (the "4.375% Senior Notes") and $750 million aggregate principal amount of 3.75% senior notes due 2031 (the "3.75% Senior Notes"). Refer to discussion under the heading Senior Notes below for additional information regarding the issuance of the 5.875% Senior Notes.
On September 28, 2022, we redeemed in full the $500.0 million aggregate principal amount outstanding on our 4.875% senior notes due 2023 (the "4.875% Senior Notes") in accordance with the terms of the indenture under which the 4.875% Senior Notes were issued, at a price of 101.0% of the aggregate principal amount of the outstanding 4.875% Senior Notes (which includes the applicable premium), plus accrued and unpaid interest to (but not including) the redemption date.
Fiscal Year 2021 transactions
On March 5, 2021, we redeemed the $750.0 million aggregate principal amount outstanding on the 6.25% senior notes due 2026 (the "6.25% Senior Notes") in accordance with the terms of the indenture under which the 6.25% Senior Notes were issued and the terms of the notice of redemption, at a redemption price equal to 103.125% of the aggregate principal amount of the outstanding 6.25% Senior Notes, plus accrued and unpaid interest to (but not including) the redemption date. In addition to the $750.0 million aggregate principal amount outstanding, at redemption we paid a premium of $23.4 million and accrued interest of $2.6 million.
On March 29, 2021, our indirect, wholly-owned subsidiary, STBV, completed the issuance and sale of $750.0 million aggregate principal amount of 4.0% senior notes due 2029, issued under an indenture dated as of March 29, 2021 among STBV, as issuer, The Bank of New York Mellon, as trustee (the "Trustee"), and our guarantor subsidiaries (the "Guarantors") named therein (the "4.0% Senior Notes Indenture"). On April 8, 2021, STBV completed the issuance and sale of an additional $250.0 million in aggregate principal amount of 4.0% senior notes due 2029, which were priced at 100.75% and were issued pursuant to the 4.0% Senior Notes Indenture, as supplemented by the First Supplemental Indenture, dated as of April 8, 2021, among STBV, the Guarantors, and the Trustee. The 4.0% senior notes due 2029 issued in March 2021 have the same terms as those issued in April 2021, other than with respect to the date of issuance and the issue price. The two issuances of 4.0% senior notes are consolidated and form a single class of 4.0% Senior Notes due 2029.
Refer to discussion under the heading Senior Notes below for additional information regarding these transactions.
Secured Credit Facility
The Credit Agreement provides for the Senior Secured Credit Facilities, consisting of a term loan facility (the "Term Loan"), a revolving credit facility, and incremental availability under which additional secured credit facilities could be issued under certain circumstances. All obligations under the Senior Secured Credit Facilities are unconditionally guaranteed by certain of our subsidiaries and secured by substantially all present and future property and assets of STBV and its guarantor subsidiaries.
On June 23, 2022, we entered into the Eleventh Amendment, which amended the Credit Agreement as follows: (i) increased the aggregate principal amount of the revolving credit facility under the Credit Agreement (the "Revolving Credit Facility") to $750.0 million; (ii) extended the maturity date of the Revolving Credit Facility to June 23, 2027 (which could be accelerated to June 22, 2026 if, prior to June 22, 2026, the Term Loan is not refinanced with a maturity date that is on or after June 23, 2027); (iii) released the Foreign Guarantors (as defined in the Credit Agreement), excluding STBV, from their obligations to guarantee the obligations of STI and the other Loan Parties (as defined in the Credit Agreement) relating to the Revolving Credit Facility and certain related obligations, subject to an obligation to reinstate such guaranties under certain conditions; (iv) replaced the LIBOR-based interest rates referenced by the Credit Agreement regarding revolving credit loans to (a) for revolving credit loans denominated in U.S. dollars, an interest rate based on the secured overnight financing rate ("SOFR") published by the Federal Reserve Bank of New York and (b) for revolving credit loans denominated in pounds sterling, an interest rate based on the Sterling Overnight Index Average ("SONIA"); and (v) certain of the operational and restrictive covenants and other terms and conditions of the Credit Agreement were modified to provide STI and its affiliates increased flexibility and permissions thereunder.
The Credit Agreement provides that, if our senior secured net leverage ratio exceeds a specified level, we are required to use a portion of our excess cash flow, as defined in the Credit Agreement, generated by operating, investing, or financing activities to prepay the outstanding borrowings under the Senior Secured Credit Facilities. The Credit Agreement also requires mandatory prepayments of the outstanding borrowings under the Senior Secured Credit Facilities upon certain asset dispositions and casualty events, in each case subject to certain reinvestment rights, and the incurrence of certain indebtedness (excluding any permitted indebtedness). These provisions were not triggered during the year ended December 31, 2022.
Term Loan
The principal amount of the Term Loan amortizes in equal quarterly installments in an aggregate annual amount equal to 1.0% of the aggregate principal amount of the Term Loan upon completion of the tenth amendment of the Credit Agreement entered into on September 20, 2019 (the "Tenth Amendment,") with the balance due at maturity.
In accordance with the terms of the Credit Agreement, as of December 31, 2022, the Term Loan may, at our option, be maintained from time to time as a Base Rate loan or a Eurodollar Rate loan (each as defined in the Credit Agreement), with each representing a different determination of interest rates. The interest rate margins for the Term Loan are fixed at, and as of December 31, 2022 were, 0.75% and 1.75% for Base Rate loans and Eurodollar Rate loans, respectively, subject to floors of 1.00% and 0.00% for Base Rate loans and Eurodollar Rate loans, respectively. As of December 31, 2022, we maintained the Term Loan as a Eurodollar Rate loan, which accrued interest at 5.87%. On January 4, 2023, we entered into an amendment to the Credit Agreement (the “Twelfth Amendment”) that will change the referenced rates related to the Term Loan to the SOFR and SONIA, effective in April 2023.
Revolving Credit Facility
In accordance with the terms of the Credit Agreement, borrowings under the Revolving Credit Facility may, at our option, be maintained from time to time as Base Rate loans, Term SOFR loans, or Daily Simple SONIA loans (each as defined in the Credit Agreement), with each representing a different determination of interest rates. The interest rate margins and letter of credit fees under the Revolving Credit Facility are as follows (each depending on our senior secured net leverage ratio): (i) the interest rate margin for Base Rate loans range from 0.00% to 0.50%; (ii) the interest rate margin for Term SOFR and Daily Simple SONIA loans range from 1.00% to 1.50%; and (iii) the letter of credit fees range from 0.875% to 1.375%.
We are required to pay to our revolving credit lenders, on a quarterly basis, a commitment fee on the unused portion of the Revolving Credit Facility. The commitment fee ranges from 0.125% to 0.250%, depending on our senior secured net leverage ratios.
As of December 31, 2022, there was $746.1 million available under the Revolving Credit Facility, net of $3.9 million of obligations in respect of outstanding letters of credit issued thereunder. Outstanding letters of credit are issued primarily for the benefit of certain operating activities. As of December 31, 2022, no amounts had been drawn against these outstanding letters of credit. Availability under the Revolving Credit Facility may be borrowed, repaid, and re-borrowed to fund our working capital needs and for other general corporate purposes.
Senior Notes
We have various tranches of senior unsecured notes outstanding as of December 31, 2022. Information regarding these senior notes (together, the "Senior Notes") is included in the following table. The Senior Notes were issued under indentures (the "Senior Notes Indentures") among the issuers listed in the table below, The Bank of New York Mellon, as trustee, and our guarantor subsidiaries named in the respective Senior Notes Indentures.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | 5.625% Senior Notes | | 5.0% Senior Notes | | | | 4.375% Senior Notes | | 3.75% Senior Notes | | 4.0% Senior Notes | | 5.875% Senior Notes |
| Aggregate principal amount | | | $400,000 | | $700,000 | | | | $450,000 | | $750,000 | | $1,000,000 | | $500,000 |
| Interest rate | | | 5.625% | | 5.000% | | | | 4.375% | | 3.750% | | 4.000% | | 5.875% |
| Issue price | | | 100.000% | | 100.000% | | | | 100.000% | | 100.000% | | Various (1) | | 100.000% |
| Issuer | | | STBV | | STBV | | | | STI | | STI | | STBV | | STBV |
| Issue date | | | October 2014 | | March 2015 | | | | September 2019 | | August 2020 | | Various (1) | | August 2022 |
| Interest due | | | May 1 | | April 1 | | | | February 15 | | February 15 | | April 15 | | September 1 |
| Interest due | | | November 1 | | October 1 | | | | August 15 | | August 15 | | October 15 | | March 1 |
| | | | | | | | | | | | | | | |
__________________________
(1) On March 29, 2021, we issued $750.0 million of 4.0% Senior Notes that were priced at 100.00%. On April 8, 2021, we issued $250.0 million of 4.0% Senior Notes that were priced at 100.75%.
Redemption - General
Upon the occurrence of certain specific change in control events, we will be required to offer to repurchase the Senior Notes at 101% of their principal amount, plus accrued and unpaid interest, if any, to, but excluding, the date of repurchase.
If changes in certain tax laws or treaties, or any change in the official application, administration, or interpretation thereof, of any relevant taxing jurisdiction become effective that would impose withholding taxes or other deductions on the payments of any of the Senior Notes or the guarantees thereof, we may, at our option, redeem the relevant Senior Notes in whole but not in part, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the redemption date, premium, if any, and all additional amounts (as described in the relevant Senior Notes Indenture), if any, then due and which will become due on the date of redemption.
Except as described below with respect to the 4.375% Senior Notes, 3.75% Senior Notes, the 4.0% Senior Notes, and the 5.875% Senior Notes, at any time, and from time to time, we may optionally redeem the Senior Notes, in whole or in part, at a price equal to 100% of the principal amount of the notes redeemed, plus accrued and unpaid interest, if any, up to, but excluding, the date of redemption, plus a "make-whole" premium set forth in the relevant Senior Notes Indenture.
Redemption - 4.375% Senior Notes
The "make-whole" premium will not be payable with respect to any such redemption of the 4.375% Senior Notes on or after November 15, 2029.
Redemption - 3.75% Senior Notes
The "make-whole" premium will not be payable with respect to any such redemption of the 3.75% Senior Notes on or after February 15, 2026. On or after such date, we may optionally redeem the 3.75% Senior Notes, in whole or in part, at the following prices (expressed as a percentage of principal amount), plus accrued and unpaid interest, if any, up to but excluding the redemption date:
| | | | | |
|
| Period beginning February 15, | Price |
| 2026 | 101.875 | % |
| 2027 | 100.938 | % |
| 2028 and thereafter | 100.000 | % |
Redemption - 4.0% Senior Notes
The "make-whole" premium will not be payable with respect to any such redemption of the 4.0% Senior Notes on or after April 15, 2024. On or after such date, we may optionally redeem the 4.0% Senior Notes, in whole or in part, at the following prices (expressed as a percentage of principal amount), plus accrued and unpaid interest, if any, up to but excluding the redemption date:
| | | | | |
| Period beginning April 15, | Price |
| 2024 | 102.000 | % |
| 2025 | 101.000 | % |
| 2026 and thereafter | 100.000 | % |
In addition, at any time prior to April 15, 2024, STBV may redeem up to 40% of the principal amount of the outstanding 4.0% Senior Notes (including additional 4.0% Senior Notes, if any, that may be issued after March 29, 2021) with the net cash proceeds of certain equity offerings at a redemption price (expressed as a percentage of principal amount) of 104.00%, plus accrued and unpaid interest, if any, up to but excluding the redemption date, provided that at least 60% of the aggregate principal amount of the 4.0% Senior Notes (including additional 4.0% Senior Notes, if any) remains outstanding immediately after each such redemption.
Redemption - 5.875% Senior Notes
At any time, and from time to time, prior to September 1, 2025, STBV may redeem the 5.875% Senior Notes, in whole or in part, at a redemption price equal to 100% of the principal amount of the 5.875% Senior Notes being redeemed, plus a “make whole” premium, plus accrued and unpaid interest, if any, to, but excluding, the redemption date. At any time on or after September 1, 2025, STBV may redeem the 5.875% Senior Notes, in whole or in part, at the following prices (expressed as a percentage of principal amount), plus accrued and unpaid interest, if any, up to but excluding the redemption date:
| | | | | |
| Period beginning September 1, | Price |
| 2025 | 102.398 | % |
| 2026 | 101.469 | % |
| 2027 and thereafter | 100.000 | % |
In addition, at any time prior to September 1, 2025, STBV may redeem up to 40% of the principal amount of the outstanding 5.875% Senior Notes (including additional 5.875% Senior Notes, if any) with the net cash proceeds of certain equity offerings at a redemption price (expressed as a percentage of principal amount) of 105.875%, plus accrued and unpaid interest, if any, up to but excluding the redemption date, provided that at least 60% of the aggregate principal amount of the 5.875% Senior Notes (including additional 5.875% Senior Notes, if any) remains outstanding immediately after each such redemption.
Guarantees
The obligations of the issuers of the Senior Notes are guaranteed by STBV and all of its subsidiaries (excluding the company that is the issuer of the relevant Senior Notes) that guarantee the obligations of STI under the Credit Agreement (after giving effect to the Guarantees Release pursuant to the Tenth Amendment).
Events of Default
The Senior Notes Indentures provide for events of default that include, among others, nonpayment of principal or interest when due, breach of covenants or other provisions in the relevant Senior Notes Indenture, defaults in payment of certain other indebtedness, certain events of bankruptcy or insolvency, failure to pay certain judgments, and the cessation of the full force and effect of the guarantees of significant subsidiaries. Generally, if an event of default occurs, the trustee or the holders of at least 25% in principal amount of the then outstanding Senior Notes issued under the relevant Senior Notes Indenture may declare the principal of, and accrued but unpaid interest on, all of the relevant Senior Notes to be due and payable immediately. All provisions regarding remedies in an event of default are subject to the relevant Senior Notes Indenture.
Restrictions and Covenants
As of December 31, 2022, STBV and all of its subsidiaries were subject to certain restrictive covenants under the Credit Agreement and the Senior Notes Indentures. Under certain circumstances, STBV is permitted to designate a subsidiary as "unrestricted" for purposes of the Credit Agreement, in which case the restrictive covenants thereunder will not apply to that subsidiary; the Senior Notes Indentures do not contain such a permission. STBV has not designated any subsidiaries as unrestricted. The net assets of STBV subject to these restrictions totaled $2.9 billion at December 31, 2022.
Credit Agreement
The Credit Agreement contains non-financial restrictive covenants (subject to important exceptions and qualifications set forth in the Credit Agreement) that limit our ability to, among other things:
•incur indebtedness or liens, prepay subordinated debt, or amend the terms of our subordinated debt;
•make loans and investments (including acquisitions) or sell assets;
•change our business or accounting policies, merge, consolidate, dissolve or liquidate, or amend the terms of our organizational documents;
•enter into affiliate transactions;
•pay dividends and make other restricted payments;
•or enter into certain burdensome contractual obligations.
In addition, under the Credit Agreement, STBV and its subsidiaries are required to maintain a senior secured net leverage ratio not to exceed 5.0:1.0 at the conclusion of certain periods when outstanding loans and letters of credit that are not cash collateralized for the full face amount thereof exceed 20% of the commitments under the Revolving Credit Facility.
Senior Notes Indentures
The Senior Notes Indentures contain restrictive covenants (subject to important exceptions and qualifications set forth in the Senior Notes Indentures) that limit the ability of STBV and its subsidiaries to, among other things: incur liens; incur or guarantee indebtedness without guaranteeing the Senior Notes; engage in sale and leaseback transactions; or effect mergers or consolidations, or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of the assets of STBV and its subsidiaries.
Certain of these covenants will be suspended if the Senior Notes are assigned an investment grade rating by Standard & Poor's Rating Services or Moody's Investors Service, Inc. and provided no default has occurred and is continuing at such time. The suspended covenants will be reinstated if the Senior Notes are no longer assigned an investment grade rating by either rating agency or an event of default has occurred and is continuing at such time. As of December 31, 2022, none of the Senior Notes were assigned an investment grade rating by either rating agency.
Restrictions on Payment of Dividends
STBV's subsidiaries are generally not restricted in their ability to pay dividends or otherwise distribute funds to STBV, except for restrictions imposed under applicable corporate law.
STBV, however, is limited in its ability to pay dividends or otherwise make distributions to its immediate parent company and, ultimately, to Sensata plc, under the Credit Agreement. Specifically, the Credit Agreement prohibits STBV from paying dividends or making distributions to its parent companies except for purposes that include, but are not limited to, the following:
•customary and reasonable operating expenses, legal and accounting fees and expenses, and overhead of such parent companies incurred in the ordinary course of business, provided that such amounts, in the aggregate, do not exceed $20.0 million in any fiscal year;
•dividends and other distributions in an aggregate amount not to exceed $200.0 million plus certain amounts, including the retained portion of excess cash flow, but only insofar as no default or event of default exists and the senior secured net leverage ratio is less than 2.0:1.0 calculated on a pro forma basis;
•so long as no default or an event of default exists, dividends and other distributions in an aggregate amount not to exceed $50.0 million in any calendar year (with the unused portion in any year being carried over to succeeding years) plus
unlimited additional amounts but only insofar as the senior secured net leverage ratio is less than 2.5:1.0 calculated on a pro forma basis; and
•other dividends and other distributions in an aggregate amount not to exceed $150.0 million, so long as no default or event of default exists.
The Senior Notes Indentures generally allow STBV to pay dividends and make other distributions to its parent companies.
Compliance with Financial and Non-Financial Covenants
We were in compliance with all of the financial and non–financial covenants and default provisions associated with our indebtedness as of December 31, 2022 and for the fiscal year then ended.
Accounting for Debt Financing Transactions
In the year ended December 31, 2022, in connection with the entry into the Eleventh Amendment, we recognized $2.7 million of deferred financing costs, which are presented as a reduction of long-term debt on our consolidated balance sheets. In connection with the issuance of the 5.875% Senior Notes, we capitalized $6.1 million of deferred financing costs, which are presented on the consolidated balance sheets as a reduction of long-term debt. In connection with the redemption of the 4.875% Senior Notes, we recognized a loss of $5.5 million, presented in other, net, related to the write-off of unamortized deferred financing costs and debt discounts.
In the year ended December 31, 2021, in connection with the early redemption of the 6.25% Senior Notes, we recognized a loss of $30.1 million, which primarily reflects payment of $23.4 million for the early redemption premium, with the remaining loss representing write-off of debt discounts and deferred financing costs. In addition, in connection with the issuance of the 4.0% Senior Notes, we recognized $9.6 million of deferred financing costs, which are presented as a reduction of long-term debt on our consolidated balance sheets and $1.7 million of issuance premiums, which are presented as an addition to long-term debt on our consolidated balance sheets.
In the year ended December 31, 2020, in connection with the entry into the 3.75% Senior Notes, we incurred $8.4 million of related third-party costs, which are presented as a reduction of long-term debt on our consolidated balance sheets.
Refer to Note 2: Significant Accounting Policies for additional information related to our accounting policies regarding debt financing transactions.
Finance Lease and Other Financing Obligations
Refer to Note 17: Leases for additional information related to our finance leases.
Debt Maturities
The aggregate principal amount of each tranche of our Senior Notes is due in full at its maturity date. The Term Loan must be repaid in full on or prior to its final maturity date. Loans made pursuant to the Revolving Credit Facility must be repaid in full at its maturity date and can be repaid prior to then at par. All letters of credit issued thereunder will terminate at the final maturity of the Revolving Credit Facility unless cash collateralized prior to such time.
The following table presents the remaining mandatory principal repayments of long-term debt, excluding finance lease payments, other financing obligations, and discretionary repurchases of debt, in each of the years ended December 31, 2023 through 2027 and thereafter. On February 6, 2023, we prepaid $250.0 million of outstanding principal on our Term Loan, which has been reflected below as paid in 2023.
| | | | | |
| For the year ended December 31, | Aggregate Maturities |
| 2023 | $ | 254,630 | |
| 2024 | 404,630 | |
| 2025 | 704,630 | |
| 2026 | 182,944 | |
| 2027 | — | |
| Thereafter | 2,700,000 | |
| Total long-term debt principal payments | $ | 4,246,834 | |
15. Commitments and Contingencies
Non-cancelable purchase agreements exist with various suppliers, primarily for services such as information technology ("IT") support. The terms of these agreements are fixed and determinable. As of December 31, 2022, we had the following purchase commitments, presented by expected payment dates:
| | | | | |
| For the year ending December 31, | |
| 2023 | $ | 77,671 | |
| 2024 | 11,227 | |
| 2025 | 4,238 | |
| 2026 | 2,460 | |
| 2027 | 1,022 | |
| Thereafter | 96 | |
| Total purchase commitments | $ | 96,714 | |
Off-Balance Sheet Arrangements
From time to time, we execute contracts that require us to indemnify the other parties to the contracts. These indemnification obligations generally arise in two contexts. First, in connection with certain transactions, such as the divestiture of a business or the issuance of debt or equity securities, the agreement typically contains standard provisions requiring us to indemnify the purchaser against breaches by us of representations and warranties contained in the agreement. These indemnities are generally subject to time and liability limitations. Second, we enter into agreements in the ordinary course of business, such as customer contracts, that might contain indemnification provisions relating to product quality, intellectual property infringement, governmental regulations and employment related matters, and other typical indemnities. In certain cases, indemnification obligations arise by law.
We believe that our indemnification obligations are consistent with other companies in the markets in which we compete. Performance under any of these indemnification obligations would generally be triggered by a breach of the terms of the contract or by a third-party claim. Historically, we have experienced only immaterial and irregular losses associated with these indemnifications. Consequently, any future liabilities brought about by these indemnifications cannot reasonably be estimated or accrued.
Indemnifications Provided as Part of Contracts and Agreements
We are party to the following types of agreements pursuant to which we may be obligated to indemnify a third party with respect to certain matters.
Officers and Directors: Our articles of association provide for indemnification of directors and officers by us to the fullest extent permitted by applicable law, as it now exists or may hereinafter be amended (but, in the case of an amendment, only to the extent such amendment permits broader indemnification rights than permitted prior thereto), against any and all liabilities, including all expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit, or proceeding, provided he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, our best interests, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful or outside of his or her mandate. The articles do not provide a limit to the maximum future payments, if any, under the indemnification. No indemnification is provided for in respect of any claim, issue, or matter as to which such person has been adjudged to be liable for gross negligence or willful misconduct in the performance of his or her duty on our behalf.
In addition, we have a liability insurance policy that insures directors and officers against the cost of defense, settlement, or payment of claims and judgments under some circumstances. Certain indemnification payments may not be covered under our directors’ and officers’ insurance coverage.
Initial Purchasers of Senior Notes: Pursuant to the terms of the purchase agreements entered into in connection with our private placement senior note offerings, we are obligated to indemnify the initial purchasers of the Senior Notes against certain liabilities caused by any untrue statement or alleged untrue statement of a material fact in various documents relied upon by such initial purchasers, or to contribute to payments the initial purchasers may be required to make in respect thereof. The purchase agreements do not provide a limit to the maximum future payments, if any, under these indemnifications.
Intellectual Property and Product Liability Indemnification: We routinely sell products with a limited intellectual property and product liability indemnification included in the terms of sale. Historically, we have had only immaterial and irregular losses associated with these indemnifications. Consequently, any future liabilities resulting from these indemnifications cannot reasonably be estimated or accrued.
Product Warranty Liabilities
Refer to Note 2: Significant Accounting Policies — Revenue Recognition for additional information related to the warranties we provide to customers.
In the event a warranty claim based on defective materials exists, we may be able to recover some of the cost of the claim from the vendor from whom the materials were purchased. Our ability to recover some of the costs will depend on the terms and conditions to which we agreed when the materials were purchased. When a warranty claim is made, the only collateral available to us is the return of the inventory from the customer making the warranty claim. Historically, when customers make a warranty claim, we either replace the product or provide the customer with a credit. We generally do not rework the returned product.
Our policy is to accrue for warranty claims when a loss is both probable and estimable. This is accomplished by accruing for estimated returns and estimated costs to replace the product at the time the related revenue is recognized. Liabilities for warranty claims have historically not been material. In some instances, customers may make claims for costs they incurred or other damages related to a claim.
Environmental Remediation Liabilities
Our operations and facilities are subject to U.S. and non-U.S. laws and regulations governing the protection of the environment and our employees, including those governing air emissions, chemical usage, water discharges, the management and disposal of hazardous substances and wastes, and the cleanup of contaminated sites. We could incur substantial costs, including cleanup costs, fines, civil or criminal sanctions, or third-party property damage or personal injury claims, in the event of violations or liabilities under these laws and regulations, or non-compliance with the environmental permits required at our facilities. Potentially significant expenditures could be required in order to comply with environmental laws that may be adopted or imposed in the future. We are, however, not aware of any threatened or pending material environmental investigations, lawsuits, or claims involving us or our operations.
Legal Proceedings and Claims
We are regularly involved in a number of claims and litigation matters that arise in the ordinary course of business. Although it is not feasible to predict the outcome of these matters, based upon our experience and current information known to us, we do not expect the outcome of these matters, either individually or in the aggregate, to have a material adverse effect on our results of operations, financial position, and/or cash flows.
We account for litigation and claims losses in accordance with FASB ASC Topic 450, Contingencies. Under FASB ASC Topic 450, loss contingency provisions are recognized for probable and estimable losses at our best estimate of a loss or, when a best estimate cannot be made, at our estimate of the minimum loss. These estimates are often developed prior to knowing the amount of the ultimate loss, require the application of considerable judgment, and are refined each accounting period as additional information becomes known. Accordingly, we are often initially unable to develop a best estimate of loss and therefore the minimum amount, which could be an immaterial amount, is recognized. As information becomes known, either the minimum loss amount is increased, or a best estimate can be made, generally resulting in additional loss provisions. A best estimate amount may be changed to a lower amount when events result in an expectation of a more favorable outcome than previously expected.
Pending Litigation and Claims:
There are no material pending litigation or claims outstanding as of December 31, 2022.
16. Shareholders' Equity
Cash Dividends
In the year ended December 31, 2022, we paid three quarterly dividends totaling $0.33 per share, or $51.1 million in the aggregate.
Treasury Shares
From time to time, our Board of Directors has authorized various share repurchase programs, which may be modified or terminated by our Board of Directors at any time. Under these programs, we may repurchase ordinary shares at such times and in amounts to be determined by our management, based on market conditions, legal requirements, and other corporate considerations, on the open market or in privately negotiated transactions, provided that such transactions were completed pursuant to an agreement and with a third party approved by our shareholders at the annual general meeting. The authorized amount of our various share repurchase programs may be modified or terminated by our Board of Directors at any time. Ordinary shares repurchased by us are recognized, measured at cost, and presented as treasury shares on our consolidated balance sheets, resulting in a reduction of shareholders' equity.
In July 2019 our Board of Directors authorized a $500.0 million share repurchase program (the "July 2019 Program"). On April 2, 2020, we announced a temporary suspension of the July 2019 Program. At the time of this announcement, approximately $302.3 million remained available under this program. We resumed repurchasing shares under the July 2019 Program in November 2021, and during the year ended December 31, 2021, we repurchased approximately 0.8 million shares for $47.8 million (an average price of $59.28 per share). As of December 31, 2021, approximately $254.5 million remained available under the July 2019 Program.
On January 20, 2022, we announced that our Board of Directors had authorized a new $500.0 million ordinary share repurchase program (the “January 2022 Program”), which replaced the July 2019 Program. Sensata’s shareholders had previously approved the forms of share repurchase agreements and the potential broker counterparties needed to execute the buyback program. During the year ended December 31, 2022, we repurchased approximately 6.3 million shares for $292.3 million (an average price of $46.08 per share). As of December 31, 2022, approximately $224.5 million remained available for repurchase under the January 2022 Program.
Accumulated Other Comprehensive Loss
The components of accumulated other comprehensive loss for the years ended December 31, 2022, 2021, and 2020 were as follows:
| | | | | | | | | | | | | | | | | |
| Cash Flow Hedges | | Defined Benefit and Retiree Healthcare Plans | | Accumulated Other Comprehensive Loss |
| Balance as of December 31, 2019 | $ | 16,546 | | | $ | (37,030) | | | $ | (20,484) | |
| Pre-tax current period change | (31,114) | | | (7,848) | | | (38,962) | |
| Income tax effect | 7,835 | | | 2,076 | | | 9,911 | |
| Balance as of December 31, 2020 | (6,733) | | | (42,802) | | | (49,535) | |
| Pre-tax current period change | 31,671 | | | 8,145 | | | 39,816 | |
| Income tax effect | (8,107) | | | (1,734) | | | (9,841) | |
| Balance as of December 31, 2021 | 16,831 | | | (36,391) | | | (19,560) | |
| Pre-tax current period change | (1,571) | | | 5,311 | | | 3,740 | |
| Income tax effect | 405 | | | (849) | | | (444) | |
| Balance as of December 31, 2022 | $ | 15,665 | | | $ | (31,929) | | | $ | (16,264) | |
The components of other comprehensive (loss)/income, net of tax, for the years ended December 31, 2022, 2021, and 2020 were as follows:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| | 2022 | | 2021 | | 2020 |
| | Cash Flow Hedges | | Defined Benefit and Retiree Healthcare Plans | | Total | | Cash Flow Hedges | | Defined Benefit and Retiree Healthcare Plans | | Total | | Cash Flow Hedges | | Defined Benefit and Retiree Healthcare Plans | | Total |
| Other comprehensive (loss)/income before reclassifications | | $ | 37,957 | | | $ | 1,597 | | | $ | 39,554 | | | $ | 23,883 | | | $ | (30) | | | $ | 23,853 | | | $ | (17,738) | | | $ | (12,494) | | | $ | (30,232) | |
| Amounts reclassified from accumulated other comprehensive loss | | (39,123) | | | 2,865 | | | (36,258) | | | (319) | | | 6,441 | | | 6,122 | | | (5,541) | | | 6,722 | | | 1,181 | |
| Other comprehensive (loss)/income | | $ | (1,166) | | | $ | 4,462 | | | $ | 3,296 | | | $ | 23,564 | | | $ | 6,411 | | | $ | 29,975 | | | $ | (23,279) | | | $ | (5,772) | | | $ | (29,051) | |
The amounts reclassified from accumulated other comprehensive loss for the years ended December 31, 2022, 2021, and 2020 were as follows:
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Amount of (Gain)/Loss Reclassified from Accumulated Other Comprehensive Loss | | |
| | For the year ended December 31, | | Affected Line in Consolidated Statements of Operations |
| | 2022 | | 2021 | | 2020 | |
| Derivative instruments designated and qualifying as cash flow hedges: | | | | | | | | |
| Foreign currency forward contracts | | $ | (46,183) | | | $ | 9,281 | | | $ | (10,785) | | | Net revenue (1) |
| Foreign currency forward contracts | | (6,543) | | | (9,707) | | | 3,397 | | | Cost of revenue (1) |
| | | | | | | | |
| Total, before taxes | | (52,726) | | | (426) | | | (7,388) | | | Income before taxes |
| Income tax effect | | 13,603 | | | 107 | | | 1,847 | | | Provision for income taxes |
| Total, net of taxes | | $ | (39,123) | | | $ | (319) | | | $ | (5,541) | | | Net income |
| | | | | | | | |
| Defined benefit and retiree healthcare plans | | $ | 3,844 | | | $ | 8,268 | | | $ | 9,118 | | | Other, net |
| | | | | | | | |
| Total, before taxes | | 3,844 | | | 8,268 | | | 9,118 | | | Income before taxes |
| Income tax effect | | (979) | | | (1,827) | | | (2,396) | | | Provision for income taxes |
| Total, net of taxes | | $ | 2,865 | | | $ | 6,441 | | | $ | 6,722 | | | Net income |
__________________________
(1) Refer to Note 19: Derivative Instruments and Hedging Activities for additional information related to amounts to be reclassified from accumulated other comprehensive loss in future periods.
17. Leases
The table below shows right-of-use asset and lease liability amounts and the financial statement line item in which those amounts are presented:
| | | | | | | | | | | |
| As of December 31, |
| | 2022 | | 2021 |
| Operating lease right-of-use assets: | | | |
| Other assets | $ | 42,836 | | | $ | 44,118 | |
| Total operating lease right-of-use assets | $ | 42,836 | | | $ | 44,118 | |
| Operating lease liabilities: | | | |
| Accrued expenses and other current liabilities | $ | 9,971 | | | $ | 11,035 | |
| Other long-term liabilities | 32,721 | | | 35,741 | |
| Total operating lease liabilities | $ | 42,692 | | | $ | 46,776 | |
| Finance lease right-of-use assets: | | | |
| Property, plant and equipment, at cost | $ | 49,714 | | | $ | 49,714 | |
| Accumulated depreciation | (29,442) | | | (27,821) | |
| Property, plant and equipment, net | $ | 20,272 | | | $ | 21,893 | |
| Finance lease liabilities: | | | |
| Current portion of long-term debt, finance lease and other financing obligations | $ | 1,841 | | | $ | 2,203 | |
| Finance lease and other financing obligations, less current portion | 24,742 | | | 26,564 | |
| Total finance lease liabilities | $ | 26,583 | | | $ | 28,767 | |
The table below presents the lease liabilities arising from obtaining right-of-use assets in the years ended December 31, 2022 and 2021:
| | | | | | | | | | | |
| | For the year ended December 31, |
| | 2022 | | 2021 |
| Operating leases | $ | 4,230 | | | $ | 1,684 | |
| Finance leases | $ | 284 | | | $ | — | |
The table below presents our total lease cost for the years ended December 31, 2022, 2021, and 2020 (short-term lease cost was not material for any of the years presented):
| | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| | 2022 | | 2021 | | 2020 |
| Operating lease cost | $ | 14,900 | | | $ | 15,529 | | | $ | 16,658 | |
| | | | | |
| Finance lease cost: | | | | | |
| Amortization of right-of-use assets | $ | 1,621 | | | $ | 1,714 | | | $ | 1,794 | |
| Interest on lease liabilities | 2,339 | | | 2,477 | | | 2,565 | |
| Total finance lease cost | $ | 3,960 | | | $ | 4,191 | | | $ | 4,359 | |
The table below presents the cash paid related to our operating and finance leases for the years ended December 31, 2022, 2021, and 2020:
| | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| | 2022 | | 2021 | | 2020 |
| Operating cash outflow related to operating leases | $ | 15,498 | | | $ | 15,173 | | | $ | 16,489 | |
| Operating cash outflow related to finance leases | $ | 2,119 | | | $ | 2,372 | | | $ | 2,262 | |
| Financing cash outflow related to finance leases | $ | 2,423 | | | $ | 1,806 | | | $ | 944 | |
The table below presents the weighted-average remaining lease term of our operating and finance leases (in years) as of December 31, 2022:
| | | | | |
| | 2022 |
| Operating leases | 6.5 |
| Finance leases | 10.1 |
The table below presents our weighted-average discount rate as of December 31, 2022:
| | | | | |
| | 2022 |
| Operating leases | 5.2 | % |
| Finance leases | 8.7 | % |
The table below presents a maturity analysis of the obligations related to our operating lease liabilities and finance lease liabilities in effect as of December 31, 2022:
| | | | | | | | | | | |
| Year ending December 31, | Operating Leases | | Finance Leases |
| | | |
| 2023 | $ | 12,577 | | | $ | 3,845 | |
| 2024 | 10,973 | | | 3,832 | |
| 2025 | 7,893 | | | 3,893 | |
| 2026 | 4,727 | | | 3,952 | |
| 2027 | 3,058 | | | 4,016 | |
| Thereafter | 13,833 | | | 21,402 | |
| Total undiscounted cash flows related to lease liabilities | 53,061 | | | 40,940 | |
| Less imputed interest | (10,369) | | | (14,357) | |
| Total lease liabilities | $ | 42,692 | | | $ | 26,583 | |
18. Fair Value Measures
Our assets and liabilities recorded at fair value have been categorized based upon a fair value hierarchy in accordance with FASB ASC Topic 820. The levels of the fair value hierarchy are described below:
•Level 1 inputs utilize quoted prices (unadjusted) in active markets for identical assets and liabilities that we have the ability to access at the measurement date.
•Level 2 inputs utilize inputs, other than quoted prices included in Level 1, that are observable for the asset or liability, either directly or indirectly. Level 2 inputs include quoted prices for similar assets and liabilities in active markets, quoted prices in markets that are not active, and inputs other than quoted prices that are observable for the asset or liability, such as interest rates and yield curves that are observable at commonly quoted intervals.
•Level 3 inputs are unobservable inputs for the asset or liability, allowing for situations where there is little, if any, market activity for the asset or liability.
Measured on a Recurring Basis
Our assets and liabilities measured at fair value on a recurring basis as of as of December 31, 2022 and 2021 are shown in the below table. All fair value measures presented are categorized in Level 2 of the fair value hierarchy.
| | | | | | | | | | | |
| As of December 31, |
| | 2022 | | 2021 |
| Assets measured at fair value: | | | |
| Foreign currency forward contracts | $ | 31,126 | | | $ | 25,112 | |
| Commodity forward contracts | 4,181 | | | 2,979 | |
| Total assets measured at fair value | $ | 35,307 | | | $ | 28,091 | |
| Liabilities measured at fair value: | | | |
| Foreign currency forward contracts | $ | 9,866 | | | $ | 3,073 | |
| Commodity forward contracts | 4,671 | | | 4,492 | |
| Total liabilities measured at fair value | $ | 14,537 | | | $ | 7,565 | |
Refer to Note 2: Significant Accounting Policies for additional information related to the methods used to estimate the fair value of our financial instruments and Note 19: Derivative Instruments and Hedging Activities for additional information related to the inputs used to determine these fair value measurements and the nature of the risks that these derivative instruments are intended to mitigate.
Although we have determined that the majority of the inputs used to value our derivative instruments fall within Level 2 of the fair value hierarchy, the credit valuation adjustments associated with our derivatives utilize Level 3 inputs, such as estimates of current credit spreads, to appropriately reflect both our own non-performance risk and the respective counterparties' non-performance risk in the fair value measurement. As of December 31, 2022 and 2021, we have assessed the significance of the impact of the credit valuation adjustments on the overall valuation of our derivative positions and have determined that the credit valuation adjustments are not significant to the overall valuation of our derivatives. As a result, we have determined that our derivatives in their entirety are classified in Level 2 in the fair value hierarchy.
Quanergy
As of December 31, 2021, we held a $50.0 million investment in Quanergy Series B Preferred Stock (the "Series B Investment"). The Series B Investment did not have a readily determinable fair value and was held using the measurement alternative prescribed in FASB ASC Topic 321. On February 8, 2022, Quanergy merged with CITIC Capital Acquisition Corp, a special purpose acquisition corporation. On February 9, 2022, Quanergy was listed on the NYSE under the ticker symbol QNGY.
Upon completion of the merger, our investment in Quanergy was $75.1 million, consisting of a $50.0 million investment in common shares converted from the Series B Investment, a $7.5 million private investment in public equity, and 2.5 million warrants with a fair value of $17.6 million, each of which represented the right to purchase one common share of Quanergy at a price of $0.01 per share. We subsequently converted these warrants to common shares.
On October 6, 2022, Quanergy executed a 1-to-20 reverse stock split. Upon execution of the reverse stock split, our holdings of Quanergy common stock declined to approximately 0.4 million shares. As of December 31, 2022, the share price of Quanergy was $0.11 per share and we have marked the full investment to approximately zero, resulting in a mark-to-market loss of $75.1 million in the year ended December 31, 2022, which was recorded in other, net. Refer to Note 6: Other, Net for details of the components of other, net.
Measured on a Nonrecurring Basis
We evaluated our goodwill and other indefinite-lived intangible assets for impairment as of October 1, 2022. Refer to Note 11: Goodwill and Other Intangible Assets, Net for additional information. Based on these analyses, we determined that they were not impaired. As of December 31, 2022, no events or changes in circumstances occurred that would have triggered the need for an additional impairment review of goodwill or other indefinite-lived intangible assets.
In July 2022, we sold the Qinex Business. We allocated goodwill to the Qinex Business based on its fair value relative to the total fair value of the Industrial Solutions reporting unit. Refer to Note 21: Acquisitions and Divestitures for additional information.
Financial Instruments Not Recorded at Fair Value
The following table presents the carrying values and fair values of financial instruments not recorded at fair value in the consolidated balance sheets as of December 31, 2022 and 2021. All fair value measures presented are categorized within Level 2 of the fair value hierarchy.
| | | | | | | | | | | | | | | | | | | | | | | |
| As of December 31, |
| | 2022 | | 2021 |
| Carrying Value (1) | | Fair Value | | Carrying Value (1) | | Fair Value |
| Term Loan | $ | 446,834 | | | $ | 443,483 | | | $ | 451,465 | | | $ | 450,901 | |
4.875% Senior Notes | $ | — | | | $ | — | | | $ | 500,000 | | | $ | 526,250 | |
5.625% Senior Notes | $ | 400,000 | | | $ | 398,000 | | | $ | 400,000 | | | $ | 438,000 | |
5.0% Senior Notes | $ | 700,000 | | | $ | 684,250 | | | $ | 700,000 | | | $ | 759,500 | |
4.375% Senior Notes | $ | 450,000 | | | $ | 400,500 | | | $ | 450,000 | | | $ | 479,250 | |
3.75% Senior Notes | $ | 750,000 | | | $ | 626,250 | | | $ | 750,000 | | | $ | 747,188 | |
4.0% Senior Notes | $ | 1,000,000 | | | $ | 875,000 | | | $ | 1,000,000 | | | $ | 1,022,500 | |
5.875% Senior Notes | $ | 500,000 | | | $ | 473,750 | | | $ | — | | | $ | — | |
__________________________
(1) Excluding any related debt discounts, premiums, and deferred financing costs.
In addition to the above, we hold certain equity investments that do not have readily determinable fair values, for which we use the measurement alternative prescribed in FASB ASC Topic 321. Such investments are measured at cost, less any impairment, plus or minus changes resulting from observable price changes in orderly transactions for identical or similar investments of the same issuer. There were no impairments or changes resulting from observable transactions for any of these investments and no adjustments were made to their carrying values.
Refer to the table below for the carrying values of equity investments using the measurement alternative, which are presented as a component of other assets in the consolidated balance sheets.
| | | | | | | | | | | |
| As of December 31, |
| 2022 | | 2021 |
Quanergy Systems, Inc. (1) | $ | — | | | $ | 50,000 | |
| Other | 15,000 | | | 15,000 | |
| Total | $ | 15,000 | | | $ | 65,000 | |
_________________________
(1) As of December 31, 2022, Quanergy is no longer classified as an equity investment without a readily determinable fair value. See additional discussion under the heading Quanergy included elsewhere in this Note.
19. Derivative Instruments and Hedging Activities
We utilize derivative instruments that are designated and qualify as hedges of our exposure to variability in expected future cash flows. Hedge accounting generally provides for the matching of the timing of gain or loss recognition on these hedging instruments with the earnings effect of the hedged forecasted transactions. We may enter into other derivative contracts that are intended to economically hedge certain risks, even though we elect not to apply hedge accounting under FASB ASC Topic 815. Derivative financial instruments not designated as hedges are used to manage our exposure to certain risks, not for trading or speculative purposes. Refer to Note 2: Significant Accounting Policies for additional information related to the valuation techniques and accounting policies regarding derivative instruments and hedging activities.
Foreign Currency Risk
We are exposed to fluctuations in the values of certain foreign currencies relative to our functional currency, the USD. We enter into forward contracts to manage this exposure. We currently have outstanding foreign currency forward contracts that qualify as cash flow hedges intended to offset the effect of exchange rate fluctuations on forecasted sales and certain manufacturing costs. We also have outstanding foreign currency forward contracts that are intended to preserve the economic value of foreign currency denominated monetary assets and liabilities, which are not designated for hedge accounting treatment in accordance with FASB ASC Topic 815.
For each of the years ended December 31, 2022, 2021, and 2020, amounts excluded from the assessment of effectiveness of our foreign currency forward contracts that are designated as cash flow hedges were not material. As of December 31, 2022, we estimate that $20.5 million of net gains will be reclassified from accumulated other comprehensive loss to earnings during the twelve-month period ending December 31, 2023.
As of December 31, 2022, we had the following outstanding foreign currency forward contracts:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Notional
(in millions) | | Effective Date(s) | | Maturity Date(s) | | Index (Exchange Rates) | | Weighted- Average Strike Rate | | Hedge Designation (1) |
| 37.0 EUR | | December 28, 2022 | | January 31, 2023 | | Euro ("EUR") to USD | | 1.07 USD | | Not designated |
| 364.0 EUR | | Various from January 2021 to December 2022 | | Various from January 2023 to December 2024 | | EUR to USD | | 1.11 USD | | Cash flow hedge |
| 402.0 CNY | | December 27, 2022 | | January 31, 2023 | | USD to Chinese Renminbi ("CNY") | | 6.96 CNY | | Not designated |
| | | | | | | | | | |
| 655.0 JPY | | December 28, 2022 | | January 31, 2023 | | USD to Japanese Yen ("JPY") | | 133.01 JPY | | Not designated |
| 18,304.3 KRW | | Various from February 2021 to December 2022 | | Various from January 2023 to November 2024 | | USD to Korean Won ("KRW") | | 1,228.41 KRW | | Cash flow hedge |
| 24.0 MYR | | December 27, 2022 | | January 31, 2023 | | USD to Malaysian Ringgit ("MYR") | | 4.41 MYR | | Not designated |
| 83.0 MXN | | December 28, 2022 | | January 31, 2023 | | USD to Mexican Peso ("MXN") | | 19.53 MXN | | Not designated |
| 3,431.8 MXN | | Various from January 2021 to December 2022 | | Various from January 2023 to December 2024 | | USD to MXN | | 22.19 MXN | | Cash flow hedge |
| 6.3 GBP | | December 28, 2022 | | January 31, 2023 | | British Pound Sterling ("GBP") to USD | | 1.21 USD | | Not designated |
| 58.9 GBP | | Various from January 2021 to December 2022 | | Various from January 2023 to December 2024 | | GBP to USD | | 1.26 USD | | Cash flow hedge |
__________________________
(1) Derivative financial instruments not designated as hedges are used to manage our exposure to currency exchange rate risk. They are intended to preserve the economic value, and they are not used for trading or speculative purposes.
Commodity Risk
We enter into commodity forward contracts in order to limit our exposure to variability in raw material costs that is caused by movements in the price of underlying metals. The terms of these forward contracts fix the price at a future date for various notional amounts associated with these commodities. These instruments are not designated for hedge accounting treatment in accordance with FASB ASC Topic 815.
As of December 31, 2022, we had the following outstanding commodity forward contracts, none of which were designated for hedge accounting treatment in accordance with FASB ASC Topic 815:
| | | | | | | | | | | | | | | | | | | | |
| Commodity | | Notional | | Remaining Contracted Periods | | Weighted-Average
Strike Price Per Unit |
| Silver | | 972,101 troy oz. | | January 2023 to November 2024 | | $ | 23.24 | |
| Gold | | 7,894 troy oz. | | January 2023 to November 2024 | | $ | 1,861.63 | |
| Nickel | | 236,860 pounds | | January 2023 to November 2024 | | $ | 10.88 | |
| Aluminum | | 4,310,163 pounds | | January 2023 to November 2024 | | $ | 1.22 | |
| Copper | | 8,271,686 pounds | | January 2023 to November 2024 | | $ | 4.07 | |
| Platinum | | 10,820 troy oz. | | January 2023 to November 2024 | | $ | 986.14 | |
| Palladium | | 1,355 troy oz. | | January 2023 to November 2024 | | $ | 2,215.19 | |
Financial Instrument Presentation
The following table presents the fair value of our derivative financial instruments and their classification in the consolidated balance sheets as of December 31, 2022 and 2021:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | Asset Derivatives | | Liability Derivatives |
| | Balance Sheet
Location | | As of December 31, | | Balance Sheet
Location | | As of December 31, |
| | | | 2022 | | 2021 | | | 2022 | | 2021 |
| Derivatives designated as hedging instruments: | | | | | | | | | | |
| Foreign currency forward contracts | | Prepaid expenses and other current assets | | $ | 27,114 | | | $ | 20,562 | | | Accrued expenses and other current liabilities | | $ | 6,586 | | | $ | 1,981 | |
| Foreign currency forward contracts | | Other assets | | 3,763 | | | 4,391 | | | Other long-term liabilities | | 3,280 | | | 904 | |
| Total | | | | $ | 30,877 | | | $ | 24,953 | | | | | $ | 9,866 | | | $ | 2,885 | |
| Derivatives not designated as hedging instruments: | | | | | | | | | | |
| Commodity forward contracts | | Prepaid expenses and other current assets | | $ | 2,542 | | | $ | 2,583 | | | Accrued expenses and other current liabilities | | $ | 4,066 | | | $ | 3,422 | |
| Commodity forward contracts | | Other assets | | 1,639 | | | 396 | | | Other long-term liabilities | | 605 | | | 1,070 | |
| Foreign currency forward contracts | | Prepaid expenses and other current assets | | 249 | | | 159 | | | Accrued expenses and other current liabilities | | — | | | 188 | |
| Total | | | | $ | 4,430 | | | $ | 3,138 | | | | | $ | 4,671 | | | $ | 4,680 | |
These fair value measurements are all categorized within Level 2 of the fair value hierarchy. Refer to Note 18: Fair Value Measures for additional information related to the categorization of these fair value measurements within the fair value hierarchy.
The following tables present the effect of our derivative financial instruments on the consolidated statements of operations and the consolidated statements of comprehensive income for the years ended December 31, 2022 and 2021:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Derivatives designated as hedging instruments | | Amount of Deferred Gain/(Loss) Recognized in Other Comprehensive (Loss)/Income | | Location of Net Gain/(Loss) Reclassified from Accumulated Other Comprehensive Loss into Net Income | | Amount of Net Gain/(Loss) Reclassified from Accumulated Other Comprehensive Loss into Net Income |
| For the year ended December 31, | | | For the year ended December 31, |
| 2022 | | 2021 | | | 2022 | | 2021 |
| Foreign currency forward contracts | | $ | 39,173 | | | $ | 32,698 | | | Net revenue | | $ | 46,183 | | | $ | (9,281) | |
| Foreign currency forward contracts | | $ | 11,982 | | | $ | (601) | | | Cost of revenue | | $ | 6,543 | | | $ | 9,707 | |
| | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | |
| Derivatives not designated as hedging instruments | | Amount of (Loss)/Gain Recognized in Net Income | | Location of (Loss)/Gain Recognized in Net Income |
| For the year ended December 31, | |
| 2022 | | 2021 | |
| Commodity forward contracts | | $ | (3,350) | | | $ | (2,967) | | | Other, net |
| Foreign currency forward contracts | | $ | 4,324 | | | $ | (7,553) | | | Other, net |
Credit risk related contingent features
We have agreements with our derivative counterparties that contain a provision whereby if we default on our indebtedness and repayment of the indebtedness has been accelerated by the lender, then we could also be declared in default on our derivative obligations.
As of December 31, 2022, the termination value of outstanding derivatives in a liability position, excluding any adjustment for non-performance risk, was $14.8 million. As of December 31, 2022, we have not posted any cash collateral related to these agreements. If we breach any of the default provisions on any of our indebtedness as described above, we could be required to settle our obligations under the derivative agreements at their termination values.
20. Segment Reporting
We present financial information for two reportable segments, Performance Sensing and Sensing Solutions. The Performance Sensing reportable segment consists of two operating segments, Automotive and HVOR, each of which meet the criteria for aggregation in FASB ASC Topic 280, Segment Reporting. The Sensing Solutions reportable segment is also an operating segment.
Our operating segments are businesses that we manage as components of an enterprise, for which separate financial information is evaluated regularly by our chief operating decision maker in deciding how to allocate resources and assess performance.
An operating segment’s performance is primarily evaluated based on segment operating income, which excludes amortization of intangible assets, restructuring and other charges, net, certain costs associated with our strategic megatrend initiatives, and certain corporate costs or credits not associated with the operations of the segment, including share-based compensation expense and a portion of depreciation expense associated with assets recognized in connection with acquisitions. Corporate and other costs excluded from an operating (and reportable) segment’s performance are separately stated below and also include costs that are related to functional areas such as finance, IT, legal, and human resources. We believe that segment operating income, as defined above, is an appropriate measure for evaluating the operating performance of our segments. However, this measure should be considered in addition to, and not as a substitute for, or superior to, operating income or other measures of financial performance prepared in accordance with U.S. GAAP. The accounting policies of each of our operating and reportable segments are materially consistent with those described in Note 2: Significant Accounting Policies.
The Performance Sensing segment serves the automotive and HVOR industries through the development and manufacture of sensors, high-voltage solutions (i.e., electrical protection components), and other solutions that are used in mission-critical systems and applications. Examples include those used in subsystems of automobiles, on-road trucks, and off-road equipment, such as tire pressure monitoring, thermal management, electrical protection, regenerative braking, powertrain (engine/transmission), exhaust management, and operator controls. These products are used in subsystems that, among other things, improve operating performance and efficiency, contribute to environmentally sustainable and safe solutions, and provide data-driven insight, connectivity, and prognostics to commercial fleet operators and asset managers.
For fleet transportation and logistics customers and end users, the Performance Sensing Segment provide hardware and services that enable a variety of end-use applications, including vehicle tracking and on-board vehicle diagnostic data to monitor vehicle health; the provision of vehicle data to enable usage-based insurance offerings; cargo capacity data for trailers that increase the operational efficiency of fleets; video telematics offerings that provide event analysis and in-cab monitoring to prevent and lower the cost of incidents; and visibility to where assets are located across the supply chain.
The Sensing Solutions segment primarily serves the industrial and aerospace industries through the development and manufacture of a broad portfolio of application-specific sensor and electrical protection products used in a diverse range of industrial markets, including the appliance, HVAC, water management, operator controls, charging infrastructure, renewable energy generation, green hydrogen production, and microgrid applications and markets, as well as the aerospace market, including commercial aircraft, defense, and aftermarket markets.
Some of the products and solutions the segment sells include pressure, temperature, and position sensors, motor and compressor protectors, high-voltage contactors, solid state relays, bimetal electromechanical controls, power inverters, charge controllers, battery management systems, operator controls, and power conversion systems. Sensing Solutions products perform many functions, including prevention of damage from excess heat or electrical current, optimization of system performance, low-power circuit control, renewable energy generation, and power conversion from direct current ("DC") power to alternating current ("AC") power.
The following table presents net revenue and segment operating income for the reportable segments and other operating results not allocated to the reportable segments for the years ended December 31, 2022, 2021, and 2020:
| | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| | 2022 | | 2021 | | 2020 |
| Net revenue: | | | | | |
| Performance Sensing | $ | 2,976,756 | | | $ | 2,847,908 | | | $ | 2,223,810 | |
| Sensing Solutions | 1,052,506 | | | 972,898 | | | 821,768 | |
| Total net revenue | $ | 4,029,262 | | | $ | 3,820,806 | | | $ | 3,045,578 | |
| Segment operating income (as defined above): | | | | | |
| Performance Sensing | $ | 751,640 | | | $ | 777,237 | | | $ | 532,529 | |
| Sensing Solutions | 300,015 | | | 293,185 | | | 241,218 | |
| Total segment operating income | 1,051,655 | | | 1,070,422 | | | 773,747 | |
| Corporate and other | (294,429) | | | (288,111) | | | (273,367) | |
| Amortization of intangible assets | (153,787) | | | (134,129) | | | (129,549) | |
| Restructuring and other charges, net | 66,700 | | | (14,942) | | | (33,094) | |
| Operating income | 670,139 | | | 633,240 | | | 337,737 | |
| Interest expense, net | (178,819) | | | (179,291) | | | (171,757) | |
| Other, net | (94,618) | | | (40,032) | | | (339) | |
| Income before taxes | $ | 396,702 | | | $ | 413,917 | | | $ | 165,641 | |
No customer exceeded 10% of our net revenue in any of the periods presented.
The following table presents net revenue by product category for the years ended December 31, 2022, 2021, and 2020:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Performance Sensing | | Sensing Solutions | | For the year ended December 31, |
| | | | 2022 | | 2021 | | 2020 |
| Net revenue: | | | | | | | | | |
| Sensors | X | | X | | $ | 2,887,063 | | | $ | 2,952,485 | | | $ | 2,380,608 | |
| Electrical protection | X | | X | | 710,483 | | | 635,141 | | | 504,001 | |
| Other | X | | X | | 431,716 | | | 233,180 | | | 160,969 | |
| Net revenue | | | | | $ | 4,029,262 | | | $ | 3,820,806 | | | $ | 3,045,578 | |
__________________________
(1) Beginning in the year ended December 31, 2022, we adjusted our product categories to better reflect how we currently view our products. Vehicle area networks and data collection devices and software, products used in our Sensata INSIGHTS business, have been recast from the sensors product category to the other product category. As a result, approximately $74.7 million of revenue in the year ended December 31, 2021 has been recast in the table above from the sensors product category to other. There was no revenue related to these products in the year ended December 31, 2020. The other product category included $173.3 million of revenue related to the Sensata INSIGHTS business in the year ended December 31, 2022
The following table presents depreciation and amortization expense for our reportable segments for the years ended December 31, 2022, 2021, and 2020:
| | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| | 2022 | | 2021 | | 2020 |
| Depreciation and amortization: | | | | | |
| Performance Sensing | $ | 97,063 | | | $ | 91,591 | | | $ | 91,522 | |
| Sensing Solutions | 16,380 | | | 16,334 | | | 16,564 | |
Corporate and other (1) | 167,528 | | | 151,163 | | | 147,143 | |
| Total depreciation and amortization | $ | 280,971 | | | $ | 259,088 | | | $ | 255,229 | |
__________________________
(1)Included within corporate and other is depreciation and amortization expense associated with the fair value step-up recognized in acquisitions and accelerated depreciation recognized in connection with restructuring actions. We do not allocate the additional depreciation and amortization expense associated with the step-up in the fair value of the PP&E and
intangible assets associated with these acquisitions or accelerated depreciation related to restructuring actions to our segments. This treatment is consistent with the financial information reviewed by our chief operating decision maker.
The following table presents total assets for our reportable segments as of December 31, 2022 and 2021:
| | | | | | | | | | | |
| As of December 31, |
| 2022 | | 2021 |
| Assets: | | | |
| Performance Sensing | $ | 1,747,768 | | | $ | 1,605,313 | |
| Sensing Solutions | 631,052 | | | 555,135 | |
Corporate and other (1) | 6,377,400 | | | 6,453,318 | |
| Total assets | $ | 8,756,220 | | | $ | 8,613,766 | |
__________________________
(1)The following is included within corporate and other as of December 31, 2022 and 2021: goodwill of $3,911.2 million and $3,502.1 million, respectively; other intangible assets, net of $999.7 million and $946.7 million, respectively; cash and cash equivalents of $1,225.5 million and $1,709.0 million, respectively; and PP&E, net of $43.3 million and $41.8 million, respectively. This treatment is consistent with the financial information reviewed by our chief operating decision maker.
The following table presents additions to PP&E and capitalized software for our reportable segments for the years ended December 31, 2022, 2021, and 2020:
| | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| | 2022 | | 2021 | | 2020 |
| Additions to property, plant and equipment and capitalized software: | | | | | |
| Performance Sensing | $ | 110,101 | | | $ | 104,220 | | | $ | 79,252 | |
| Sensing Solutions | 19,681 | | | 20,559 | | | 16,885 | |
| Corporate and other | 20,282 | | | 19,624 | | | 10,582 | |
| Total additions to property, plant and equipment and capitalized software | $ | 150,064 | | | $ | 144,403 | | | $ | 106,719 | |
Geographic Area Information
The following tables present net revenue by geographic area and by significant country for the years ended December 31, 2022, 2021, and 2020. In these tables, net revenue is aggregated according to the location of our subsidiaries.
| | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| | 2022 | | 2021 | | 2020 |
| Net revenue: | | | | | |
| Americas | $ | 1,705,222 | | | $ | 1,450,658 | | | $ | 1,197,846 | |
| Europe | 1,045,031 | | | 1,003,204 | | | 816,287 | |
| Asia and rest of world | 1,279,009 | | | 1,366,944 | | | 1,031,445 | |
| Net revenue | $ | 4,029,262 | | | $ | 3,820,806 | | | $ | 3,045,578 | |
| | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| | 2022 | | 2021 | | 2020 |
| Net revenue: | | | | | |
| United States | $ | 1,563,616 | | | $ | 1,311,878 | | | $ | 1,082,671 | |
| China | 818,974 | | | 871,667 | | | 641,516 | |
| The Netherlands | 810,069 | | | 621,658 | | | 482,020 | |
| Korea | 159,239 | | | 191,045 | | | 172,229 | |
| United Kingdom | 119,109 | | | 120,686 | | | 122,403 | |
| All other | 558,255 | | | 703,872 | | | 544,739 | |
| Net revenue | $ | 4,029,262 | | | $ | 3,820,806 | | | $ | 3,045,578 | |
The following tables present PP&E, net, by geographic area and by significant country as of December 31, 2022 and 2021. In these tables, PP&E, net is aggregated based on the location of our subsidiaries.
| | | | | | | | | | | |
| | As of December 31, |
| | 2022 | | 2021 |
| Property, plant and equipment, net: | | | |
| Americas | $ | 283,189 | | | $ | 264,901 | |
| Europe | 168,271 | | | 180,524 | |
| Asia and rest of world | 389,359 | | | 375,508 | |
| Property, plant and equipment, net | $ | 840,819 | | | $ | 820,933 | |
| | | | | | | | | | | |
| | As of December 31, |
| | 2022 | | 2021 |
| Property, plant and equipment, net: | | | |
| United States | $ | 111,270 | | | $ | 108,590 | |
| China | 294,408 | | | 285,516 | |
| Mexico | 171,749 | | | 156,132 | |
| Bulgaria | 127,171 | | | 138,564 | |
| United Kingdom | 29,640 | | | 32,345 | |
| Malaysia | 90,584 | | | 85,154 | |
| All other | 15,997 | | | 14,632 | |
| Property, plant and equipment, net | $ | 840,819 | | | $ | 820,933 | |
21. Acquisitions and Divestitures
Acquisitions
The following discussion relates to our acquisitions during the years ended December 31, 2022 and 2021. Refer to Note 11: Goodwill and Other Intangible Assets, Net for additional discussion of our consolidated goodwill and other intangible assets, net balances.
Xirgo
On April 1, 2021, we acquired all of the equity interests in Xirgo, a leading telematics and data insights provider across the fleet transportation and logistics segments, headquartered in Camarillo, California, for an aggregate cash purchase price of $401.7 million. The product offerings and technology of Xirgo will augment our existing portfolio in advancing our Insights/IoT megatrend initiative, and greatly expands our ability to provide data insights to fleet transportation and logistics customers, by serving telematics service providers, fleet management solution providers, and fleet operators themselves. Xirgo brings a comprehensive suite of telematics and asset tracking devices, cloud-based data insight solutions, as well as emerging cargo capacity and video sensing applications and data services. We are integrating Xirgo into our Performance Sensing reportable segment. The allocation of the purchase price related to this acquisition was finalized in the fourth quarter of 2021.
Spear
On November 19, 2021, we acquired all of the equity interests in Spear Power Systems ("Spear"), a leader in electrification solutions that supports our newly established Clean Energy Solutions business unit, for an aggregate purchase price of $113.7 million, subject to certain post-closing items, including a contingent consideration arrangement whereby we may be required to pay up to an additional $30.0 million to the selling shareholders. Using a present value technique, we estimated the acquisition-date fair value of the contingent consideration arrangement to be $8.6 million, which is reflected in the aggregate purchase price. In the year ended December 31, 2022, we evaluated updated financial forecasts and determined that the fair value of the contingent consideration arrangement as of December 31, 2022 is zero. Accordingly, a gain of $8.6 million for the year ended December 31, 2022 was recognized in earnings and presented in restructuring and other charges, net. We are integrating Spear into the Sensing Solutions reportable segment.
Spear is headquartered in Grandview, Missouri, and develops next generation scalable lithium-ion battery storage systems for demanding land, sea, and air applications. The acquisition of Spear advances Sensata’s Electrification portfolio and strategy into new clean energy markets. Spear expands on Sensata’s acquisition of Lithium Balance in battery management systems and GIGAVAC in high-voltage contactors and provides energy storage solutions for OEMs and system integrators in fast-growing end markets that offer significant growth opportunities.
The allocation of the purchase price related to this acquisition was finalized in the fourth quarter of 2022. The following table summarizes the allocation of the purchase price to the estimated fair values of the assets acquired and liabilities assumed:
| | | | | | | | |
| Net working capital, excluding cash | | $ | 404 | |
| Property, plant and equipment | | 5,317 | |
| Goodwill | | 76,307 | |
| Other intangible assets | | 30,500 | |
| Other assets | | 421 | |
| Deferred income tax liabilities | | (3,287) | |
| Other long-term liabilities | | (525) | |
| Fair value of net assets acquired, excluding cash and cash equivalents | | 109,137 | |
| Cash and cash equivalents | | 4,547 | |
| Fair value of net assets acquired | | $ | 113,684 | |
The goodwill recognized as a result of this acquisition represents future economic benefits expected to arise from synergies from combining operations and the extension of existing customer relationships. This goodwill will not be deductible for tax purposes.
In connection with the allocation of purchase price to the assets acquired and liabilities assumed, we identified certain definite-lived intangible assets. The following table presents the acquired intangible assets, their estimated fair values, and weighted-average lives:
| | | | | | | | | | | | | | |
| | Acquisition Date Fair Value | | Weighted-Average Lives (years) |
| Acquired definite-lived intangible assets | | | | |
| Customer relationships | | $ | 6,200 | | | 11 |
| Completed technologies | | 22,400 | | | 13 |
| Tradenames | | 1,900 | | | 10 |
| | | | |
| Total definite-lived intangible assets acquired | | $ | 30,500 | | | 12 |
These definite-lived intangible assets were valued using the income approach. We primarily used the relief-from-royalty method to value completed technologies and tradenames, and we used the multi-period excess earnings method to value customer relationships. These valuation methods incorporate assumptions including expected discounted future net cash flows resulting from either the future estimated after-tax royalty payments avoided as a result of owning the completed technologies or the future earnings related to existing customer relationships.
SmartWitness
On November 19, 2021, we acquired all of the equity interests of SmartWitness, an innovator of video telematics technology for heavy- and light-duty fleets, for an aggregate cash purchase price of $205.5 million, including $204.2 million of cash paid at closing, subject to certain post-closing items. In addition to the aggregate purchase price, we paid $8.6 million of cash at closing related to an employee retention arrangement. We are integrating SmartWitness into the Performance Sensing reportable segment.
SmartWitness is headquartered in Schaumburg, Illinois and expands the capabilities of Sensata INSIGHTS into high growth video telematics applications, providing access to applications that will drive adoption of traditional and video telematics solutions.
The allocation of the purchase price related to this acquisition was finalized in the fourth quarter of 2022. The following table summarizes the allocation of the purchase price to the estimated fair values of the assets acquired and liabilities assumed:
| | | | | | | | |
| Net working capital, excluding cash | | $ | 6,106 | |
| Property, plant and equipment | | 317 | |
| Goodwill | | 129,210 | |
| Other intangible assets | | 76,800 | |
| Deferred income tax assets | | 1,444 | |
| Other assets | | 115 | |
| Deferred income tax liabilities | | (17,920) | |
| Other long-term liabilities | | (100) | |
| Fair value of net assets acquired, excluding cash and cash equivalents | | 195,972 | |
| Cash and cash equivalents | | 9,518 | |
| Fair value of net assets acquired | | $ | 205,490 | |
The goodwill recognized as a result of this acquisition represents future economic benefits expected to arise from synergies from combining operations and the extension of existing customer relationships. This goodwill will not be deductible for tax purposes.
In connection with the allocation of purchase price to the assets acquired and liabilities assumed, we identified certain definite-lived intangible assets. The following table presents the acquired intangible assets, their estimated fair values, and weighted-average lives:
| | | | | | | | | | | | | | |
| | Acquisition Date Fair Value | | Weighted-Average Lives (years) |
| Acquired definite-lived intangible assets | | | | |
| Customer relationships | | $ | 24,100 | | | 16 |
| Completed technologies | | 52,000 | | | 10 |
| Tradenames | | 700 | | | 6 |
| | | | |
| Total definite-lived intangible assets acquired | | $ | 76,800 | | | 12 |
These definite-lived intangible assets were valued using the income approach. We primarily used the relief-from-royalty method to value completed technologies and tradenames, and we used the multi-period excess earnings method to value customer relationships. These valuation methods incorporate assumptions including expected discounted future net cash flows resulting from either the future estimated after-tax royalty payments avoided as a result of owning the completed technologies or the future earnings related to existing customer relationships.
Elastic M2M
On February 11, 2022, we acquired all of the equity interests of Elastic M2M, Inc. ("Elastic M2M") for an aggregate cash purchase price of $51.6 million, subject to certain post-closing items. In addition to the aggregate cash purchase price, the previous shareholders of Elastic M2M are entitled to up to $30.0 million of additional acquisition-related incentive compensation, pending the completion of certain technical milestones in fiscal year 2022 and achievement of financial targets in fiscal years 2022 and 2023. In the twelve months ended December 31, 2022, we recognized $24.7 million of that acquisition-related incentive compensation in restructuring and other charges, net. In the twelve months ended December 31, 2022, we paid $15.0 million of this acquisition-related incentive compensation, which is reflected as an operating cash outflow on our consolidated statement of cash flows.
Elastic M2M is an innovator of connected intelligence for operational assets across heavy-duty transport, warehouse, supply chain and logistics, industrial, light-duty passenger car, and a variety of other industry segments. Elastic M2M primarily serves telematics service providers and resellers, enabling them to leverage Elastic M2M’s cloud platform and analytics capabilities to deliver sensor-based operational insights to their end users. This acquisition augments our cloud capabilities critical to delivering actionable sensor-based insights, an increasingly important capability in this fast-growing industry segment. We are integrating Elastic M2M into the Performance Sensing reportable segment.
The following table summarizes the preliminary allocation of the purchase price to the estimated fair values of the assets acquired and liabilities assumed:
| | | | | | | | |
| Net working capital, excluding cash | | $ | 35 | |
| Goodwill | | 28,211 | |
| Other intangible assets | | 27,700 | |
| Deferred income tax liabilities | | (5,925) | |
| Fair value of net assets acquired, excluding cash and cash equivalents | | 50,021 | |
| Cash and cash equivalents | | 1,597 | |
| Fair value of net assets acquired | | $ | 51,618 | |
The allocation of purchase price of Elastic M2M is preliminary and is based on management’s judgments after evaluating several factors, including preliminary valuation assessments of intangible assets. The final allocation of the purchase price to the assets acquired will be completed when the final valuations are completed. The preliminary goodwill recognized as a result of this acquisition represents future economic benefits expected to arise from synergies from combining operations and the extension of existing customer relationships. The goodwill recognized in this acquisition will not be deductible for tax purposes.
In connection with the preliminary allocation of purchase price to the assets acquired and liabilities assumed, we identified certain definite-lived intangible assets. The following table presents the acquired intangible assets, their preliminary estimated fair values, and weighted-average lives:
| | | | | | | | | | | | | | |
| | Acquisition Date Fair Value | | Weighted-Average Lives (years) |
| Acquired definite-lived intangible assets | | | | |
| Customer relationships | | $ | 17,500 | | | 13 |
| Completed technologies | | 10,200 | | | 10 |
| Total definite-lived intangible assets acquired | | $ | 27,700 | | | 12 |
The definite-lived intangible assets were valued using the income approach. We primarily used the relief-from-royalty method to value completed technologies, and we used the multi-period excess earnings method to value customer relationships. These valuation methods incorporate assumptions including expected discounted future net cash flows resulting from either the future estimated after-tax royalty payments avoided as a result of owning the completed technologies or the future earnings related to existing customer relationships.
Dynapower
On July 12, 2022, we completed the acquisition of all of the equity interests of DP Acquisition Corp ("Dynapower"), a leader in power conversion systems, including inverters, converters, and rectifiers for renewable energy generation, green hydrogen production, electric vehicle charging stations, and microgrid applications, as well as industrial and defense applications, for an aggregate cash purchase price of $577.5 million, subject to certain post-closing items. Dynapower also provides aftermarket sales and service to maintain its equipment in the field. Dynapower is a foundational addition to our Clean Energy Solutions strategy and will complement our recent acquisitions of GIGAVAC, Lithium Balance, and Spear. We are integrating Dynapower into our Sensing Solutions reportable segment.
The following table summarizes the preliminary allocation of the purchase price to the estimated fair values of the assets acquired and liabilities assumed:
| | | | | | | | |
| Net working capital, excluding cash | | $ | 13,365 | |
| Property, plant and equipment | | 1,846 | |
| Goodwill | | 418,379 | |
| Other intangible assets | | 164,400 | |
| Other assets | | 1,656 | |
| Deferred income tax liabilities | | (25,548) | |
| Other liabilities | | (1,035) | |
| Fair value of net assets acquired, excluding cash and cash equivalents | | 573,063 | |
| Cash and cash equivalents | | 4,410 | |
| Fair value of net assets acquired | | $ | 577,473 | |
The allocation of purchase price of Dynapower is preliminary and is based on management’s judgments after evaluating several factors, including preliminary valuation assessments of intangible assets. We recorded certain measurement period adjustments in the fourth quarter of 2022 and further adjustments may be required until the allocation of purchase price is final. The final allocation of the purchase price to the assets acquired will be completed when the final valuations are completed. The preliminary goodwill recognized as a result of this acquisition represents future economic benefits expected to arise from synergies from combining operations and the extension of existing customer relationships. The goodwill recognized in this acquisition will not be deductible for tax purposes.
In connection with the preliminary allocation of purchase price to the assets acquired and liabilities assumed, we identified certain definite-lived intangible assets. The following table presents the acquired intangible assets, their estimated fair values, and weighted-average lives:
| | | | | | | | | | | | | | |
| | Acquisition Date Fair Value | | Weighted-Average Lives (years) |
| Acquired definite-lived intangible assets | | | | |
| Customer relationships | | $ | 37,000 | | | 13 |
| Backlog | | 7,100 | | | 2 |
| Completed technologies | | 86,100 | | | 12 |
| Tradenames | | 34,200 | | | 18 |
| Total definite-lived intangible assets acquired | | $ | 164,400 | | | 13 |
The definite-lived intangible assets were valued using the income approach. We primarily used the relief-from-royalty method to value completed technologies and tradenames, and we used the multi-period excess earnings method to value customer relationships. These valuation methods incorporate assumptions including expected discounted future net cash flows resulting from either the future estimated after-tax royalty payments avoided as a result of owning the completed technologies or the future earnings related to existing customer relationships.
Divestiture - Qinex Business
On May 27, 2022, we executed an asset purchase agreement (the "APA") whereby we agreed to sell the Qinex Business to LTI Holdings, Inc. ("LTI") in exchange for consideration of approximately $219.0 million, subject to working capital and other adjustments. Concurrent with the execution of the APA, the parties entered into a Contract Manufacturing Agreement ("CMA") and a Transition Services Agreement ("TSA"), each for nominal consideration.
The CMA commenced at closing of the transaction ("Closing") and has a term of either six or nine months, depending on the manufacturing site. LTI also has the option of extending each contract for an additional three months. The period from Closing to the end of the CMA term (including extensions, if any) is referred to as the "Transition Period." The terms of the CMA require that we provide manufacturing and distribution services for the Transition Period. The TSA commences at Closing and has a term that varies depending on the nature of the support services, ranging from one month to the entirety of the Transition Period. The terms of the TSA require that we provide various forms of commercial, operational, and back-office support to LTI.
Closing occurred in July 2022, at which time assets of approximately $70 million (including allocated goodwill of $45 million) and liabilities of approximately $2 million transferred to LTI. Transferred assets and liabilities excluded inventories and accounts payable, which will transfer to LTI at the end of the Transition Period. We received cash consideration of $198.8 million at Closing, which is presented as an investing cash flow for the twelve months ended December 31, 2022. Cash consideration received at Closing excludes amounts held in escrow until various milestones are met through the Transition Period. We received an additional $5.0 million in August 2022 following fulfillment of a portion of our TSA obligations, which is presented as an operating cash inflow.
In the twelve months ended December 31, 2022, we recognized a pre-tax gain of approximately $135.1 million and transaction-related charges of approximately $8.2 million. The gain on sale and transaction-related charges are each presented in restructuring and other charges, net in our consolidated statements of operations for the year ended December 31, 2022. Refer to Note 5: Restructuring and Other Charges, Net for additional information.
The Qinex Business manufactures semiconductor burn-in test sockets and thermal control solutions and was formed through the combination of Sensata’s semiconductor interconnect business with Wells-CTI in 2012. The Qinex Business was included in our Sensing Solutions segment (and Industrial Solutions reporting unit). We allocated goodwill to the Qinex Business based on its fair value relative to the total fair value of the Industrial Solutions reporting unit.
22. Subsequent Events
On February 6, 2023, we prepaid $250.0 million of principal on the outstanding Term Loan balance. As a result, we have reflected $250.0 million of long-term debt related to the Term loan in current portion of long-term debt on our consolidated balance sheet as of December 31, 2022. Refer to Note 14: Debt for additional information.
SCHEDULE I—CONDENSED FINANCIAL INFORMATION OF THE REGISTRANT
SENSATA TECHNOLOGIES HOLDING PLC
(Parent Company Only)
Balance Sheets
(In thousands)
| | | | | | | | | | | |
| As of December 31, |
| 2022 | | 2021 |
| Assets | | | |
| Current assets: | | | |
| Cash and cash equivalents | $ | 1,227 | | | $ | 1,858 | |
| Intercompany receivables | 8,291 | | | 2,662 | |
| Intercompany notes receivable from subsidiaries | 203,844 | | | 290,944 | |
| Prepaid expenses and other current assets | 1,998 | | | 2,288 | |
| Total current assets | 215,360 | | | 297,752 | |
| Deferred income tax assets | 436 | | | 462 | |
| Other non-current assets | — | | | 49 | |
| Investment in subsidiaries | 2,911,358 | | | 2,955,727 | |
| Total assets | $ | 3,127,154 | | | $ | 3,253,990 | |
| Liabilities and shareholders’ equity | | | |
| Current liabilities: | | | |
| Accounts payable | $ | 1,075 | | | $ | 443 | |
| Intercompany accounts payable to subsidiaries | 13,814 | | | 7,264 | |
| Intercompany notes payable to subsidiaries | — | | | 149,208 | |
| Accrued expenses and other current liabilities | 1,458 | | | 2,341 | |
| Total current liabilities | 16,347 | | | 159,256 | |
| | | |
| Total liabilities | 16,347 | | | 159,256 | |
| Total shareholders’ equity | 3,110,807 | | | 3,094,734 | |
| Total liabilities and shareholders’ equity | $ | 3,127,154 | | | $ | 3,253,990 | |
The accompanying notes are an integral part of these condensed financial statements.
SENSATA TECHNOLOGIES HOLDING PLC
(Parent Company Only)
Statements of Operations
(In thousands)
| | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| | 2022 | | 2021 | | 2020 |
| Net revenue | $ | — | | | $ | — | | | $ | — | |
| Operating costs and expenses: | | | | | |
| Selling, general and administrative | 15,489 | | | 13,687 | | | 12,477 | |
| Total operating costs and expenses | 15,489 | | | 13,687 | | | 12,477 | |
| Loss from operations | (15,489) | | | (13,687) | | | (12,477) | |
| Intercompany dividend income | 400,000 | | | 200,000 | | | — | |
| Intercompany interest income/(expense), net | 140 | | | (315) | | | (479) | |
| Other intercompany, net | 859 | | | — | | | — | |
| Other, net | 141 | | | (215) | | | 115 | |
| Net income/(loss) before income taxes and equity in net income of subsidiaries | 385,651 | | | 185,783 | | | (12,841) | |
| Equity in net (loss)/income of subsidiaries | (77,704) | | | 175,663 | | | 182,733 | |
| Benefit from/(provision for) income taxes | 2,738 | | | 2,134 | | | (5,606) | |
| Net income | $ | 310,685 | | | $ | 363,580 | | | $ | 164,286 | |
The accompanying notes are an integral part of these condensed financial statements.
SENSATA TECHNOLOGIES HOLDING PLC
(Parent Company Only)
Statements of Comprehensive Income
(In thousands)
| | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| | 2022 | | 2021 | | 2020 |
| Net income | $ | 310,685 | | | $ | 363,580 | | | $ | 164,286 | |
| Other comprehensive income/(loss), net of tax: | | | | | |
| | | | | |
| Subsidiaries' other comprehensive income/(loss) | 3,296 | | | 29,975 | | | (29,051) | |
| Other comprehensive income/(loss) | 3,296 | | | 29,975 | | | (29,051) | |
| Comprehensive income | $ | 313,981 | | | $ | 393,555 | | | $ | 135,235 | |
The accompanying notes are an integral part of these condensed financial statements.
SENSATA TECHNOLOGIES HOLDING PLC
(Parent Company Only)
Statements of Cash Flows
(In thousands)
| | | | | | | | | | | | | | | | | |
| | For the year ended December 31, |
| | 2022 | | 2021 | | 2020 |
| Net cash used in operating activities | $ | (9,455) | | | $ | (15,959) | | | $ | (7,911) | |
| Cash flows from investing activities: | | | | | |
| Intercompany loans | — | | | (224,972) | | | — | |
| Dividends received from subsidiary | 400,000 | | | 200,000 | | | — | |
| Net cash provided by/(used in) investing activities | 400,000 | | | (24,972) | | | — | |
| Cash flows from financing activities: | | | | | |
| Proceeds from exercise of stock options and issuance of ordinary shares | 22,803 | | | 26,290 | | | 15,457 | |
| (Payments on)/proceeds from intercompany borrowings | (62,108) | | | 72,726 | | | 30,966 | |
| Dividends paid | (51,072) | | | — | | | — | |
| Payments to repurchase ordinary shares | (292,274) | | | (47,843) | | | (35,175) | |
| Payments of employee restricted stock tax withholdings | (8,525) | | | (9,048) | | | (2,911) | |
| Net cash (used in)/provided by financing activities | (391,176) | | | 42,125 | | | 8,337 | |
| Net change in cash and cash equivalents | (631) | | | 1,194 | | | 426 | |
| Cash and cash equivalents, beginning of year | 1,858 | | | 664 | | | 238 | |
| Cash and cash equivalents, end of year | $ | 1,227 | | | $ | 1,858 | | | $ | 664 | |
The accompanying notes are an integral part of these condensed financial statements.
1. Basis of Presentation and Description of Business
Sensata Technologies Holding plc (Parent Company)—Schedule I—Condensed Financial Information of Sensata Technologies Holding plc ("Sensata plc"), included in this Annual Report on Form 10-K (this "Report"), provides all parent company information that is required to be presented in accordance with the U.S. Securities and Exchange Commission ("SEC") rules and regulations for financial statement schedules. The accompanying condensed financial statements have been prepared in accordance with the reduced disclosure requirements permitted by the SEC. Sensata plc and subsidiaries' audited consolidated financial statements and accompanying notes thereto (the "Consolidated Financial Statements") are included elsewhere in this Report.
Sensata plc conducts limited separate operations and acts primarily as a holding company. Sensata plc has no direct outstanding debt obligations. However, Sensata Technologies B.V., an indirect, wholly-owned subsidiary of Sensata plc, is limited in its ability to pay dividends or otherwise make distributions to its immediate parent company and, ultimately, to Sensata plc, under its Senior Secured Credit Facilities and the indentures governing its senior notes. For a discussion of the debt obligations of the subsidiaries of Sensata plc, refer to Note 14: Debt of the Consolidated Financial Statements included elsewhere in this Report.
All U.S. dollar amounts presented except per share amounts are stated in thousands, unless otherwise indicated.
2. Commitments and Contingencies
For a discussion of the commitments and contingencies of the subsidiaries of Sensata plc, refer to Note 15: Commitments and Contingencies of the Consolidated Financial Statements included elsewhere in this Report.
SCHEDULE II—VALUATION AND QUALIFYING ACCOUNTS
(In thousands)
| | | | | | | | | | | | | | | | | | | | | | | |
| | Balance at the
Beginning of
the Period | | Additions | | Deductions | | Balance at the End of
the Period |
Charged, Net of Reversals,
to Expenses/Against Revenue | |
| For the year ended December 31, 2022 | | | | | | | |
| Accounts receivable allowances | $ | 17,003 | | | $ | 8,531 | | | $ | (1,288) | | | $ | 24,246 | |
| For the year ended December 31, 2021 | | | | | | | |
| Accounts receivable allowances | $ | 19,033 | | | $ | (813) | | | $ | (1,217) | | | $ | 17,003 | |
| For the year ended December 31, 2020 | | | | | | | |
| Accounts receivable allowances | $ | 15,129 | | | $ | 5,654 | | | $ | (1,750) | | | $ | 19,033 | |
ITEM 9.CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
None.
ITEM 9A. CONTROLS AND PROCEDURES
The required certifications of our Chief Executive Officer, Chief Financial Officer, and Chief Accounting Officer are included as Exhibits 31.1, 31.2, and 31.3 to this Annual Report on Form 10-K. The disclosures set forth in this Item 9A contain information concerning the evaluation of our disclosure controls and procedures, management's report on internal control over financial reporting, and changes in internal control over financial reporting referred to in these certifications. These certifications should be read in conjunction with this Item 9A for a more complete understanding of the matters covered by the certifications.
Evaluation of Disclosure Controls and Procedures
With the participation of our Chief Executive Officer, Chief Financial Officer, and Chief Accounting Officer, we have evaluated the effectiveness of our disclosure controls and procedures as of December 31, 2022. The term "disclosure controls and procedures," as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), means controls and other procedures of a company that are designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified in the U.S. Securities and Exchange Commission's rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the company's management, including its principal executive and principal financial officers, as appropriate, to allow timely decisions regarding required disclosure. Management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving their objectives, and management necessarily applies its judgment in evaluating the cost-benefit relationship of possible controls and procedures. Based on the evaluation of our disclosure controls and procedures as of December 31, 2022, our Chief Executive Officer, Chief Financial Officer, and Chief Accounting Officer concluded that, as of such date, our disclosure controls and procedures were effective at the reasonable assurance level.
We excluded from our assessment of the effectiveness of internal control over financial reporting as of December 31, 2022, the internal control over financial reporting for Elastic M2M, Inc. and DP Acquisition Corp. (Dynapower), which were acquired by us on February 11, 2022 and July 12, 2022, respectively. These exclusions are consistent with guidance issued by the U.S. Securities and Exchange Commission that an assessment of recently acquired businesses may be omitted from the scope of management's report on internal control over financial reporting in the year of acquisition. Excluded from our assessment of the effectiveness of internal control over financial reporting as of December 31, 2022 were total assets and net revenues of approximately 0.7% and 1.3%, respectively, of our consolidated total assets and consolidated net revenues as of and for the year ended December 31, 2022.
Changes in Internal Control over Financial Reporting
No change in our internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) occurred during the fourth quarter of the year ended December 31, 2022 that materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
Management’s Report on Internal Control Over Financial Reporting
Management of Sensata Technologies Holding plc (the "Company") is responsible for establishing and maintaining adequate internal control over financial reporting as is defined in Exchange Act Rules 13a-15(f) and 15d-15(f). The Company’s internal control system was designed to provide reasonable assurance to the Company’s management, Board of Directors, and shareholders regarding the preparation and fair presentation of the Company’s published financial statements in accordance with generally accepted accounting principles. The Company’s internal control over financial reporting includes those policies and procedures that:
•pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company;
•provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures are being made only in accordance with authorizations of management of the Company; and
•provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of our assets that could have a material effect on the financial statements.
We excluded from our assessment of the effectiveness of internal control over financial reporting as of December 31, 2022, the internal control over financial reporting for Elastic M2M, Inc. and DP Acquisition Corp. (Dynapower), which were acquired by us on February 11, 2022 and July 12, 2022, respectively. These exclusions are consistent with guidance issued by the U.S. Securities and Exchange Commission that an assessment of recently acquired businesses may be omitted from the scope of management's report on internal control over financial reporting in the year of acquisition. Excluded from our assessment of the effectiveness of internal control over financial reporting as of December 31, 2022 were total assets and net revenues of approximately 0.7% and 1.3%, respectively, of our consolidated total assets and consolidated net revenues as of and for the year ended December 31, 2022.
There are inherent limitations to the effectiveness of any system of internal control over financial reporting. Accordingly, even an effective system of internal control over financial reporting can only provide reasonable assurance with respect to financial statement preparation and presentation in accordance with accounting principles generally accepted in the United States of America. Our internal controls over financial reporting are subject to various inherent limitations, including cost limitations, judgments used in decision making, assumptions about the likelihood of future events, the soundness of our systems, the possibility of human error, and the risk of fraud. Moreover, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may be inadequate because of changes in conditions and the risk that the degree of compliance with policies or procedures may deteriorate over time.
Management assessed the effectiveness of the Company’s internal control over financial reporting as of December 31, 2022. In making its assessment of internal control over financial reporting, management used the criteria issued by the Committee of Sponsoring Organizations ("COSO") of the Treadway Commission in May 2013.
Based on the results of this assessment, management, including our Chief Executive Officer, Chief Financial Officer, and Chief Accounting Officer, has concluded that, as of December 31, 2022, the Company’s internal control over financial reporting was effective.
The Company’s independent registered public accounting firm, Ernst & Young LLP, has also issued an audit report on the Company’s internal control over financial reporting, which is included elsewhere in this Annual Report on Form 10-K.
Swindon, United Kingdom
February 13, 2023
Report of Independent Registered Public Accounting Firm
To the Shareholders and the Board of Directors of
Sensata Technologies Holding plc
Opinion on Internal Control over Financial Reporting
We have audited Sensata Technologies Holding plc’s internal control over financial reporting as of December 31, 2022, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) (the COSO criteria). In our opinion, Sensata Technologies Holding plc (the Company) maintained, in all material respects, effective internal control over financial reporting as of December 31, 2022, based on the COSO criteria. As indicated in the accompanying Management's Report on Internal Control Over Financial Reporting, management's assessment of and conclusion on the effectiveness of internal control over financial reporting did not include the internal controls of Elastic M2M, Inc. and DP Acquisition Corp. (Dynapower), which are included in the 2022 consolidated financial statements of the Company and in aggregate constituted 0.7% of total assets as of December 31, 2022 and 1.3% of revenues for the year then ended. Our audit of internal control over financial reporting of the Company also did not include an evaluation of the internal control over financial reporting of Elastic M2M, Inc. and Dynapower.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance sheets of the Company as of December 31, 2022 and 2021, the related consolidated statements of operations, comprehensive income, cash flows and changes in shareholders' equity for each of the three years in the period ended December 31, 2022, and the related notes and financial statement schedules listed in the Index at Item 15(a) (collectively referred to as the “consolidated financial statements”), and our report dated February 13, 2023 expressed an unqualified opinion thereon.
Basis for Opinion
The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying Management’s Report on Internal Control over Financial Reporting. Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects.
Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
Definition and Limitations of Internal Control Over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
Boston, Massachusetts
February 13, 2023
ITEM 9B.OTHER INFORMATION
None
ITEM 9C.DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS
None
PART III
ITEM 10.DIRECTORS, EXECUTIVE OFFICERS, AND CORPORATE GOVERNANCE
The information required by this Item 10 is incorporated herein by reference from the Definitive Proxy Statement of Sensata Technologies Holding plc (the "Company"), to be filed with the U.S. Securities and Exchange Commission (the "SEC") within 120 days of the Company's fiscal year ended December 31, 2022.
ITEM 11.EXECUTIVE COMPENSATION
The information required by this Item 11 is incorporated herein by reference from the Company's Definitive Proxy Statement, to be filed with the SEC within 120 days of the Company's fiscal year ended December 31, 2022.
ITEM 12.SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The information required by this Item 12 is incorporated herein by reference from the Company's Definitive Proxy Statement, to be filed with the SEC within 120 days of the Company's fiscal year ended December 31, 2022.
ITEM 13.CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
The information required by this Item 13 is incorporated herein by reference from the Company's Definitive Proxy Statement, to be filed with the SEC within 120 days of the Company's fiscal year ended December 31, 2022.
ITEM 14.PRINCIPAL ACCOUNTING FEES AND SERVICES
The information required by this Item 14 is incorporated herein by reference from the Company's Definitive Proxy Statement, to be filed with the SEC within 120 days of the Company's fiscal year ended December 31, 2022.
PART IV
ITEM 15.EXHIBITS, FINANCIAL STATEMENT SCHEDULES
(a)
1.Financial Statements — See "Financial Statements" under Item 8, "Financial Statements and Supplementary Data," of this Annual Report on Form 10-K.
2.Financial Statement Schedules — See "Financial Statement Schedules" under Item 8, "Financial Statements and Supplementary Data," of this Annual Report on Form 10-K.
3.Exhibits
EXHIBIT INDEX
| | | | | | | | |
| 2.1 | | |
| | |
| 2.2 | | |
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| 3.1 | | |
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| 4.1 | | |
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| 4.2 | | |
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| 4.3 | | |
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| 4.4 | | |
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| 4.5 | | |
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| 4.6 | | |
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| 4.7 | | |
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| 4.8 | | |
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| 4.9 | | |
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| 4.10 | | |
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| 4.11 | | |
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| 4.12 | | |
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| 4.13 | | |
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| 4.14 | | |
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| 4.15 | | |
| | |
| | | | | | | | |
| 10.1 | | |
| | |
| 10.2 | | Credit Agreement, dated as of May 12, 2011, by and among Sensata Technologies B.V., Sensata Technologies Finance Company, LLC, Sensata Technologies Intermediate Holding B.V., Morgan Stanley Senior Funding, Inc., as administrative agent, the initial l/c issuer and initial swing line lender named therein, and the other lenders party thereto (incorporated by reference to Exhibit 10.1 of the Registrant's Current Report on Form 8-K filed on May 17, 2011, Commission File Number 001-34652). |
| | |
| 10.3 | | Domestic Guaranty, dated as of May 12, 2011, made by each of Sensata Technologies Finance Company, LLC, Sensata Technologies, Inc., Sensata Technologies Massachusetts, Inc. and each of the Additional Guarantors from time to time made a party thereto in favor of the Secured Parties (as defined therein) (incorporated by reference to Exhibit 10.2 of the Registrant's Current Report on Form 8-K filed on May 17, 2011, Commission File Number 001-34652). |
| | |
| 10.4 | | |
| | |
| 10.5 | | Foreign Guaranty, dated as of May 12, 2011, made by each of Sensata Technologies Holding Company US B.V., Sensata Technologies Holland, B.V., Sensata Technologies Holding Company Mexico, B.V., Sensata Technologies de México, S. de R.L. de C.V., Sensata Technologies Japan Limited, Sensata Technologies Malaysia Sdn. Bhd. and each of the Additional Guarantors from time to time made a party thereto in favor of the Secured Parties (as defined therein) (incorporated by reference to Exhibit 10.4 of the Registrant's Current Report on Form 8-K filed on May 17, 2011, Commission File Number 001-34652). |
| | |
| 10.6 | | Patent Security Agreement, dated as of May 12, 2011, made by each of Sensata Technologies Finance Company, LLC, Sensata Technologies, Inc. and Sensata Technologies Massachusetts, Inc. to Morgan Stanley Senior Funding, Inc., as collateral agent (incorporated by reference to Exhibit 10.5 of the Registrant's Current Report on Form 8-K filed on May 17, 2011, Commission File Number 001-34652). |
| | |
| 10.7 | | Trademark Security Agreement, dated as of May 12, 2011, made by each of Sensata Technologies Finance Company, LLC, Sensata Technologies, Inc. and Sensata Technologies Massachusetts, Inc. to Morgan Stanley Senior Funding, Inc., as collateral agent (incorporated by reference to Exhibit 10.6 of the Registrant's Current Report on Form 8-K filed on May 17, 2011, Commission File Number 001-34652). |
| | |
| 10.8 | | |
| | |
| 10.9 | | Domestic Security Agreement, dated as of May 12, 2011, made by each of Sensata Technologies Finance Company, LLC, Sensata Technologies, Inc. and Sensata Technologies Massachusetts, Inc. to Morgan Stanley Senior Funding, Inc., as collateral agent (incorporated by reference to Exhibit 10.8 of the Registrant's Current Report on Form 8-K filed on May 17, 2011, Commission File Number 001-34652). |
| | |
| 10.10 | | |
| | |
| 10.11 | | Amendment No. 1 to Credit Agreement dated as of December 6, 2012, to the Credit Agreement dated as of May 12, 2011, by and among Sensata Technologies B.V., Sensata Technologies Finance Company LLC, Sensata Technologies Intermediate Holding B.V., the subsidiary guarantors party thereto, Morgan Stanley Senior Funding, Inc., and Barclays Bank PLC (incorporated by reference to Exhibit 10.1 of the Registrant's Current Report on Form 8-K filed on December 10, 2012, Commission File No. 001-34652). |
| | |
| 10.12 | | Amendment No. 2 to Credit Agreement dated as of December 11, 2013, to the Credit Agreement dated as of May 12, 2011, by and among Sensata Technologies B.V., Sensata Technologies Finance Company LLC, Sensata Technologies Intermediate Holding B.V., the subsidiary guarantors party thereto, and Morgan Stanley Senior Funding, Inc. (incorporated by reference to Exhibit 10.1 of the Registrant's Current Report on Form 8-K filed on December 11, 2013, Commission File No. 001-34652). |
| | |
| 10.13 | | |
| | |
| | | | | | | | |
| 10.14 | | Amendment No. 3 to Credit Agreement dated as of October 14, 2014, to the Credit Agreement dated as of May 12, 2011, by and among Sensata Technologies B.V., Sensata Technologies Finance Company LLC, Sensata Technologies Intermediate Holding B.V., the subsidiary guarantors party thereto, Barclays Bank PLC and the other lenders party thereto, and Morgan Stanley Senior Funding, Inc. (incorporated by reference to Exhibit 10.1 of the Registrant's Current Report on Form 8-K filed on October 17, 2014, Commission File No. 001-34652). |
| | |
| 10.15 | | Amendment No. 4 to Credit Agreement, dated as of November 4, 2014, to the Credit Agreement, dated as of May 12, 2011, by and among Sensata Technologies B.V., Sensata Technologies Finance Company, LLC, Sensata Technologies Intermediate Holding B.V., the subsidiary guarantors party thereto, Morgan Stanley Senior Funding, Inc. and the other lenders party thereto (incorporated by reference to Exhibit 10.1 of the Registrant's Current Report on Form 8-K filed on November 10, 2014, Commission File No. 001-34652). |
| | |
| 10.16 | | Amendment No. 5 to Credit Agreement, dated as of March 26, 2015, to the Credit Agreement dated as of May 12, 2011, by and among Sensata Technologies B.V., Sensata Technologies Finance Company, LLC, Sensata Technologies Intermediate Holding B.V., the subsidiary guarantors party thereto, Morgan Stanley Senior Funding, Inc. and the other lenders party thereto (incorporated by reference to Exhibit 10.1 of the Registrant's Current Report on Form 8-K filed on April 1, 2015). |
| | |
| 10.17 | | Amendment No. 6 to Credit Agreement dated as of May 11, 2015, to the Credit Agreement dated as of May 12, 2011, by and among Sensata Technologies B.V., Sensata Technologies Finance Company, LLC, Sensata Technologies Intermediate Holding B.V., Morgan Stanley Senior Funding, Inc. and Barclays Bank PLC as joint lead arrangers and bookrunners, Morgan Stanley Senior Funding, Inc. as administrative agent on behalf of the lenders party to the Credit Agreement, and the lenders party thereto (incorporated by reference to Exhibit 10.1 of the Registrant's Current Report on Form 8-K filed on May 14, 2015). |
| | |
| 10.18 | | Amendment No. 7 to Credit Agreement, dated as of September 29, 2015, to the Credit Agreement, dated as of May 12, 2011, by and among Sensata Technologies B.V., Sensata Technologies Finance Company, LLC, Sensata Technologies Intermediate Holding B.V., the subsidiary guarantors party thereto, Morgan Stanley Senior Funding, Inc. and the other lenders party thereto (incorporated by reference to Exhibit 10.1 of the Registrant's Current Report on Form 8-K filed on October 2, 2015). |
| | |
| 10.19 | | Amendment No. 8 to Credit Agreement, dated as of November 7, 2017, to the Credit Agreement, dated as of May 12, 2011, by and among Sensata Technologies B.V., Sensata Technologies Finance Company, LLC, Sensata Technologies Intermediate Holding B.V., the subsidiary guarantors party thereto, Morgan Stanley Senior Funding, Inc. and the other lenders party thereto. (incorporated by reference to Exhibit 10.1 of the Registrant's Current Report on Form 8-K filed on November 14, 2017). |
| | |
| 10.20 | | |
| | |
| 10.21 | | Amendment No. 9 to Credit Agreement, dated as of March 27, 2019, to the Credit Agreement, dated as of May 12, 2011, by and among Sensata Technologies B.V., Sensata Technologies Finance Company, LLC, Sensata Technologies Intermediate Holding B.V., the subsidiary guarantors party thereto, Morgan Stanley Senior Funding, Inc. and the other lenders party thereto (incorporated by reference to Exhibit 10.1 of the Registrant's Current Report on Form 8-K filed on April 2, 2019, Commission File Number 001-34652). |
| | |
| 10.22 | | |
| | |
| 10.23 | | Amendment No. 10 to Credit Agreement and Amendment No. 1 to Domestic Guaranty and Foreign Guaranty, dated as of September 20, 2019, by and among Sensata Technologies, Inc., Sensata Technologies Intermediate Holding B.V., Sensata Technologies B.V., the other guarantors party thereto, Morgan Stanley Senior Funding, Inc., and the other lenders party thereto (incorporated by reference to Exhibit 10.1 of the Registrant's Current Report on Form 8-K filed on September 26, 2019). |
| | |
| 10.24 | | |
| | |
| 10.25 | | |
| | |
| 10.26 | | |
| | |
| | | | | | | | |
| 10.27 | | |
| | |
| 10.28 | | |
| | |
| 10.29 | | |
| | |
| 10.30 | | |
| | |
| 10.31 | | Securities Purchase Agreement, dated February 11, 2021, by and among Xirgo Technologies Intermediate Holdings, LLC, Xirgo Holdings, Inc., the Persons, Sellers, and Option Holder Identified Herein, Sensata Technologies, Inc., and the Seller Representative Identified Herein (incorporated by reference to Exhibit 10.42 of the Registrant’s Annual Report on Form 10-K filed on February 12, 2021). |
| | |
| 10.32 | | |
| | |
| 10.33 | | |
| | |
| 10.34 | | |
| | |
| 10.35 | | |
| | |
| 10.36 | | |
| | |
| 10.37 | | |
| | |
| 10.38 | | |
| | |
| 10.39 | | |
| | |
| 10.40 | | |
| | |
| 10.41 | | Amendment No. 11 to Credit Agreement and Amendment No. 2 to Foreign Guaranty, dated as of June 23, 2022, by and among Sensata Technologies, Inc., Sensata Technologies Intermediate Holding B.V., the other Guarantors party thereto, Morgan Stanley Senior Funding, Inc., as the Administrative Agent, an L/C Issuer and the Swing Line Lender, and the Revolving Credit Lenders and other L/C Issuers party thereto (incorporated by reference to Exhibit 10.1 of the Registrant's Current Report on Form 8-K filed on June 29, 2022). |
| | |
| 10.42 | | Amendment No. 12 to Credit Agreement, dated as of January 4, 2023, to the Credit Agreement, dated as of May 12, 2011, by and among Sensata Technologies Inc., Sensata Technologies Intermediate Holding B.V., the subsidiary guarantors party thereto, Morgan Stanley Senior Funding, Inc. and the other lenders party thereto. * |
| | |
| 21.1 | | |
| | |
| 23.1 | | |
| | |
| 31.1 | | |
| | |
| 31.2 | | |
| | | | | | | | |
| | |
| 31.3 | | |
| | |
| 32.1 | | |
| | |
| 101.INS | | Inline XBRL Instance Document - the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document. |
| | |
| 101.SCH | | Inline XBRL Taxonomy Extension Schema Document. * |
| | |
| 101.CAL | | Inline XBRL Taxonomy Extension Calculation Linkbase Document. * |
| | |
| 101.DEF | | Inline XBRL Taxonomy Extension Definition Linkbase Document. * |
| | |
| 101.LAB | | Inline XBRL Taxonomy Extension Label Linkbase Document. * |
| | |
| 101.PRE | | Inline XBRL Taxonomy Extension Presentation Linkbase Document. * |
| | |
| 104 | | Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101) |
____________________
* Filed herewith.
† Indicates management contract or compensatory plan, contract or arrangement.
‡ There have been non-material modifications to this contract since inception
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| | | | | | | | | | | |
| | | SENSATA TECHNOLOGIES HOLDING PLC |
| | | |
| | | /s/ JEFF COTE |
| By: | | Jeff Cote |
| Its: | | Chief Executive Officer and President |
| | | |
| Date: | | February 13, 2023 |
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| | | | | | | | | | | | | | |
| SIGNATURE | | TITLE | | DATE |
| | | | |
| /s/ JEFF COTE | | Chief Executive Officer, President, and Director | | February 13, 2023 |
| Jeff Cote | | (Principal Executive Officer) | | |
| | | | |
| /s/ PAUL VASINGTON | | Executive Vice President and Chief Financial Officer | | February 13, 2023 |
| Paul Vasington | | (Principal Financial Officer) | | |
| | | | |
| /s/ MARIA FREVE | | Vice President and Chief Accounting Officer | | February 13, 2023 |
| Maria Freve | | (Principal Accounting Officer) | | |
| | | | |
| /s/ ANDREW TEICH | | Chairman of the Board of Directors | | February 13, 2023 |
| Andrew Teich | | | | |
| | | | |
| /s/ JOHN ABSMEIER | | Director | | February 13, 2023 |
| John Absmeier | | | | |
| | | | |
| /s/ DANIEL BLACK | | Director | | February 13, 2023 |
| Daniel Black | | | | |
| | | | |
| /s/ LORRAINE BOLSINGER | | Director | | February 13, 2023 |
| Lorraine Bolsinger | | | | |
| | | | |
| /s/ JAMES HEPPELMANN | | Director | | February 13, 2023 |
| James Heppelmann | | | | |
| | | | |
| /s/ CONSTANCE SKIDMORE | | Director | | February 13, 2023 |
| Constance Skidmore | | | | |
| | | | |
| /s/ STEVEN SONNENBERG | | Director | | February 13, 2023 |
| Steven Sonnenberg | | | | |
| | | | |
| /s/ MARTHA SULLIVAN | | Director | | February 13, 2023 |
| Martha Sullivan | | | | |
| | | | |
| /s/ STEPHEN ZIDE | | Director | | February 13, 2023 |
| Stephen Zide | | | | |
| | | | |
| /s/ JEFF COTE | | Authorized Representative in the United States | | February 13, 2023 |
| Jeff Cote | | | | |
SENSATA TECHNOLOGIES B.V.
AND
THE GUARANTORS NAMED HEREIN
$400,000,000
5.625% SENIOR NOTES DUE 2024
____________________________________
INDENTURE
Dated as of October 14, 2014
____________________________________
THE BANK OF NEW YORK MELLON
Trustee
____________________________________
TABLE OF CONTENTS
Page
| | | | | | | | |
| ARTICLE 1 |
| DEFINITIONS AND INCORPORATION BY REFERENCE |
| Section 1.01 | Definitions | 1 |
| Section 1.02 | Other Definitions | 21 |
| Section 1.03 | Incorporation by Reference of Certain Provisions and Defined Terms in the Trust Indenture Act | 22 |
| Section 1.04 | Rules of Construction | 22 |
| | |
| ARTICLE 2 |
| THE NOTES |
| Section 2.01 | Form and Dating | 22 |
| Section 2.02 | Execution and Authentication | 24 |
| Section 2.03 | Agents | 24 |
| Section 2.04 | Paying Agent to Hold Money in Trust | 25 |
| Section 2.05 | Holder Lists | 25 |
| Section 2.06 | Transfer and Exchange | 25 |
| Section 2.07 | Replacement Notes | 38 |
| Section 2.08 | Outstanding Notes | 38 |
| Section 2.09 | Treasury Notes | 39 |
| Section 2.10 | Temporary Notes | 39 |
| Section 2.11 | Cancellation | 39 |
| Section 2.12 | Defaulted Interest | 39 |
| Section 2.13 | CUSIP Numbers and ISIN Numbers | 40 |
| | |
| ARTICLE 3 |
| REDEMPTION AND PREPAYMENT |
| Section 3.01 | Notices to Trustee | 40 |
| Section 3.02 | Selection of Notes to Be Redeemed | 40 |
| Section 3.03 | Notice of Optional Redemption | 41 |
| Section 3.04 | Effect of Notice of Redemption | 42 |
| Section 3.05 | Deposit of Redemption Price | 42 |
| Section 3.06 | Notes Redeemed in Part | 42 |
| Section 3.07 | Optional Redemption | 42 |
| Section 3.08 | Mandatory Redemption | 44 |
| | | | | | | | |
| ARTICLE 4 |
| COVENANTS |
| Section 4.01 | Payment of Notes | 45 |
| Section 4.02 | Maintenance of Office or Agency | 49 |
| Section 4.03 | Reports | 49 |
| Section 4.04 | Compliance Certificate | 51 |
| Section 4.05 | Corporate Existence | 51 |
| Section 4.06 | [Intentionally Omitted] | 52 |
| Section 4.07 | [Intentionally Omitted] | 52 |
| Section 4.08 | Limitation on Sale and Lease-Back Transactions | 52 |
| Section 4.09 | Limitation on Subsidiary Debt | 52 |
| Section 4.10 | [Intentionally Omitted] | 55 |
| Section 4.11 | [Intentionally Omitted] | 55 |
| Section 4.12 | Limitation on Liens | 55 |
| Section 4.13 | Business Activities | 55 |
| Section 4.14 | Payment of Taxes and Other Claims | 55 |
| Section 4.15 | Offer to Repurchase upon Change of Control | 56 |
| Section 4.16 | Payments for Consent | 57 |
| Section 4.17 | Additional Guarantees | 57 |
| Section 4.18 | [Intentionally Omitted] | 58 |
| Section 4.19 | Suspension of Guarantees Upon Change in Ratings | 58 |
| Section 4.20 | Compliance with Laws | 58 |
| Section 4.21 | Waiver of Stay, Extension or Usury Laws | 59 |
| Section 4.22 | Special Mandatory Redemption Account | 59 |
| | |
| ARTICLE 5 |
| SUCCESSORS |
| Section 5.01 | Merger, Consolidation, or Sale of Assets | 59 |
| | |
| ARTICLE 6 |
| DEFAULTS AND REMEDIES |
| Section 6.01 | Events of Default | 61 |
| Section 6.02 | Acceleration | 63 |
| Section 6.03 | Other Remedies | 63 |
| Section 6.04 | Waiver of Past Defaults | 64 |
| Section 6.05 | Control by Majority | 64 |
| Section 6.06 | Limitation on Suits | 64 |
| Section 6.07 | Rights of Holders of Notes to Receive Payment | 65 |
| Section 6.08 | Collection Suit by Trustee | 65 |
| | | | | | | | |
| Section 6.09 | Trustee May File Proofs of Claim | 65 |
| Section 6.10 | Priorities | 66 |
| Section 6.11 | Undertaking for Costs | 66 |
| | |
| ARTICLE 7 |
| TRUSTEE |
| Section 7.01 | Duties of Trustee | 66 |
| Section 7.02 | Rights of Trustee | 67 |
| Section 7.03 | Individual Rights of Trustee | 69 |
| Section 7.04 | Trustee's Disclaimer | 69 |
| Section 7.05 | Notice of Defaults | 69 |
| Section 7.06 | [Intentionally Omitted] | 69 |
| Section 7.07 | Compensation and Indemnity | 69 |
| Section 7.08 | Replacement of Trustee | 70 |
| Section 7.09 | Successor Trustee by Merger, Etc | 71 |
| Section 7.10 | Eligibility; Disqualification | 71 |
| Section 7.11 | Preferential Collection of Claims Against the Company | 72 |
| | |
| ARTICLE 8 |
| LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
| Section 8.01 | Option to Effect Legal Defeasance or Covenant Defeasance | 72 |
| Section 8.02 | Legal Defeasance and Discharge | 72 |
| Section 8.03 | Covenant Defeasance | 73 |
| Section 8.04 | Conditions to Legal or Covenant Defeasance | 73 |
| Section 8.05 | Deposited Money and U.S. Government Securities to Be Held in Trust; Other Miscellaneous Provisions. | 74 |
| Section 8.06 | Repayment to Company | 75 |
| Section 8.07 | Reinstatement | 75 |
| | |
| ARTICLE 9 |
| AMENDMENT, SUPPLEMENT AND WAIVER |
| Section 9.01 | Without Consent of Holders of Notes | 76 |
| Section 9.02 | With Consent of Holders of Notes | 76 |
| Section 9.03 | [Intentionally Omitted] | 78 |
| Section 9.04 | Revocation and Effect of Consents | 78 |
| Section 9.05 | Notation on or Exchange of Notes | 78 |
| Section 9.06 | Trustee to Sign Amendments, Etc | 79 |
| | |
| | | | | | | | |
| ARTICLE 10 |
| GUARANTEES |
| Section 10.01 | Guarantee | 79 |
| Section 10.02 | Limitation on Guarantor Liability | 80 |
| Section 10.03 | Execution and Delivery of Guarantee | 81 |
| Section 10.04 | Guarantors May Consolidate, Etc., on Certain Terms | 81 |
| Section 10.05 | Releases | 81 |
| | |
| ARTICLE 11 |
| SATISFACTION AND DISCHARGE |
| Section 11.01 | Satisfaction and Discharge | 82 |
| Section 11.02 | Application of Trust Money | 83 |
| | |
| ARTICLE 12 |
| MISCELLANEOUS |
| Section 12.01 | [Intentionally Omitted] | 83 |
| Section 12.02 | Notices | 83 |
| Section 12.03 | Communication by Holders of Notes with Other Holders of Notes | 85 |
| Section 12.04 | Certificate and Opinion as to Conditions Precedent | 85 |
| Section 12.05 | Statements Required in Certificate or Opinion | 85 |
| Section 12.06 | Rules by Trustee and Agents | 86 |
| Section 12.07 | No Personal Liability of Directors, Officers, Employees and Stockholders | 86 |
| Section 12.08 | Governing Law | 86 |
| Section 12.09 | Jurisdiction; Waiver of Jury Trial | 86 |
| Section 12.10 | Waiver of Immunities | 86 |
| Section 12.11 | Currency Rate Indemnity | 87 |
| Section 12.12 | Successors | 87 |
| Section 12.13 | Severability | 87 |
| Section 12.14 | Counterpart Originals | 87 |
| Section 12.15 | Table of Contents, Headings, Etc | 87 |
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF NOTATION OF GUARANTEE
Exhibit E FORM OF SUPPLEMENTAL INDENTURE
INDENTURE dated as of October 14, 2014 among Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Company”), the Guarantors (as defined herein) and The Bank of New York Mellon, a New York banking corporation, as Trustee.
The Company, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined herein) of (a) the $400,000,000 aggregate principal amount of the Company's 5.625% Senior Notes due 2024 (the “Initial Notes”) and (b) any Additional Notes (as defined herein) that may be issued after the date hereof (all such securities in clauses (a) and (b) being referred to collectively as the “Notes”):
Article 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
“144A Global Note” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.
“2019 Notes” means the $700.0 million aggregate principal amount of 6.5% Senior Notes due 2019 issued by the Company and Guaranteed by certain of the Company's Subsidiaries.
“2023 Notes” means the $500.0 million aggregate principal amount of 4.875% Senior Notes due 2023 issued by the Company and Guaranteed by certain of the Company's Subsidiaries.
“Additional Notes” means additional Notes (other than the Initial Notes) issued under this Indenture after the Issue Date in accordance with Sections 2.02 and 4.09 hereof, as part of the same series as the Initial Notes.
“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” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), 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.
“Agent” means any Registrar, co-registrar, Paying Agent, transfer agent, additional paying agent or other agent appointed hereunder.
“Aggregate Debt” means the sum of the following as of the date of determination: (1) the sum of the then outstanding aggregate principal amount of (a) the Indebtedness of the Company and its Subsidiaries incurred after the Issue Date and secured by Liens not permitted by Section 4.12(a) and (b) Indebtedness of the Company and its Subsidiaries secured by a Lien under the Credit Agreement that is outstanding on the Issue Date less the amount of such Indebtedness that has subsequently been repaid; (2) the then outstanding aggregate principal
amount of all Subsidiary Debt incurred after the Issue Date and not permitted by Section 4.09(b); provided, that any such Subsidiary Debt will be excluded from this clause (2) to the extent that such Subsidiary Debt is included in clause (1) or (3) of this definition; and (3) the then existing Attributable Liens of the Company and its Subsidiaries in respect of sale and lease-back transactions entered into after the Issue Date pursuant to Section 4.08(b); provided, that any such Attributable Liens will be excluded from this clause (3) to the extent that the Indebtedness relating thereto is included in clause (1) or (2) of this definition.
“Applicable Premium” means, with respect to any Note on any redemption date and as calculated by the Company, the greater of:
(1)1.0% of the then outstanding principal amount of such Note; and
(2)the excess, if any, of (a) the present value at such date of redemption of the sum of the remaining scheduled payments of principal and interest thereon (not including any portion of such payments of interest accrued to the date of redemption) discounted to such date of redemption on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) computed using a discount rate equal to the Treasury Rate plus 50 basis points, over (b) the then outstanding principal amount of such Note.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the relevant Depositary that apply to such transfer or exchange.
“Attributable Liens” means in connection with a sale and lease-back transaction the lesser of: (1) the fair market value of the assets subject to such transaction, as determined in good faith by the Company's Board of Directors; and (2) the present value (discounted at a rate of 10% per annum compounded monthly) of the obligations of the lessee for rental payments during the shorter of the term of the related lease or the period through the first date on which the Company may terminate the lease.
“August Cayman” means August Cayman Company, Inc., an exempted company incorporated with limited liability under the laws of the Cayman Islands.
“Bankruptcy Law” means (i) Title 11, United States Code or any similar U.S. federal or state law for the relief of debtors or the administration or liquidation of debtors' estates for the benefit of their creditors, (ii) the Dutch Bankruptcy Law or any similar Dutch federal or state law for the relief of debtors or the administration or liquidation of debtors' estates for the benefit of their creditors and (iii) any other similar federal or local law for the relief of debtors or the administration or liquidation of debtors' estates for the benefit of their creditors in any other applicable jurisdiction, now or hereinafter in effect.
“Beneficial Owner” or “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” will 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,” “Beneficially Owned” and “Beneficial Ownership” 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 having only one general partner, the board of directors of the general partner of the partnership;
(3)with respect to a limited liability company, the managing member or members or any controlling committee of managing members or other governing body thereof; and
(4)with respect to any other Person, the board or committee of such Person serving a similar function.
“Business Day” means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York are authorized or required by law to close.
“Capital Lease” 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 such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP (except for temporary treatment of construction related expenditures under EITF 97 10, “The Effect of Lessee Involvement in Asset Construction,” which will ultimately be treated as operating leases upon a sale leaseback transaction).
“Capital Stock” means:
(1)in the case of a corporation, capital stock, shares or share capital;
(2)in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock;
(3)in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
(4)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.
“Cash Equivalents” means any of the following:
(1)readily marketable obligations issued or directly and fully guaranteed or insured by the United States, any state, commonwealth or territory of the United States or any agency or instrumentality thereof, having (i) one of the three highest ratings from either Moody's or S&P and (ii) maturities of not more than two years from the date of acquisition thereof; provided, that the full faith and credit of the United States is pledged in support thereof;
(2)time deposits with, or insured certificates of deposit or bankers' acceptances of, any commercial bank that (i) is a lender under the Credit
Agreement or (ii)(A) is organized under the laws of the United States, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof, the District of Columbia or the Commonwealth of Puerto Rico and is a member of the Federal Reserve System and (B) has combined capital and surplus of at least $250.0 million (any such bank in the foregoing clauses (i) or (ii) being an “Approved Domestic Bank”), in each case with maturities of not more than one year from the date of acquisition thereof;
(3)commercial paper and variable or fixed rate notes issued by an Approved Domestic Bank (or by the parent company thereof) or any variable rate note issued by, or guaranteed by a domestic corporation rated “A-2” (or the equivalent thereof) or better by S&P or “P-2” (or the equivalent thereof) or better by Moody's, in each case with maturities of not more than one year from the date of acquisition thereof;
(4)repurchase agreements entered into by any Person with a bank or trust company or recognized securities dealer (including any lender under the Credit Agreement), in each case, having capital and surplus in excess of $250.0 million for direct obligations issued by or fully guaranteed or insured by the government or any agency or instrumentality of the United States;
(5)investments, classified in accordance with GAAP as current assets of the Company or any of its Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions having capital of at least $250.0 million and the portfolios of which are limited such that 95% of such investments are of the character, quality and maturity described in clauses (1), (2), (3), or (4) of this definition;
(6)solely with respect to the Company and any Foreign Subsidiary, non-U.S. dollar denominated (i) certificates of deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Person maintains its chief executive office and principal place of business, provided such country is a member of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least “A-2” or the equivalent thereof or from Moody's is at least “P-2” or the equivalent thereof (any such bank being an “Approved Foreign Bank”) and maturing within one year of the date of acquisition and (ii) equivalents of demand deposit accounts which are maintained with an Approved Foreign Bank; and
(7)readily marketable obligations issued or directly and fully guaranteed or insured by the government or any agency or instrumentality of the Netherlands or any member nation of the European Union whose legal tender is the euro and which are denominated in euro or any other foreign currency comparable in credit quality and tenor to those referred to above and customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent
reasonably required in connection with any business conducted by any Subsidiary organized in such jurisdiction, having (i) one of the three highest ratings from either Moody's or S&P and (ii) maturities of not more than one year from the date of acquisition thereof; provided that the full faith and credit of the Netherlands or any such member nation of the European Union is pledged in support thereof.
“Change of Control” means the occurrence of any of the following:
(1)the sale, lease, transfer or other conveyance, in one or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person other than to a Permitted Holder; or
(2)the Company becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than a Permitted Holder, in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company or any entity of which is a Subsidiary.
“Clearstream” means Clearstream Banking, S.A. and any successor thereto.
“Code” means the United States Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to the Code are to the Code, as in effect on the Issue Date, and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.
“Commission” means the U.S. Securities and Exchange Commission.
“Company” means Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands.
“Consolidated Depreciation and Amortization Expense” means, with respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees, and other noncash charges (excluding any noncash item that represents an accrual or reserve for a cash expenditure for a future period) of such Person and its Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.
“Consolidated Interest Expense” means, with respect to any Person for any period, the sum, without duplication, of: (a) consolidated interest expense of such Person and its Subsidiaries for such period (including amortization of original issue discount, noncash interest payments (other than imputed interest as a result of purchase accounting), commissions, discounts and other fees and charges owed with respect to letters of credit and bankers' acceptance financing, the interest component of Capital Leases, net payments (if any) pursuant to
interest rate Hedging Obligations (any net receipts pursuant to such interest rate Hedging Obligations shall be included as a reduction to Consolidated Interest Expense), but excluding amortization of deferred financing fees or expensing of any bridge or other financing fees, and any loss on the early extinguishment of Indebtedness, in each case, relating to the Specified Financings) and (b) consolidated capitalized interest of such Person and its Subsidiaries for such period, whether paid or accrued and less (c) interest income actually received or receivable in cash for such period; provided, however, that Securitization Fees shall be deemed not to constitute Consolidated Interest Expense.
“Consolidated Net Income” means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided, however, that
(1)any net after-tax extraordinary, unusual or nonrecurring gains or losses (including, without limitation, severance, relocation, signing bonus, transition and other restructuring costs and litigation settlements or losses) shall be excluded;
(2)the Net Income for such period shall not include the cumulative effect of a change in accounting principle(s) during such period;
(3)any net after-tax gains or losses attributable to asset dispositions other than in the ordinary course of business (as determined in good faith by the Board of Directors of the Company) and any gain (or loss) realized upon the sale or other disposition of any Capital Stock of any Person shall be excluded;
(4)the Net Income for such period of any Person that is not a Subsidiary of such Person, or that is accounted for by the equity method of accounting, shall be excluded; provided that, to the extent not already included, Consolidated Net Income of such Person shall be (A) increased by the amount of dividends or other distributions that are actually paid in cash (or to the extent converted into cash) to the referent Person or a Subsidiary thereof in respect of such period and (B) decreased by the amount of any equity of the Company in a net loss of any such Person for such period to the extent the Company has funded such net loss;
(5)[reserved];
(6)non-cash compensation charges, including any such charges arising from stock options, restricted stock grants or other equity-incentive programs shall be excluded;
(7)any net after-tax gains or losses (less all fees and expenses or charges relating thereto) attributable to the early extinguishment or conversion of Indebtedness or Hedging Obligations shall be excluded;
(8)unrealized gains and losses from Hedging Obligations or “embedded derivatives” that require the same accounting treatment as Hedging Obligations shall be excluded;
(9)the effect of any non-cash items resulting from any amortization, write-up, write-down, write-off or impairment of assets (including intangible assets, goodwill and deferred financing costs but excluding inventory) in connection with any future acquisition, merger, consolidation or similar transaction or any other non-cash impairment charges incurred subsequent to the Issue Date resulting from the application of SFAS Nos. 142 and 144 (excluding any such non-cash item to the extent that it represents an accrual of or reserve for cash expenditures in any future period except to the extent such item is subsequently reversed) shall be excluded;
(10)any purchase accounting adjustments (including the impact of writing up inventory or deferred revenue at fair value), amortization, impairments, write-offs, or non-cash charges with respect to purchase accounting with respect to any acquisition, merger, consolidation, disposition or similar transaction, shall be excluded;
(11)any reasonable expenses or charges incurred in connection with any Equity Offering, investment, acquisition, recapitalization or Indebtedness permitted to be incurred under this Indenture (in each case whether or not consummated) or the offering of the Notes, shall be excluded;
(12)the amount of any restructuring charges or reserves (which, for the avoidance of doubt, shall include retention, severance, systems establishment cost, excess pension charges, contract termination costs, including future lease commitments, and costs to consolidate facilities and relocate employees), shall be excluded; and
(13)any gains or losses relating to foreign currency transactions, including those relating to mark-to-market of Indebtedness denominated in foreign currencies resulting from the application of GAAP, including pursuant to FAS No. 52, shall be excluded.
To the extent not already included in Consolidated Net Income of such Person and its Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include the amount of proceeds received from business interruption insurance and reimbursements of any expenses or charges that are covered by indemnification or other reimbursement provisions in connection with any sale, conveyance, transfer or disposition of assets permitted under this Indenture.
“Contingent Obligations” means, with respect to any Person, any obligation of such Person Guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, or (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.
“Corporate Trust Office of the Trustee” will be the address of the Trustee specified in Section 12.02 hereof or such other address as to which the Trustee may give notice to the Company.
“Credit Agreement” means that certain credit agreement, dated as of May 12, 2011, among the Company, the “Parent” (as defined therein), the “U.S. Borrower” (as defined therein), Morgan Stanley Senior Funding, Inc., as Administrative Agent, and the financial institutions from time to time party thereto, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, as amended, restated, supplemented, modified, renewed, refunded, replaced (whether at maturity or thereafter) or refinanced from time to time in one or more agreements or indentures (in each case with the same or new lenders or institutional investors), including any agreement adding or changing the borrower or guarantor or extending the maturity thereof or otherwise restructuring all or any portion of the Indebtedness thereunder or increasing the amount loaned or issued thereunder or altering the maturity thereof.
“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.
“Definitive Note” means a certificated non-Global Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Increases and Decreases in the Global Note” attached thereto.
“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.01(d) hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture, including DTC, Euroclear and/or Clearstream.
“Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person which, by its terms (or by the terms of any security into which it is convertible or for which it is putable or exchangeable), or upon the happening of any event, matures or is mandatorily redeemable (other than as a result of a change of control or asset sale), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than as a result of a change of control or asset sale), in whole or in part, in each case prior to the date that is 91 days after the earlier of the final maturity date of the Notes or the date the Notes are no longer outstanding; provided, however, that if such Capital Stock is issued to any plan for the benefit of employees of the Company or any of its Subsidiaries or transferred by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Company or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
“DTC” means The Depository Trust Company.
“EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication,
(1)the provision for taxes based on income or profits, plus franchise or similar taxes, of such Person for such period deducted in computing Consolidated Net Income, plus
(2)Consolidated Interest Expense of such Person for such period to the extent the same was deducted in calculating such Consolidated Net Income, plus
(3)Consolidated Depreciation and Amortization Expense of such Person for such period to the extent such depreciation and amortization were deducted in computing Consolidated Net Income, plus
(4)any other noncash charges, expenses or losses (including any impairment charges and the impact of purchase accounting, including, but not limited to, the amortization of inventory step-up) reducing Consolidated Net Income for such period (excluding any such charge that represents an accrual or reserve for a cash expenditure for a future period), plus
(5)any net gain or loss resulting from Hedging Obligations relating to currency exchange risk, plus
(6)the amount of any expense for minority interests consisting of Subsidiary income attributable to minority equity interests of third parties in any Guarantor deducted (and not added back) in such period in calculating Consolidated Net Income, plus
(7)Securitization Fees to the extent deducted in calculating Consolidated Net Income for such period, plus
(8)any net after-tax income or loss from discontinued operations and any net after-tax gains or losses on disposal of discontinued operations, less
(9)noncash items increasing Consolidated Net Income of such Person for such period (excluding any items which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges made in any prior period).
If acquisitions, dispositions, mergers or consolidations (as determined in accordance with GAAP) have been made by the Company or any Subsidiary of the Company during the Measurement Period or subsequent to such Measurement Period and on or prior to or simultaneously with the date on which EBITDA is calculated (the “Calculation Date”), then EBITDA shall be calculated on a pro forma basis assuming that all such acquisitions, dispositions, mergers or consolidations had occurred on the first day of such Measurement Period.
For purposes of this definition, whenever pro forma effect is to be given to an acquisition, disposition, merger or consolidation and the amount of income or earnings relating thereto, the pro forma calculations shall be determined in good faith by a responsible financial or accounting Officer of the Company and shall comply with the requirements of Rule 11-02 of Regulation S-X promulgated by the Commission, except that such pro forma calculations may include operating expense reductions for such period resulting from the transaction which is being given pro forma effect that (A) have been realized or (B) for which the steps necessary for realization have been taken (or are taken concurrently with such transaction) or (C) for which the steps necessary for realization are reasonably expected to be taken within the twelve month
period following such transaction and, in each case, including, but not limited to, (a) reduction in personnel expenses, (b) reduction of costs related to administrative functions, (c) reduction of costs related to leased or owned properties and (d) reductions from the consolidation of operations and streamlining of corporate overhead, provided that, in each case, such adjustments are set forth in a certificate signed by a responsible financial or accounting Officer of the Company which states (i) the amount of such adjustment or adjustments and (ii) in the case of items (B) or (C) above, that such adjustment or adjustments are based on the reasonable good faith beliefs of the Officer executing such certificate at the time of such execution.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“Equity Offering” means any public or private sale of common stock or Preferred Stock of the Company or any of its direct or indirect parent companies (excluding Disqualified Stock of the Company), other than (i) public offerings with respect to common stock of the Company or of any of its direct or indirect parent companies registered on Form S-4 or Form S-8 or (ii) an issuance to any Subsidiary of the Company.
“Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system, and any successor thereto.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Foreign Subsidiary” means, with respect to any Person, any Subsidiary of such Person that is not organized or existing under the laws of the United States, any state thereof or the District of Columbia.
“GAAP” means generally accepted accounting principles in the United States which are in effect on the Issue Date, except with respect to any reports or financial information required to be delivered pursuant to Section 4.03, which shall be prepared in accordance with GAAP as in effect on the date thereof, except as provided below. At any time after the adoption of IFRS by the Company for its financial statements and reports for all financial reporting purposes, the Company may elect to apply IFRS for all purposes of this Indenture, in lieu of GAAP, and, upon any such election, references herein to GAAP shall be construed to mean IFRS as in effect from time to time; provided that (1) any such election once made shall be irrevocable and shall only be made once, except as may be necessary to comply with applicable law, rule or regulation, (2) all financial statements and reports required to be provided after such election pursuant to this Indenture shall be prepared on the basis of IFRS and (3) from and after such election, all ratios, computations and other determinations (A) based on GAAP contained in this Indenture shall be computed in conformity with IFRS and (B) in this Indenture that require the application of GAAP for periods that include fiscal quarters ended prior to the Company's election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP. The Company shall give notice of any election to the Trustee and the Holders of Notes with 15 days of such election. For the avoidance of doubt, solely making an election (without any other action) referred to in this definition will not be treated as an incurrence of Indebtedness. For purposes of this description, the term “consolidated” with respect to any Person means such Person consolidated with its Subsidiaries.
“Global Note Legend” means the legend set forth in Section 2.06(g)(ii) hereof, which is required to be placed on all Global Notes issued under this Indenture.
“Global Notes” means the 144A Global Note and the Regulation S Global Note.
“Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness or other obligations. When used as a verb, “Guarantee” shall have a corresponding meaning.
“Guarantor” means any Person that provides a Note Guarantee, either on the Issue Date or after the Issue Date in accordance with the terms of this Indenture; provided, that upon the release and discharge of such Person from its Note Guarantee in accordance with this Indenture, such Person shall cease to be a Guarantor. On the Issue Date, the Guarantors will be each Subsidiary that is a guarantor under the Credit Agreement.
“Hedging Obligations” means, with respect to any Person, the obligations of such Person under:
(1)currency exchange, interest rate or commodity swap agreements, currency exchange, interest rate or commodity cap agreements and currency exchange, interest rate or commodity collar agreements; and
(2)other agreements or arrangements designed to manage, hedge or protect such Person with respect to fluctuations in currency exchange, interest rates or commodity prices.
“Holder” means a Person in whose name a Note is registered in the register maintained by the Registrar.
“IFRS” means the International Financial Reporting Standards as issued by the International Accounting Standards Board.
“Indebtedness” means, with respect to any Person,
(a)any indebtedness (including principal and premium) of such Person, whether or not contingent:
(i)in respect of borrowed money,
(ii)evidenced by bonds, notes, debentures or similar instruments or letters of credit (or, without duplication, reimbursement agreements in respect thereof),
(iii)representing the deferred and unpaid balance of the purchase price of any property (including Capital Leases), except (a) any such balance that constitutes a trade payable or similar obligation to a trade creditor in each case accrued in the ordinary course of business and (b) any earn-out obligations, until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP, or
(iv)representing any interest rate Hedging Obligations,
if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon the balance sheet (excluding the notes thereto) of such Person prepared in accordance with GAAP;
(b)Disqualified Stock of such Person;
(c)to the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on the Indebtedness of another Person (other than by endorsement of negotiable instruments for collection in the ordinary course of business); and
(d)to the extent not otherwise included, Indebtedness of another Person secured by a Lien on any asset owned by such Person (whether or not such Indebtedness is assumed by such Person);
provided, however, that notwithstanding the foregoing, Indebtedness shall be deemed not to include (a) Contingent Obligations incurred in the normal course of business and not in respect of borrowed money, (b) obligations under or in respect of Securitization Financings, or (c) items that would appear as a liability on a balance sheet prepared in accordance with GAAP as a result of the application of EITF 97-10, “The Effect of Lessee Involvement in Asset Construction.”
“Indenture” means this Indenture, as amended or supplemented from time to time.
“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.
“Institutional Accredited Investor” means an institution that is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not also QIBs.
“Investment Grade” means (1) BBB — (with a stable outlook) or above, in the case of S&P (or its equivalent under any successor Rating Categories of S&P) and Baa3 (with a stable outlook) or above, in the case of Moody's (or its equivalent under any successor Rating Categories of Moody's), or (2) the equivalent to the foregoing in respect of the Rating Categories of any other Rating Agencies.
“Issue Date” means October 14, 2014.
“Joint Venture” means, with respect to any Person, any partnership, corporation or other entity in which up to and including 50% of the Equity Interests is owned, directly or indirectly, by such Person and/or one or more of its Subsidiaries. A Joint Venture shall not be treated as a Subsidiary.
“Legended Regulation S Global Note” means a Global Note in the form of Exhibit A bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount at maturity of the Notes initially sold in reliance on Rule 903 of Regulation S.
“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, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to constitute a Lien.
“Measurement Period” means, at any date of determination, the most recently completed four fiscal quarters of the Company for which financial statements have been filed with the Commission, or in the event that, at any date of determination, neither the Company nor Parent is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the most recently completed four fiscal quarters of the Company for which internal financial statements are available.
“Moody's” means Moody's Investors Service, Inc. and any successor to its rating agency business.
“Net Income” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends or accretion of any Preferred Stock.
“Non-US. Person” means a Person who is not a U.S. Person.
“Note Guarantee” means any Guarantee of the obligations of the Company under this Indenture and the Notes issued hereunder by a Guarantor in accordance with the provisions of this Indenture.
“Notes” has the meaning assigned to it in the preamble to this Indenture. The Initial Notes and any Additional Notes shall be treated as a single class for all purposes under this Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes.
“Offering Memorandum” means that certain final offering memorandum, dated October 7, 2014, relating to the offering and sale of the Initial Notes.
“Officer” means the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, the Chief Accounting Officer, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary, director or managing director, or any equivalent of the foregoing, or any Person duly authorized to act for on behalf, of the Company or any Guarantor, as applicable.
“Officers' Certificate” means a certificate signed on behalf of the Company or any Guarantor, as applicable, by two Officers of the Company or such Guarantor, as applicable, one of whom is the Chairman of the Board of Directors, the Chief Executive Officer, the Chief Financial Officer, the Treasurer or the Chief Accounting Officer, or the equivalent, of the Company or such Guarantor, as applicable.
“Opinion of Counsel” means an opinion from legal counsel that meets the requirements of Section 12.05 hereof. The counsel may be an employee of or counsel to the Company or any Subsidiary of the Company.
“Parent” means Sensata Technologies Holding N.V., a public limited liability company incorporated under the laws of the Netherlands or any successor or other entity that serves as a parent company to the Company.
“Participant” means, with respect to the Depositary, a Person who has an account with the Depositary.
“Permitted Bank Indebtedness” means any Indebtedness of the Company or any Subsidiary of the Company pursuant to one or more credit facilities with banks or other lenders providing for revolving credit loans or term loans or the issuance of letters of credit or bankers' acceptances or the like and Guarantees of such Indebtedness by the Company or any Subsidiary of the Company; provided that the aggregate principal amount of such Permitted Bank Indebtedness at any time outstanding does not exceed $250.0 million.
“Permitted Business” means the business and any services, activities or businesses incidental, or directly related or similar to, any line of business engaged in by the Company and its Subsidiaries as of the Issue Date or any business activity that is a reasonable extension, development or expansion thereof or ancillary thereto.
“Permitted Holders” means (i) each of the Sponsors and their respective Affiliates, but not including, however, any portfolio companies of any of the Sponsors, (ii) Officers, provided that if such Officers beneficially own more shares of Voting Stock of the Company or any of its direct or indirect parent entities than the number of such shares beneficially owned by all the Officers as of the Issue Date or acquired by Officers within 90 days immediately following the Issue Date, such excess shall be deemed not to be beneficially owned by Permitted Holders, and (iii) any “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing are members, provided that in the case of such “group” and without giving effect to the existence of such “group” or any other “group,” such Sponsors, Affiliates and Officers (subject, in the case of Officers, to the foregoing limitation), collectively, have beneficial ownership, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company or any of its direct or indirect parent entities held by such “group.”
“Permitted Liens” means:
(1)Liens securing Permitted Bank Indebtedness;
(2)Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations;
(3)(a) Liens given to secure the payment of the purchase price or other acquisition, installation or construction costs incurred in connection with the acquisition (including acquisition through merger or consolidation) of any Principal Property, including Capital Lease transactions in connection with any such acquisition and including any purchase money Liens, and (b) Liens existing on any Principal Property at the time of acquisition (including acquisition through merger or consolidation) thereof or at the time of acquisition by the Company or any Subsidiary of any Person then owning such property whether or not such
existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (a), the Liens shall be given within 12 months after such acquisition and shall attach solely to the Principal Property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof;
(4)Liens in favor of the Company or a Subsidiary of the Company;
(5)Liens on any Principal Property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such Principal Property;
(6)Liens imposed by law, such as carriers', warehousemen's and mechanic's Liens and other similar Liens arising in the ordinary course of business, Liens in connection with legal proceedings and Liens arising solely by virtue of any statutory or common law provision relating to banker's Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution;
(7)Liens for taxes, assessments or other governmental charges not yet overdue for a period of more than 30 days or subject to penalties for non-payment or which are being contested in good faith by appropriate proceedings;
(8)Liens to secure the performance of bids, trade or commercial contracts, government contracts, purchase, construction, sales and servicing contracts (including utility contracts), leases, statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business and to secure letters of credit, Guarantees, bonds or other sureties given in connection with the foregoing or in connection with workers' compensation, unemployment insurance or other types of social security or similar laws and regulations;
(9)licenses of intellectual property of the Company and its Subsidiaries granted in the ordinary course of business;
(10)Liens to secure Indebtedness incurred by Foreign Subsidiaries pursuant to Section 4.09(b) (10);
(11)Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person's obligation in respect of banker's acceptances issued or created in the ordinary course of business for the account of such Person to facilitate the purchase, shipment, or storage of such inventory or other goods;
(12)Liens to secure Qualified Securitization Financings;
(13)Liens on stock, partnership or other equity interests in any Joint Venture of the Company or any of its Subsidiaries or in any Subsidiary of
the Company that owns an equity interest in a Joint Venture to secure Indebtedness contributed or advanced solely to that Joint Venture; provided that, in each case, the Indebtedness secured by such Lien is not secured by a Lien on any other property of the Company or any Subsidiary of the Company;
(14)Liens and deposits securing netting services, business credit card programs, overdraft protection and other treasury, depository and cash management services or incurred in connection with any automated clearing-house transfers of funds or other fund transfer or payment processing services;
(15)Liens on, and consisting of, deposits made by the Company to discharge or defease the Notes and this Indenture, the 2019 Notes, the 2023 Notes or any other Indebtedness;
(16)Liens on insurance policies and the proceeds thereof incurred in connection with the financing of insurance premiums;
(17)easements, rights of way, minor encroachments, protrusions, municipal and zoning and building ordinances and similar charges, encumbrances, title defects or other irregularities, governmental restrictions on the use of property or conduct of business, and Liens in favor of governmental authorities and public utilities, that do not materially interfere with the ordinary course of business of the Company and its Subsidiaries, taken as a whole; or
(18)any extension, renewal, substitution or replacement (or successive extensions, renewals, substitutions or replacements), in whole or in part, of any Lien referred to in the preceding clauses (1) through (17), inclusive.
“Person” means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization, limited liability company or government or other entity.
“Preferred Stock” means any Equity Interest with preferential rights of payment of dividends upon liquidation, dissolution or winding up.
“Principal Property” means, with respect to any Person, all of such Person's interests in any kind of property or asset (including the capital stock in and other securities of any other Person), except such as the Board of Directors by resolution determines in good faith (taking into account, among other things, the materiality of such property to the business, financial condition and earnings of the Company and its Subsidiaries taken as a whole) not to be material to the business of the Company and its Subsidiaries, taken as a whole.
“Private Placement Legend” means the legend set forth in Section 2.06(g)(i) hereof to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Qualified Securitization Financing” means any Securitization Financing of a Securitization Subsidiary that meets the following conditions: (i) the Board of Directors of the Company shall have determined in good faith that such Qualified Securitization Financing (including financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to the Company and the Securitization Subsidiary, (ii) all sales of Securitization Assets and related assets to the Securitization Subsidiary are made at fair market value (as determined in good faith by the Company) and (iii) the financing terms, covenants, termination events and other provisions thereof shall be market terms (as determined in good faith by the Company) and may include Standard Securitization Undertakings. The grant of a security interest in any Securitization Assets of the Company or any of its Subsidiaries (other than a Securitization Subsidiary) to secure Indebtedness under the Credit Agreement and any Credit Agreement Refinancing Indebtedness (as defined in the Credit Agreement) with respect thereto shall not be deemed a Qualified Securitization Financing.
“Rating Agency” means (1) S&P and Moody's or (2) if S&P or Moody's or both of them are not making ratings publicly available, a nationally recognized statistical rating organization within the meaning of Section 3(62) under the Exchange Act, as the case may be, selected by the Company in its discretion, which will be substituted for S&P or Moody's or both, as the case may be.
“Rating Category” means (1) with respect to S&P, any of the following categories (any of which may include a “+” or a “-”: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor categories), (2) with respect to Moody's, any of the following categories: Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories), and (3) the equivalent of any such categories of S&P or Moody's used by another Rating Agency, if applicable.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Global Note” means a Legended Regulation S Global Note or an Unlegended Regulation S Global Note, as appropriate.
“Responsible Officer,” when used with respect to the Trustee, means any officer within the Corporate Trust Department of the Trustee (or any successor group of the Trustee) 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, in each case having direct responsibility for the administration of this Indenture.
“Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.
“Restricted Global Note” means a Global Note bearing the Private Placement Legend.
“Restricted Period” means the 40-day distribution compliance period as defined in Regulation S, which period shall terminate (a) on November 23, 2014 with respect to the Initial Notes and (b) on such date as set forth in the applicable supplemental indenture entered into pursuant to Section 9.01(viii) with respect to any Additional Notes.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“Rule 903” means Rule 903 promulgated under the Securities Act.
“Rule 904” means Rule 904 promulgated under the Securities Act.
“S&P” means Standard & Poor's Financial Services LLC, a subsidiary of McGraw-Hill Financial, Inc., and any successor to its rating agency business.
“Schrader Acquisition” means the acquisition of all of the outstanding shares of Capital Stock of August Cayman pursuant to the Schrader Acquisition Agreement.
“Schrader Acquisition Agreement” means the Share Purchase Agreement, dated as of August 15, 2014, among the Company, Schrader International, Inc. and, for certain limited purposes, Sensata Technologies Holdings N.V., as it may be amended, amended and restated, supplemented or otherwise modified from time to time.
“Schrader Acquisition Deadline” means December 30, 2014.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Securitization Assets” means any accounts receivable or other revenue streams subject to a Qualified Securitization Financing.
“Securitization Fees” means reasonable distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Securitization Subsidiary in connection with any Qualified Securitization Financing.
“Securitization Financing” means any transaction or series of transactions that may be entered into by the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries may sell, convey or otherwise transfer to (a) a Securitization Subsidiary (in the case of a transfer by the Company or any of its Subsidiaries) and (b) any other Person (in the case of a transfer by a Securitization Subsidiary), or may grant a security interest in, any Securitization Assets (whether now existing or arising in the future) of the Company or any of its Subsidiaries, and any assets related thereto including, without limitation, all collateral securing such Securitization Assets, all contracts and all guarantees or other obligations in respect of such Securitization Assets, proceeds of such Securitization Assets and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving Securitization Assets and any Hedging Obligations entered into by the Company or any such Subsidiary in connection with such Securitization Assets.
“Securitization Repurchase Obligation” means any obligation of a seller of Securitization Assets in a Qualified Securitization Financing to repurchase Securitization Assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including, without limitation, as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, off set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
“Securitization Subsidiary” means any Subsidiary of the Company (or another Person) formed for the purposes of engaging in one or more Qualified Securitization Financings and other activities reasonably related thereto.
“Senior Management” means the Chief Executive Officer or the Chief Financial Officer, or the equivalent of the foregoing, of the Company or Parent.
“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 (except, with respect to each test contained therein, substituting 20 percent instead of 10 percent as the applicable threshold).
“Special Mandatory Redemption Date” means a date that is no later than five Business Days after the Schrader Acquisition Termination Date.
“Special Mandatory Redemption Price” means a redemption price equal to 100% of the outstanding aggregate principal amount of the Notes, plus accrued and unpaid interest thereon from the Issue Date to, but excluding, the Special Mandatory Redemption Date as calculated by the Company.
“Specified Financings” means the entry into the Credit Agreement and the borrowings made thereunder, the 2019 Notes, the 2023 Notes and the offering of the Notes.
“Sponsors” means Bain Capital Partners LLC and its Affiliates and CCMP Asia Equity Partners.
“Standard Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by the Company or any Subsidiary of the Company which the Company has determined in good faith to be customary in a Securitization Financing, including, without limitation, those relating to the servicing of the assets of a Securitization Subsidiary, it being understood that any Securitization Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking.
“Stated Maturity,” when used with respect to any Note or any installment of principal thereof or interest thereon, means the date specified in such Note as the fixed date on which the principal of such Note or such installment of principal or interest is due and payable.
“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 that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and
(2)any partnership, joint venture, limited liability company or similar entity of which (x) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise and (y) such Person or any Wholly Owned Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
“TIA” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).
“Treasury Rate” means, as of the applicable redemption date, the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) which has become publicly available at least two Business Days prior to the date fixed for prepayment (or, if such Statistical Release is no longer published, any publicly available source for similar market data)) most nearly equal to the then remaining term of the Notes; provided, however, that if the then remaining term of the Notes is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Treasury Rate will be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the then remaining term of the Notes is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.
“Trustee” means The Bank of New York Mellon, a New York banking corporation, until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
“Unlegended Regulation S Global Note” means a permanent Global Note in the form of Exhibit A bearing the Global Note Legend, deposited with or on behalf of and registered in the name of the Depositary or its nominee and issued upon expiration of the Restricted Period.
“Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required to bear the Private Placement Legend.
“Unrestricted Global Note” means a Global Note that does not bear and is not required to bear the Private Placement Legend.
“U.S. Government Securities” means securities that are
(a)direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged; or
(b)obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of the issuers thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government Securities or a specific payment of principal of or interest on any such U.S. Government Securities held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Securities or the specific payment of principal of or interest on the U.S. Government Securities evidenced by such depository receipt.
“U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act.
“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time ordinarily entitled to vote in the election of the Board of Directors of such Person.
“Wholly Owned Subsidiary” of any Person means a Subsidiary of such Person, 100% of the outstanding Capital Stock or other ownership interests of which (other than directors' qualifying shares and shares issued to foreign nationals under applicable law) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of such Person or by such Person and one or more Wholly Owned Subsidiaries of such Person.
Section 1.02 Other Definitions.
| | | | | |
| Term | Defined
in Section |
| “Additional Amounts” | 4.01 |
| “Additional Taxing Jurisdiction” | 4.01 |
| “Applicable Law” | 4.01 |
| “Authentication Order” | 2.02 |
| “Change of Control Offer” | 4.15 |
| “Change of Control Payment” | 4.15 |
| “Change of Control Payment Date” | 4.15 |
| “Change in Tax Law” | 3.07 |
| “Covenant Defeasance” | 8.03 |
| “Event of Default” | 6.01 |
| “Initial Default” | 6.01 |
| “Legal Defeasance” | 8.02 |
| “Minimum Dollar Denomination” | 2.01 |
| “Notation of Guarantee” | 10.03 |
| “Paying Agent” | 2.03 |
| “Registrar” | 2.03 |
| “Relevant Taxing Jurisdiction” | 4.01 |
| “Reversion Date” | 4.19 |
| “Schrader Acquisition Termination Date” | 3.08 |
| “Special Mandatory Redemption” | 3.08 |
| “Subsidiary Debt” | 4.09 |
| “Successor Company” | 5.01 |
| “Suspended Provisions” | 4.19 |
| “Suspension Date” | 4.19 |
| “Suspension Period” | 4.19 |
| “Taxes” | 4.01 |
Section 1.03 Incorporation by Reference of Certain Provisions and Defined Terms in the Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision 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 and the Note Guarantees; and
“obligor” on the indenture securities means the Company and the Guarantors, respectively, and any successor obligor upon the indenture securities, respectively.
All other terms used in this Indenture that are defined by the TIA, defined by the TIA by reference to another statute or defined by the Commission rule under the TIA have the meanings so assigned to them by such definitions.
This Indenture has not been qualified under the TIA and no provision of the TIA shall be deemed a part of this Indenture except as specifically set forth herein.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(ii)a term has the meaning assigned to it;
(iii)an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(iv)“or” is not exclusive;
(v)words in the singular include the plural, and words in the plural include the singular;
(vi)“will” shall be interpreted to express a command;
(vii)provisions apply to successive events and transactions; and
(viii)references to sections of or rules under the Securities Act will be deemed to include substitute, replacement of successor sections or rules adopted by the Commission from time to time.
Article 2
THE NOTES
Section 2.01 Form and Dating.
(a)General. The Notes and the Trustee's certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The Notes shall be in minimum denominations of $2,000 (the “Minimum Dollar Denomination”) and any integral multiple of $1,000 in excess thereof.
The terms and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and the Company, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
(b)Rule 144A Global Notes. Notes offered and sold in reliance on Rule 144A shall be issued initially in the form of a 144A Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for the Depositary and registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated Participants in the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided. Each Global Note will represent such of the outstanding Notes as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee or the custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.
(c)Regulation S Global Notes. Notes offered and sold in reliance on Regulation S shall be issued initially in the form of the Legended Regulation S Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for the Depositary, and registered in the name of the Depositary or the nominee of the Depositary for the accounts of the designated Participants in the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided. Following the termination of the Restricted Period, beneficial interests in a Legended Regulation S Global Note shall be exchanged for beneficial interests in an Unlegended Regulation S Global Note pursuant to Section 2.06 and the Applicable Procedures. Simultaneously with the authentication of Unlegended Regulation S Global Notes, the Trustee shall cancel such Legended Regulation S Global Note. The aggregate principal amount of the Regulation S Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee, as the case may be, in connection with transfers of interest as hereinafter provided.
(d)Depositary. The Company has initially appointed DTC to act as Depositary with respect to the Global Notes.
(e)Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream will be applicable to transfers of beneficial interests in the Regulation S Global that are held by Euroclear or Clearstream as Participants in DTC.
(f)None of the Trustee or any Agent shall have any responsibility or obligation to any beneficial owner of an interest in a Global Note, a member of, or a Participant or Indirect Participant in, the Depositary or other Person, with respect to the accuracy of the
records of the Depositary or its nominee or of any Participant, Indirect Participant or member thereof, with respect to any ownership interest in the Global Notes or with respect to the delivery to any Participant, Indirect Participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the Applicable Procedures of the Depositary. The Trustee and each Agent may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, Participants, Indirect Participants and any beneficial owners.
Section 2.02 Execution and Authentication.
At least one Officer must sign the Notes for the Company by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note will nevertheless be valid.
A Note will not be valid until authenticated by the manual signature of the Trustee. The signature will be conclusive evidence that the Note has been authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Company signed by two Officers of the Company (an “Authentication Order”), authenticate Notes for original issue that may be validly issued under this Indenture, including any Additional Notes. The aggregate principal amount of Notes outstanding at any time may not exceed the aggregate principal amount of Notes authorized for issuance by the Company pursuant to one or more Authentication Orders, except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Company.
Section 2.03 Agents.
The Company will maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar will keep a register of the Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company will notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company may remove any Registrar or Paying Agent upon written notice to such Registrar or Paying Agent and to the Trustee; provided, however, that no such removal shall become effective until (i) if applicable, acceptance of an appointment by a successor as evidenced by an appropriate agreement entered into by the Company and such successor Registrar or Paying Agent, as the case may be, and delivered to the Trustee or (ii) notification to the Trustee that the Trustee shall serve as Registrar or Paying Agent until the appointment of a successor in accordance with clause (i) above. The Registrar or Paying Agent may resign at any time upon written notice to the Company and the Trustee; provided, however, that the Trustee may resign as Paying Agent or Registrar only if the Trustee also resigns as Trustee in accordance with Section 7.08.
The Company initially appoints the Trustee to act as the Registrar and Paying Agent with respect to the Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Company will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium or interest on the Notes, and will notify the Trustee in writing of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by such Paying Agent. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) will have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee will serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee will preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company will furnish or cause the Registrar to furnish to the Trustee at least seven Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes and the Company shall otherwise comply with TIA § 312(a).
Section 2.06 Transfer and Exchange.
(a)Transfer and Exchange of Global Notes. A Global Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the Company for Definitive Notes if:
(A)The Depositary (1) notifies the Company that it is unwilling or unable to continue as Depositary for the Global Notes or (2) has ceased to be a clearing agency registered under the Exchange Act and the Company thereupon fails to appoint a successor Depositary within 120 Business Days;
(B)the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of such Definitive Notes in exchange for beneficial interest in the Global Notes; or
(C)there shall have occurred and be continuing a Default or an Event of Default with respect to the Notes.
Upon the occurrence of either of the preceding events in (A), (B) or (C) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a), however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (d).
(b)Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes will be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also will require compliance with either subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(i)Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend; provided, however, that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Legended Regulation S Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person. Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note.
No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(i).
(ii)All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(i) above, the transferor of such beneficial interest must deliver to the Registrar either:
(A)both (1) and (2):
(1)a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged; and
(2)instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or
(B)both (1) and (2):
(1)a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and
(2)instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (B)(1) above,
provided, that in no event shall Definitive Notes be issued upon the transfer or exchange of beneficial interests in the Legended Regulation S Global Note prior to the expiration of the Restricted Period and the receipt by the Registrar of a certificate from the transferor stating that the transfer complies with Rule 903 and Rule 904 of the Securities Act.
Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Notes pursuant to Section 2.06(h) hereof.
(iii)Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.06(b)(ii) above and the Registrar receives the following:
(A)if the transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; and
(B)if the transferee will take delivery in the form of a beneficial interest in the Legended Regulation S Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof.
(iv)Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.06(b)(ii) above and the Registrar receives the following:
(1)if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or
(2)if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Company so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Company to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
If any such transfer is effected at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to subparagraph (iv) above.
(v)Transfer and Exchange of Beneficial Interests in an Unrestricted Global Note for Beneficial Interests in a Restricted Global Note. Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.
(c)Transfer and Exchange of Beneficial Interests for Definitive Notes.
(i)Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation:
(A)if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;
(B)if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate from the transferor to the
effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
(C)if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;
(D)if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E)if such beneficial interest is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3)(d) thereof, if applicable;
(F)if such beneficial interest is being transferred to the Company or any of its Subsidiaries, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G)if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Company shall execute and the Trustee shall authenticate upon receipt of an Authentication Order in accordance with Section 2.02 hereof and deliver to the Person designated in the instructions a Restricted Definitive Note in the appropriate principal amount. Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Restricted Definitive Notes to the Persons in whose names such Notes are so registered. Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.
(ii)Beneficial Interests in Legended Regulation S Global Note to Definitive Notes. Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a
beneficial interest in the Legended Regulation S Global Note may not be exchanged for a Definitive Note or transferred to a Person who takes delivery thereof in the form of a Definitive Note prior to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar of a certificate from the transferor stating (x) that the transfer complies with Rule 903 and Rule 904 of the Securities Act; or (y) that the transfer is made pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.
(iii)Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if the Registrar receives the following:
(1)if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or
(2)if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Company so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Company to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(iv)Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof, the Trustee will cause the aggregate principal amount of the Unrestricted Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Company will execute and the Trustee will authenticate upon receipt of an Authentication Order in accordance with Section 2.02 hereof and deliver to the Person designated in the instructions an Unrestricted Definitive Note in the appropriate principal amount. Any Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) will be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest requests through
instructions to the Registrar from or through the Depositary and the Participant or Indirect Participant. The Trustee will deliver such Unrestricted Definitive Notes to the Persons in whose names such Notes are so registered. Any Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) will not bear the Private Placement Legend.
(d)Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i)Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:
(A)if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;
(B)if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
(C)if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;
(D)if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E)if such Restricted Definitive Note is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3)(d) thereof, if applicable;
(F)if such Restricted Definitive Note is being transferred to the Company or any of its Subsidiaries, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G)if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities
Act, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee will cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global Note, and in the case of clause (C) above, the Regulation S Global Note.
(ii)Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if the Registrar receives the following:
(1)if the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or
(2)if the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Company so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Company to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of this Section 2.06(d)(ii), the Trustee will cancel the Restricted Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.
(iii)Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Unrestricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraphs (ii) or (iii) above at a time when an Unrestricted Global Note has not yet been issued, the Company will issue and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee will authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Unrestricted Definitive Notes so transferred.
(e)Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder's compliance with the provisions of this Section 2.06(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Company duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder must provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).
(i)Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of a Person or Persons who takes delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:
(A)if the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;
(B)if the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and
(C)if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable.
(ii)Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if the Registrar receives the following:
(1)if the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or
(2)if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Company so requests, an Opinion of Counsel in form reasonably acceptable to the Company to the effect that such
exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(iii)Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.
(f)[Intentionally Omitted]
(g)Legends. The following legends will appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.
(i)Private Placement Legend.
(A)Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN “INSTITUTIONAL ACCREDITED INVESTOR”), (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) UNDER THE SECURITIES ACT AFTER THE ORIGINAL ISSUANCE OF THESE NOTES, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO SENSATA TECHNOLOGIES B.V. OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 903 OR RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER IS ANNEXED TO THE INDENTURE AND CAN BE OBTAINED FROM THE TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES OF LESS THAN $100,000 AN OPINION OF COUNSEL ACCEPTABLE TO
SENSATA TECHNOLOGIES B.V. THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED TO IN RULE 144 UNDER THE SECURITIES ACT AFTER THE ORIGINAL ISSUANCE OF THESE NOTES, THE HOLDER MUST DELIVER THE CERTIFICATE OF TRANSFER RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND SENSATA TECHNOLOGIES B.V. SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS SENSATA TECHNOLOGIES B.V. MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
THIS NOTE MAY NOT BE SOLD, TRANSFERRED OR DELIVERED TO ANYONE ANYWHERE IN THE WORLD OTHER THAN TO QUALIFIED INVESTORS WITHIN THE MEANING OF THE PROSPECTIVE DIRECTIVE (2003/71/EC AND AMENDMENTS THERETO, INCLUDING 2010/73/EU) (“QUALIFIED INVESTORS”).
EACH HOLDER OF NOTES, BY PURCHASING THE NOTES, WILL BE DEEMED TO HAVE REPRESENTED AND AGREED FOR THE BENEFIT OF SENSATA TECHNOLOGIES B.V. THAT (1) SUCH HOLDER IS A QUALIFIED INVESTOR AND IS ACQUIRING SUCH NOTES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INVESTOR, THAT (2) SUCH NOTES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO ANYONE ANYWHERE IN THE WORLD OTHER THAN TO A QUALIFIED INVESTOR ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INVESTOR AND THAT (3) THE HOLDER WILL PROVIDE NOTICE OF THE TRANSFER RESTRICTIONS DESCRIBED HEREIN TO ANY SUBSEQUENT TRANSFEREE.
(B)Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii) or (e)(iii) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) will not bear the Private Placement Legend.
(ii)Global Note Legend.
Each Global Note will bear a legend in substantially the following form:
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
THE RIGHTS ATTACHING TO THIS GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
(h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note will be reduced accordingly and an endorsement will be made on such Global Note by the Trustee, to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note will be increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i)To permit registrations of transfers and exchanges, the Company will execute and the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof.
(ii)No service charge will be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 4.15 and 9.04 hereof).
(iii)The Registrar will not be required to register the transfer of or exchange of any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
(iv)All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes will be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(v)Neither the Registrar nor the Company will be required:
(A)to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day the Company gives notice of redemption of the Notes under Section 3.03 hereof or makes a Change of Control Offer pursuant to Section 4.15 hereof and ending at the close of business on the day notice is given or the Change of Control Offer is made, as applicable;
(B)to register the transfer of or to exchange any Note selected for redemption in whole or in part or subject to purchase in a Change of Control Offer, except the unredeemed or unpurchased portion of any Note being redeemed or purchased in part; or
(C)in the case of a redemption or a Change of Control Payment Date occurring after a record date but on or before the corresponding interest payment date, register the transfer or exchange of any Note on or after the record date and before the date of redemption or Change of Control Payment Date, as applicable.
(vi)Subject to the rights of Holders as of the relevant record date to receive interest on the corresponding interest payment date and Section 2.12, prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.
(vii)The Trustee will authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02 hereof.
(viii)[reserved]
(ix)Neither the Trustee nor any Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any tax or securities laws with respect to any restrictions on transfer imposed under this Indenture or under applicable law (including any transfers between or among Participants, Indirect Participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company will issue and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement Note if the Trustee's requirements are met. If required by the Trustee or the Company, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company may charge for their expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and will be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the Trustee except (i) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (ii) Notes for the payment or redemption of which money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside, segregated and held in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Notes; provided that, if such Notes are to be redeemed prior to the maturity thereof, written notice of such redemption has been duly given pursuant to this Indenture, or provision satisfactory to the Trustee shall have been made for giving such notice; and (iii) Notes in substitution for which other Notes shall have been authenticated and delivered, or which shall have been paid, pursuant to the terms of this Indenture (except with respect to any such Note as to which proof satisfactory to the Trustee is presented that such Note is held by a Person in whose hands such Note is a legal, valid and binding obligation of the Company). Except as set forth in Section 2.08 hereof, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note; however, Notes held by the Company or a Subsidiary of the Company shall not be deemed to be outstanding for purposes of Section 9.02 hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee and the Registrar receive proof satisfactory to each of them that the replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay all principal, premium and accrued interest with respect to the outstanding Notes payable on that date and the Paying Agent is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture then on and after that date such Notes will be deemed to be no longer outstanding and will cease to accrue interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in any direction, request, waiver or consent in the exercise of any discretion, power or authority (whether contained in this Indenture or vested by operation of law) which the Trustee is required, expressly or impliedly, to exercise in or by reference to the interests of the Holders or any of them, Notes owned by the Company or any Guarantor, or by an Affiliate of the Company or any Guarantor, will be considered as though not outstanding, except that for the purposes of determining whether the Trustee will be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee knows are so owned will be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, will authenticate temporary Notes. Temporary Notes will be substantially in the form of certificated Notes but may have variations that the Company considers appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without unreasonable delay, the Company will prepare and the Trustee will authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the benefits of this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent will forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and will dispose of such canceled Notes in its customary manner (subject to the record retention requirement of the Exchange Act). Certification of the destruction of all canceled Notes will be delivered to the Company. The Company may not issue new Notes to replace Notes that it has redeemed, purchased or paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it will pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Company will notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Company will fix or cause to be fixed each such special record date and payment date; provided, that no such special record date may be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in
the name and at the expense of the Company) will give or cause to be given to Holders in accordance with Section 12.02 a notice prepared by the Company that states the special record date, the related payment date and the amount of such interest to be paid.
Section 2.13 CUSIP Numbers and ISIN Numbers.
The Company in issuing the Notes may use “CUSIP” numbers and “ISINs” (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers and “ISINs” in notices of redemption as a convenience to Holders; provided, that any such notice may state that no representation is made as to the correctness of such numbers, either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers or “ISINs.”
Article 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at least five days prior to the date notice of redemption is to be delivered to the Holders of the Notes in accordance with Section 3.03 (unless a shorter time is acceptable to the Trustee), an Officers' Certificate setting forth:
(i)the clause of this Indenture pursuant to which the redemption shall occur;
(ii)the redemption date;
(iii)the principal amount of Notes to be redeemed;
(iv)the redemption price;
(v)the applicable CUSIP numbers; and
(vi)a statement that the conditions precedent to such redemption have been satisfied.
Section 3.02 Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed at any time, the Trustee will select Notes for redemption as follows:
(i)if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the Notes are listed; or
(ii)if the Notes are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem fair and appropriate,
in each case, subject to the procedures of DTC as applicable.
In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or purchased will be selected, unless otherwise provided herein, not less than 30 days nor more than 60 days prior to the redemption date by the Trustee from the outstanding Notes not previously called for redemption or otherwise in accordance with the procedures of DTC, as applicable.
The Trustee will promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed. No Notes in principal amounts equal to or less than the Minimum Dollar Denomination can be redeemed in part.
Section 3.03 Notice of Optional Redemption.
(a)Except for redemption pursuant to Section 3.07(e), notices of optional redemption will be given at least 30 but not more than 60 days before the redemption date to each Holder of Notes to be redeemed in accordance with Section 12.02, except that redemption notices may be given more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture.
(b)If any Note is to be optionally redeemed, the notice of redemption that relates to that Note will state:
(i)the clause of this Indenture pursuant to which the redemption shall occur;
(ii)the redemption date;
(iii)the principal amount of Notes to be redeemed;
(iv)the redemption price;
(v)applicable CUSIP numbers;
(vi)a statement that the conditions precedent to such redemption have been satisfied.
(c)At the Company's written request delivered at least 35 days prior to the redemption date unless the Trustee consents to a shorter period, the Trustee will give the notice of optional redemption in the Company's name and at its expense; in such event, the Company shall provide the Trustee with the information required by this Section 3.03.
(d)If any optional redemption or notice is subject to satisfaction of one or more conditions precedent, the notice shall state that, in the Company's discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied on or prior to one Business Day prior to the redemption date, or by the redemption date so delayed.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is given in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price and interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date unless the Company defaults in the payment of the redemption price or accrued interest or any Additional Amounts.
Section 3.05 Deposit of Redemption Price.
On or prior to 11:00 a.m., New York City time, on the Business Day immediately preceding the redemption date, the Company will deposit with the Trustee or with the Paying Agent, money sufficient to pay the redemption price of and accrued interest on all Notes to be redeemed on the redemption date. The Trustee or the Paying Agent will promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption price of, and accrued interest on, all Notes to be redeemed following the redemption date.
If the Company complies with the provisions of the preceding paragraph, on and after the redemption date, interest will cease to accrue on the Notes or the portions of Notes called for redemption. If a 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 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 is not so paid upon surrender for redemption because of the failure of the Company to comply with the preceding paragraph, interest 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 4.01 hereof.
Section 3.06 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company will issue and, upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered.
Section 3.07 Optional Redemption.
(a)[Intentionally Omitted]
(b)Except pursuant to Section 3.07(d) or (e), the Notes will not be optionally redeemable by the Company; provided, however, the Company may acquire the Notes by means other than an optional redemption.
(c)[Intentionally Omitted]
(d)At any time and from time to time, upon not less than 30 nor more than 60 days' notice to the Holders, the Company may redeem some or all of the Notes at a price calculated by the Company of 100% of the principal amount of the Notes redeemed plus the Applicable Premium, plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of Holders of record on the record date to receive interest due on the interest payment date).
(e)The Company may, at its option, redeem the Notes, in whole but not in part, at any time upon not less than 15 days' nor more than 30 days' notice to the Holders (which notice shall be irrevocable and given in accordance with Section 3.03), at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the redemption date, premium, if any, and all Additional Amounts, if any, then due and which will become due on the date of redemption as a result of the redemption or otherwise, if the Company determines in good faith that the Company or any Guarantor is, or on the next date on which any amount would be payable in respect of the Notes, would be obligated to pay Additional Amounts in respect of the Notes pursuant to the terms and conditions thereof, which the Company or such Guarantor, as the case may be, cannot avoid by the use of reasonable measures available to it (including, without limitation, making payment through a Paying Agent located in another jurisdiction), as a result of:
(1)any change in, or amendment to, the laws or treaties (or any regulations, official guidance or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction affecting taxation which becomes effective on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction that arises after the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under this Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder); or
(2)any change in the official application, administration, or interpretation of the laws, treaties, regulations, official guidance or rulings of any Relevant Taxing Jurisdiction (including a holding, judgment, or order by a court of competent jurisdiction), on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction has changed since the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under this Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder) (each of the foregoing clauses (1) and (2), a “Change in Tax Law”).
Notwithstanding the foregoing, the Company may not redeem the Notes under this provision if a Relevant Taxing Jurisdiction changes under this Indenture and the Company is obligated to pay Additional Amounts as a result of a Change in Tax Law of such Relevant Taxing Jurisdiction which was officially announced at the time the latter became a Relevant Taxing Jurisdiction.
In the case of a Guarantor that becomes a party to this Indenture after the Issue Date or a successor Person (including a surviving entity), the Change in Tax Law must become effective after the date that such entity (or another Person organized or resident in the same jurisdiction) first makes a payment on the Notes. In the case of Additional Amounts required to be paid as a result of the Company conducting business in an Additional Taxing Jurisdiction, the Change in Tax Law must become effective after the date the Company begins to conduct the business giving rise to the withholding or deduction.
Notwithstanding the foregoing, no such notice of redemption will be given (a) earlier than 90 days prior to the earliest date on which the Company or any Guarantor, would be obliged to make such payment of Additional Amounts or withholding if a payment in respect of the Notes or the relevant Note Guarantee, as the case may be, were then due and (b) unless at the time such notice is given, the obligation to pay Additional Amounts remains in effect.
Prior to the giving of any notice of redemption pursuant to this Section 3.07(e), the Company will deliver to the Trustee:
(1)an Officers' Certificate stating that the Company is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Company so to redeem have occurred (including that such obligation to pay such Additional Amounts cannot be avoided by the Company or any Guarantor or surviving entity taking reasonable measures available to it); and
(2)a written opinion of independent tax advisers of recognized standing qualified under the laws of the Relevant Taxing Jurisdiction and reasonably satisfactory to the Trustee to the effect that the Company or a Guarantor or surviving entity, as the case may be, is or would be obligated to pay such Additional Amounts as a result of a Change in Tax Law.
The foregoing provisions shall apply mutatis mutandis to any successor Person, after such successor Person becomes a party to this Indenture, with respect to a Change in Tax Law occurring after the time such successor Person becomes a party to this Indenture.
(f)Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Section 3.08 Mandatory Redemption.
(a)Except as described in Section 3.08(b) below, the Company is not required to make any mandatory redemption or sinking fund payments with respect to the Notes.
(b)If (i) the Schrader Acquisition has not been consummated on or prior to the Schrader Acquisition Deadline or (ii) prior to the Schrader Acquisition Deadline, either (x) the Schrader Acquisition Agreement has been terminated or (y) the Company determines in its sole discretion that the conditions to the Schrader Acquisition set forth in the Schrader Acquisition Agreement cannot be satisfied (the earliest to occur of the events described in clauses (i) and (ii), the “Schrader Acquisition Termination Date”), the Company shall redeem (the “Special Mandatory Redemption”) all of the Notes on the Special Mandatory Redemption Date at the Special Mandatory Redemption Price.
(c)If the Company is required to redeem Notes pursuant to the Special Mandatory Redemption provisions of Section 3.08(b) hereof, it must furnish to the Trustee, at least three Business Days (unless a shorter period is acceptable to the Trustee) prior to the date notice of Special Mandatory Redemption is to be delivered to Holders of the Notes in accordance with Section 3.08(d), an Officers' Certificate setting forth:
(i)the clause of this Indenture pursuant to which the Special Mandatory Redemption shall occur;
(ii)the Special Mandatory Redemption Date;
(iii)the principal amount of Notes to be redeemed;
(iv)the Special Mandatory Redemption Price;
(v)the applicable CUSIP numbers; and
(vi)a statement that the conditions precedent set forth in this Indenture to the Special Mandatory Redemption have been satisfied.
(d)The notice of Special Mandatory Redemption will be given not less than three Business Days prior to the Special Mandatory Redemption Date to each Holder in accordance with Section 12.02. The notice of Special Mandatory Redemption may not be conditional.
(e)If any Note is to be mandatorily redeemed pursuant to Section 3.08(b), the notice of redemption that relates to that Note will state the information set forth in Section 3.08(c)(i) through (vi) above.
(f)At the Company's written request delivered no more than three Business Days (unless a shorter period is acceptable to the Trustee) prior to the date notice of Special Mandatory Redemption is to be delivered to Holders, the Trustee will give Holders the notice of Special Mandatory Redemption in the Company's name and at its expense; in such event, the Company shall provide the Trustee with the information required by this Section.
Article 4
COVENANTS
Section 4.01 Payment of Notes.
(a)The Company will pay or cause to be paid the principal of, premium, if any, and interest on, the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest will be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 11:00 a.m. Eastern Time on the Business Day prior to the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal of, premium, if any, and interest then due and the Paying Agent is not prohibited from paying such money to the Holders on the due date pursuant to the terms of this Indenture.
The Company will pay interest on overdue principal at the rate specified therefor in the Notes, and it shall pay interest on overdue installments of interest at the same rate borne by the Notes to the extent lawful.
(b)(i) All payments that the Company makes under or with respect to the Notes and that any Guarantor makes under or with respect to any Note Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charges (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of the United States, any jurisdiction in which the Company or any Guarantor is incorporated, organized, engaged in business for tax purposes or otherwise resident for tax purposes or from or through which any of the foregoing makes any payment on the Notes or by or within any department or political subdivision or governmental authority or in any of the foregoing having the power to tax (each, a “Relevant Taxing Jurisdiction”), unless withholding or deduction is then required by law or by the interpretation or administration of law. If the Company or any Guarantor is required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made
under or with respect to the Notes, the Company or such Guarantor, as the case may be, shall pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by each Holder or beneficial owner of the Notes (including Additional Amounts) after such withholding or deduction will be not less than the amount the Holder or beneficial owner would have received if such Taxes had not been required to be withheld or deducted. If the Company or any Guarantor conducts business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than a Relevant Taxing Jurisdiction and, as a result, is required by the law of such Additional Taxing Jurisdiction to withhold or deduct any amount on account of the Taxes imposed by such Additional Taxing Jurisdiction from payment under the Notes or the Note Guarantees, as the case may be, which would not have been required to be so withheld or deducted but for such conduct of business in such Additional Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply as if references in such provision to “Taxes” included taxes imposed by way of withholding or deduction by any such Additional Taxing Jurisdiction (or any political subdivision thereof or therein).
(ii)Neither the Company nor any Guarantor shall, however, pay Additional Amounts to a Holder or beneficial owner of Notes in respect or on account of:
(A)any Taxes that would not have been imposed or levied by a Relevant Taxing Jurisdiction but for the Holder's or beneficial owner's present or former connection with such Relevant Taxing Jurisdiction (including, without limitation, as a result of being resident for Tax purposes, or being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) (other than the mere receipt or holding of Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes, this Indenture or any Note Guarantee);
(B)any Taxes that are imposed or withheld by reason of the failure of the Holder or Beneficial Owner, following the Company's written request addressed to the Holder (and made at a time that would enable the Holder or beneficial owner acting reasonably to comply with that request) to comply with any certification or identification requirements, whether required or imposed by statute, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(C)any estate, inheritance, gift, excise, sales, transfer, personal property or similar Taxes;
(D)any Tax which is payable other than by deduction or withholding from payments made under or with respect to the Notes or Note Guarantees;
(E)any Tax imposed on or with respect to any payment by the Company or a Guarantor to the Holder if such Holder is a fiduciary or partnership or person other than the sole beneficial owner of such
payment to the extent that Taxes would not have been imposed on such payment had the beneficiary, partner or other beneficial owner directly held the Note;
(F)any Tax that is imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of the Notes for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the Beneficial Owner or Holder thereof would have been entitled to Additional Amounts had the Notes been presented for payment on any date during such 30 day period;
(G)any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed or levied on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive;
(H)any Tax that is imposed or levied on or with respect to a Note presented for payment on behalf of a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Note to another Paying Agent in a member state of the European Union;
(I) any Taxes imposed pursuant to Sections 1471 to 1474 (inclusive) of the Code including any current or future Treasury regulations or other official interpretations or guidance thereunder; or
(J) any combination of the items above.
(iii)The Company and each Guarantor shall (A) make such withholding or deduction required by applicable law and (B) remit the full amount deducted or withheld to the relevant taxing authority in accordance with applicable law.
(iv)At least 30 calendar days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Company and any Guarantor shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it will be promptly thereafter), the Company shall deliver to the Trustee an Officers' Certificate stating that such Additional Amounts will be payable and the amounts so payable and shall set forth such other information (other than the identities of Holders and Beneficial Owners) necessary to enable the Trustee or the Paying Agent, as the case may be, to pay such Additional Amounts to Holders on the relevant payment date. The Company shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing payment of such Additional Amounts.
(v)The Company or the relevant Guarantor shall furnish to the Trustee and each Holder within a reasonable time certified copies of tax receipts evidencing the payment
by the Company or such Guarantor, as the case may be, of any Taxes imposed or levied by a Relevant Taxing Jurisdiction. If, notwithstanding the reasonable best efforts of the Company or such Guarantor to obtain such receipts, the same are not obtainable, then the Company or such Guarantor shall provide the Trustee and the Holders with other evidence reasonably satisfactory to the Trustee or the Holders of such payment by the Company or such Guarantor.
(vi)If the Company or any Guarantor conducts business in any Additional Taxing Jurisdiction other than a Relevant Taxing Jurisdiction and, as a result, is required by the law of such Additional Taxing Jurisdiction to withhold or deduct any amount on account of the Taxes imposed by such Additional Taxing Jurisdiction from payment under the Notes or the related Note Guarantee, as the case may be, which would not have been required to be so withheld or deducted but for such conduct of business in such Additional Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply as if references in such provision to “Taxes” included taxes imposed by way of withholding or deduction by any such Additional Taxing Jurisdiction (or any political subdivision thereof or therein).
(vii)The Company and each Guarantor shall pay (A) any present or future stamp, issue, registration, court documentation, excise or property taxes or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the execution, issue, delivery or registration of the Notes, any Note Guarantee or this Indenture or any other document or instrument referred to hereunder and any such taxes, charges, duties or similar levies imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes, such Note Guarantee or this Indenture or any such other document or instrument following the occurrence of any Event of Default, and (B) any stamp, court, or documentary taxes (or similar charges or levies) imposed with respect to the receipt of any payments with respect to the Notes or such Note Guarantee. Neither the Company nor any Guarantor shall, however, pay such amounts that are imposed on or result from a sale or other transfer or disposition by a Holder or Beneficial Owner.
(viii)This Section 4.01(b) shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Company or any Guarantor is organized, incorporated or otherwise resident for tax purposes and any political subdivision or taxing authority or agency thereof or therein.
(c)In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to this Indenture in effect from time to time (“Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Company agrees (i) to provide to the Trustee and each Paying Agent sufficient information about the parties and/or transactions (including any modification to the terms of such transactions) so the Trustee and each Paying Agent can determine whether it has tax related obligations under Applicable Law, (ii) that the Trustee and each Paying Agent shall be entitled to make any withholding or deduction from payments to the extent necessary to comply with Applicable Law for which the Trustee and each Paying Agent shall not have any liability, and (iii) to hold harmless the Trustee and each Paying Agent for any losses it may suffer due to the actions it takes to comply with Applicable Law. The terms of this Section 4.01(c) shall survive the termination, defeasance or discharge of this Indenture.
Section 4.02 Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served (other than the type contemplated by Section 12.09). The Company 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 Company fails to maintain any such required office or agency or fails 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.
The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission will in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, the City of New York for such purposes. The Company 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.
The Company hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.03 hereof.
Section 4.03 Reports.
(a)The Company will furnish to the Trustee and the Holders of the Notes in the manner specified below:
(i)within 90 days after the end of each fiscal year ending December 31, an annual report of the Company containing substantially all the financial information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, including a “Management's Discussion and Analysis of Financial Condition and Results of Operations” section and a report on the annual financial statements by the Company's independent registered public accounting firm; provided that such annual report will not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(ii)within 45 days after the end of each of the first three fiscal quarters of each fiscal year, quarterly reports of the Company containing substantially all the financial information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act, including a “Management's Discussion and Analysis of Financial Condition and Results of Operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(iii)within ten Business Days after the occurrence of each event that would have been required to be reported in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required to be contained in a current report on Form 8-K under the Exchange Act pursuant to Sections 1, 2 (other than Item 2.02) and 4 and Items 5.01, 5.02 (other than any compensation-related information) and 5.03 of Form 8-K if the Company had been a reporting company under the Exchange Act; provided, however, that no such current report will be required to (i) be furnished if the Company determines in its good faith judgment that such event is not material to Holders or the business, assets, operations, financial positions or prospects of the Company and its Subsidiaries, taken as a whole, or if the Company determines in its good faith judgment that such disclosure would otherwise cause material competitive harm to the business, assets, operations, financial position or prospects of the Company and its Subsidiaries, taken as a whole; provided that such non-disclosure shall be limited only to those specific provisions that would cause material competitive harm and not the occurrence of the event itself or (ii) contain financial statements or pro forma financial statements.
(b)None of the reports referenced in Section 4.03(a) will be required to comply with Section 302 or Section 404 of the Sarbanes-Oxley Act of 2002, or related Items 307 and 308 of Regulation S-K promulgated by the Commission, or Item 302 of Regulation S-K or Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or Item 601 of Regulation S-K (with respect to exhibits), in each case, as in effect on the Issue Date, and will not be required to contain the separate financial information for Guarantors contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the Commission or to provide financial statements in interactive data format using the eXtensible Business Reporting Language.
(c)To the extent not satisfied by Section 4.03(a), for so long as any Notes are outstanding and constitute “restricted securities” within the meaning of Rule 144 under the Securities Act, the Company will furnish to Holders and to securities analysts and prospective purchasers of the Notes in connection with any sale thereof, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this Section 4.03(c) and Section 4.03(a) may be satisfied by (i) delivering such information electronically to the Trustee and (ii) posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders and prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company and who acknowledge the confidentiality of the information.
(d)Notwithstanding Section 4.03(a) through (c), at all times that either the Company or Parent is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the reporting requirements of this Section 4.03 shall be satisfied through the filing with the Commission within the time periods specified in the Commission's rules and regulations that are then applicable to the Company or Parent, as applicable, all the reports on Form 10-K, Form 10-Q and Form 8-K that either the Company or Parent, as applicable, is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, in each case in a
manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the Commission.
(e)In the event that the reporting obligation of this Section 4.03 are satisfied through the reports of Parent in accordance with Section 4.03(d) and Parent or any other direct or indirect parent company of the Company holds any material assets other than cash, Cash Equivalents and the Capital Stock of the Company or any other direct or indirect parent of the Company (and performs the related incidental activities associated with such ownership), then the reports of Parent referenced in Section 4.03(d) shall be accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Parent and such other parent companies, on the one hand, and the information relating to the Company and its Subsidiaries on a stand-alone basis, on the other hand.
(f)[Intentionally Omitted]
(g)Notwithstanding anything herein to the contrary, the Company will not be deemed to have failed to comply with any of its obligations hereunder for purposes of Section 6.01(a)(iii) until 90 days after the date any report hereunder is due.
(h)Delivery of the above reports to the Trustee is for informational purposes only and the Trustee's receipt of such reports shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including compliance by the Company, any Guarantor or any Subsidiary with any of its covenants in this Indenture (as to which the Trustee is entitled to rely exclusively on an Officers' Certificate) or any other agreement or document. The Trustee shall have no obligation to determine if and when the Company has satisfied its reporting obligations under this Section 4.03 pursuant to Section 4.03(a)(iii), Section 4.03(c), Section 4.03(d) or Section 4.03(e). The Company shall (i) provide the Trustee with prompt written notification at such time that the Company commences or ceases to satisfy its reporting obligation under Section 4.03 through the reports of the Company or Parent, as applicable, in accordance with Section 4.03(d) or (ii) provide the Trustee and the Holders the information set forth in Section 4.03(a)
Section 4.04 Compliance Certificate.
(a)The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company ending December 31, an Officers' Certificate stating that in the course of the performance by the signers of their duties as Officers of the Company they would normally have knowledge of any Default and whether or not the signers know of any Default that occurred during such period. If they do, the certificate shall describe the Default, its status and what action the Company is taking or proposes to take with respect thereto. The Company also shall comply with Section 314(a)(4) of the TIA.
(b)So long as any of the Notes are outstanding, the Company will deliver to the Trustee, forthwith upon any Officer becoming aware of any Default or Event of Default, an Officers' Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.
Section 4.05 Corporate Existence.
Except as otherwise permitted by Article 5, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence in accordance with its organizational documents.
Section 4.06 [Intentionally Omitted].
Section 4.07 [Intentionally Omitted].
Section 4.08 Limitation on Sale and Lease-Back Transactions.
(a)The Company will not, and will not permit any of its Subsidiaries, directly or indirectly, to enter into any sale and lease-back transaction for the sale and leasing back of any Principal Property, whether now owned or hereafter acquired, unless:
(1)such transaction was entered into prior to or within 12 months after the Issue Date;
(2)such transaction was for the sale and leasing back to the Company or a Subsidiary of any Principal Property;
(3)such transaction involves a lease of a Principal Property executed by the time of or within 12 months after the latest of the acquisition, the completion of construction or improvement, or the commencement of commercial operation, of such Principal Property;
(4)such transaction involves a lease for not more than three years (or which may be terminated by the Company or the applicable Subsidiary within a period of not more than three years);
(5)the Company or the applicable Subsidiary would be entitled to incur Indebtedness secured by a mortgage on the property to be leased in an amount equal to Attributable Liens with respect to such sale and lease-back transaction without equally and ratably securing the Notes pursuant to Section 4.12(a); or
(6)the Company or the applicable Subsidiary applies an amount equal to the net proceeds from the sale of the Principal Property to the purchase of another Principal Property or to the retirement or other repayment or prepayment of long-term Indebtedness within 365 calendar days before or after the effective date of any such sale and lease-back transaction; provided that in lieu of applying such amount to such retirement, repayment or prepayment, the Company or any Subsidiary may deliver Notes to the trustee for cancellation, such Notes to be credited at the cost thereof to the Company or such Subsidiary.
(b)Notwithstanding Section 4.08(a), the Company and its Subsidiaries may enter into any sale and lease-back transaction which would otherwise be subject to the foregoing restrictions if after giving effect thereto and at the time of determination, Aggregate Debt does not exceed an amount equal to the greater of (a) $1,250,000,000, and (b) 1.75 times EBITDA of the Company for the Measurement Period immediately preceding the closing date of the sale and lease-back transaction.
Section 4.09 Limitation on Subsidiary Debt.
(a)The Company will not permit any of its Subsidiaries to create, assume, incur, Guarantee or otherwise become liable for or suffer to exist any Indebtedness (any
Indebtedness of a Subsidiary of the Company, “Subsidiary Debt”), without Guaranteeing the payment of the principal of, premium, if any, and interest on the Notes on an unsecured unsubordinated basis.
(b)Section 4.09(a) shall not apply to, and there shall be excluded from Indebtedness in any computation under such restriction, Subsidiary Debt constituting:
(1)Indebtedness of a Person existing at the time such Person is merged into or consolidated with or otherwise acquired by any Subsidiary of the Company or at the time of a sale, lease or other disposition of the properties and assets of such Person (or a division thereof) as an entirety or substantially as an entirety to any Subsidiary of the Company and is assumed by such Subsidiary; provided that any such Indebtedness was not incurred in contemplation thereof and is not Guaranteed by any other Subsidiary of the Company (other than any Guarantee existing at the time of such merger, consolidation or sale, lease or other disposition of properties and assets and that was not issued in contemplation thereof);
(2)Indebtedness of a Person existing at the time such Person becomes a Subsidiary of the Company; provided that any such Indebtedness was not incurred in contemplation thereof;
(3)Indebtedness owed to the Company or any Subsidiary of the Company;
(4)any Subsidiary Debt represented by any Guarantee of the 2019 Notes or the 2023 Notes or any Indebtedness or Guarantees under Permitted Bank Indebtedness;
(5)Indebtedness or Guarantees in respect of netting services, business credit card programs, overdraft protection and other treasury, depository and cash management services or incurred in connection with any automated clearing-house transfers of funds or other fund transfer or payment processing services;
(6)Indebtedness or Guarantees arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that any such Indebtedness or Guarantee is extinguished within five Business Days within its incurrence;
(7)Indebtedness or Guarantees in respect of any Qualified Securitization Financing;
(8)reimbursement obligations incurred in the ordinary course of business;
(9)client advances and deposits received in the ordinary course of business;
(10)Indebtedness or Guarantees incurred by Foreign Subsidiaries in an amount not to exceed $150,000,000 at any time outstanding;
(11)Indebtedness or Guarantees incurred (a) in respect of workers' compensation claims, payment obligations in connection with health or other types of social security benefits, unemployment or other insurance obligations, reclamation and statutory obligations, (b) in connection with the financing of insurance premiums or self-insurance obligations or take-or-pay obligations contained in supply agreements, and (c) in respect of guarantees, warranty or contractual service obligations, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, letters of credit and banker's acceptances for operating purposes or to secure any Indebtedness or other obligations referred to in clauses (1) through (9) or this clause (11), payment (other than for payment of Indebtedness) and completion guarantees, in each case provided or incurred (including Guarantees thereof) in the ordinary course of business; or
(12)Indebtedness outstanding on the Issue Date not referred to in clause (4) above and any extension, renewal, replacement, refinancing or refunding of any Indebtedness existing on the Issue Date or referred to in clauses (1), (2) and (4); provided that any Indebtedness incurred to so extend, renew, replace, refinance or refund shall be incurred within 360 days of the maturity, retirement or other repayment or prepayment of the Indebtedness referred to in this clause or clauses (1), (2) and (4) above and the principal amount of the Indebtedness incurred to so extend, renew, replace, refinance or refund shall not exceed the principal amount of Indebtedness being extended, renewed, replaced, refinanced or refunded plus any premium or fee (including tender premiums) or other reasonable amounts payable, plus all accrued interest on such Indebtedness and the amount of fees, expenses and other costs incurred, in connection with any such extension, renewal, replacement, refinancing or refunding.
(c)Notwithstanding Sections 4.09(a) and (b), the Company or any Subsidiary of the Company may, create, incur, issue, assume, Guarantee or otherwise become liable for or suffer to exist Indebtedness that would otherwise be subject to the restrictions set forth in Sections 4.09(a) and (b), without Guaranteeing the Notes, if after giving effect thereto, Aggregate Debt does not exceed an amount equal to the greater of (a) $1,250,000,000, and (b) 1.75 times EBITDA of the Company for the Measurement Period immediately preceding the date of the creation or incurrence of the Subsidiary Debt. Any Subsidiary also may, without Guaranteeing the payment of the principal of, premium, if any, and interest on the Notes, extend, renew, replace, refinance or refund any Subsidiary Debt permitted pursuant to the preceding sentence provided that any Subsidiary Debt incurred to so extend, renew, replace, refinance or refund shall be incurred within 360 days of the maturity, retirement or other repayment or prepayment of the Subsidiary Debt being extended, renewed, replaced, refinanced or refunded and the principal amount of the Subsidiary Debt incurred to so extend, renew, replace, refinance or refund shall not exceed the principal amount of Subsidiary Debt being extended, renewed, replaced, refinanced or refunded plus any premium or fee (including tender premiums) or other reasonable amounts payable, plus all accrued interest on such Subsidiary Debt and the amount of fees, expenses and other costs incurred, in connection with any such extension, renewal, replacement, refinancing or refunding.
(d)Notwithstanding anything to the contrary, in the event that any Wholly Owned Subsidiary of the Company guarantees the obligations of the Company under the Credit Agreement, such Wholly Owned Subsidiary shall, subject to the receipt of any necessary regulatory approvals, also provide a Note Guarantee by executing and delivering to the Trustee a
supplemental indenture and Notation of Guarantee in accordance with the terms of this Indenture.
Section 4.10 [Intentionally Omitted].
Section 4.11 [Intentionally Omitted].
Section 4.12 Limitation on Liens.
(a)The Company shall not, and shall not permit any of its Subsidiaries, directly or indirectly, to enter into, create, incur, assume or suffer to exist any Lien on any Principal Property, whether now owned or hereafter acquired, in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except:
(1)Liens existing as of the Issue Date;
(2)Liens granted after the Issue Date created in favor of the Holders of the Notes;
(3)Liens created in substitution of, or as replacements for, any Liens described in clauses (1) and (2) above; provided that based on a good faith determination of Senior Management, the Principal Property encumbered under any such substitute or replacement Lien is substantially similar in nature to the Principal Property encumbered by the otherwise permitted Lien which is being replaced; and
(4)Permitted Liens.
(b)Notwithstanding Section 4.12(a), the Company or any Subsidiary of the Company may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in Section 4.12(a) if after giving effect thereto, Aggregate Debt does not exceed an amount equal to the greater of (a) $1,250,000,000, and (b) 1.75 times EBITDA of the Company for the Measurement Period immediately preceding the date of the creation or incurrence of the Lien. The Company or any Subsidiary of the Company also may, without equally and ratably securing the Notes, create or incur Liens that extend, renew, substitute or replace (including successive extensions, renewals, substitutions or replacements), in whole or in part, any Lien permitted pursuant to the preceding sentence.
Section 4.13 Business Activities.
The Company shall not, and shall not permit any Subsidiary to, engage in any business other than Permitted Businesses, except to such extent as would not be material to the Company and its Subsidiaries taken as a whole.
Section 4.14 Payment of Taxes and Other Claims.
The Company shall, and shall cause each of its Subsidiaries to, pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (a) 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 (b) all lawful claims for labor, materials and supplies except, in each case, any such tax, assessment, charge or claim as is
being contested in good faith by appropriate actions or where the failure to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim is not materially adverse to the Holders.
Section 4.15 Offer to Repurchase upon Change of Control.
(a)If a Change of Control occurs, unless the Company at such time has given notice of redemption under Section 3.07(d), 3.07(e) or Section 3.08(b) with respect to all outstanding Notes, each Holder will have the right to require the Company to repurchase all or any part (in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess thereof) of that Holder's Notes pursuant to a change of control offer (the “Change of Control Offer”) on the terms set forth in this Indenture. In the Change of Control Offer, the Company will offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest on the Notes repurchased, to, but excluding, the Change of Control Payment Date (the “Change of Control Payment”). Within 30 days following any Change of Control, unless the Company at such time has given notice of redemption under Section 3.07(d), Section 3.07(e) or Section 3.08(b) with respect to all outstanding Notes, the Company will give notice to the Trustee and each Holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the date specified in the notice (the “Change of Control Payment Date”), which date will be no earlier than 30 days and no later than 60 days from the date such notice is given, pursuant to the procedures required by this Indenture and described in such notice. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.15 by virtue of such conflict.
(b)On or prior to 11:00 a.m., New York City time, on the Business Day immediately preceding the Change of Control Payment Date, the Company shall, to the extent lawful, deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered.
(c)On the Change of Control Payment Date, the Company shall, to the extent lawful:
(i)accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer; and
(ii)deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officers' Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company.
(d)The Paying Agent shall promptly deliver to each Holder properly tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each new Note will be in a minimum principal amount equal to $2,000 and integral multiples of $1,000 in excess thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(e)The Company shall not be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer or (ii) a valid notice of redemption for all of the Notes has been given, or will be given contemporaneously with the Change of Control, pursuant to Section 3.07(d) or (e) or under Section 3.08(b) unless and until such notice has been validly revoked (in the case of a redemption pursuant to Section 3.07(d)) or there is a default in the payment of the applicable redemption price. A Change of Control Offer may be made in advance of a Change of Control or conditional upon the occurrence of a Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made.
(f)In the event that Holders of not less than 90% in aggregate principal amount of the then outstanding Notes accept a Change of Control Offer and the Company (or any third party making such Change of Control Offer in lieu of the Company as described above) purchases all of the Notes held by such Holders, the Company shall have the right, upon not less than 30 nor more than 60 days' prior notice, given not more than 30 days following the Change of Control Payment Date relating to the Change of Control Offer described above, to redeem all of the Notes that remain outstanding following such Change of Control Payment Date at a redemption price equal to the Change of Control Payment, plus to the extent not included in the Change of Control Payment, accrued and unpaid interest on the Notes that remain outstanding, to, but excluding, the date of purchase.
Section 4.16 Payments for Consent.
The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid and is paid to all Holders that so consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement.
Section 4.17 Additional Guarantees.
On or after the Issue Date, the Company shall cause each Subsidiary that is required to Guarantee the payment of principal of, premium, if any, and interest on the Notes pursuant to Section 4.09 to become a Guarantor, within 10 Business Days of the creation, assumption, incurrence or Guarantee of the applicable Subsidiary Debt, and the Company shall cause each such Subsidiary to execute and deliver to the Trustee within such 10 Business Day period (i) a supplemental indenture in substantially the form attached hereto as Exhibit E and (ii) a Notation of Guarantee in substantially the form attached hereto as Exhibit D, pursuant to which such Subsidiary will unconditionally Guarantee, on a joint and several basis, the full and prompt payment of the principal of, premium, if any and interest on the Notes and all other obligations under this Indenture on the same terms and conditions as those set forth in this Indenture.
Each Note Guarantee will be limited to an amount not to exceed the maximum amount that can be Guaranteed by that Subsidiary without rendering the Note Guarantee, as it relates to such Subsidiary, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
Each Note Guarantee shall be automatically released in accordance with the provisions of this Indenture described under Article 11.
Section 4.18 [Intentionally Omitted].
Section 4.19 Suspension of Guarantees Upon Change in Ratings.
(a)If on any date following the Issue Date (1) the Notes are rated Investment Grade by either of the Rating Agencies; and (2) no Default or Event of Default shall have occurred and be continuing, then, beginning on such date (the “Suspension Date”) and subject to the provisions of Section 4.19(b), the Note Guarantees shall be deemed released and the Company's obligation under Section 4.17 shall be suspended (collectively, the “Suspended Provisions”).
(b)During any Suspension Period, any Subsidiary Debt incurred prior to or outstanding as of the Suspension Date shall be deemed to have been incurred in compliance with Section 4.09.
(c)In the event that the Notes are no longer rated Investment Grade by both Rating Agencies or an Event of Default shall have occurred and be continuing, the Suspended Provisions will be reinstituted as of and from the date on which the Notes are no longer rated Investment Grade by both Rating Agencies or an Event of Default has occurred and is continuing (any such date, a “Reversion Date”). The period of time between the Suspension Date and the Reversion Date is referred to as the “Suspension Period.” Notwithstanding that the Suspended Provisions may be reinstated, no Default or Event of Default will be deemed to have occurred as a result of a failure to comply with the Suspended Provisions during the Suspension Period.
(d)The Company and its Subsidiaries may honor any contractual commitments to take actions following a Reversion Date without causing a Default or Event of Default; provided that such contractual commitments were entered into during the Suspension Period and not in contemplation of a reversion of the Suspended Provisions.
(e)The Company shall provide an Officers' Certificate to the Trustee indicating the commencement of any Suspension Period or the Reversion Date. The Trustee will have no obligation to (i) independently determine or verify if such events have occurred, (ii) make any determination regarding the impact of actions taken during the Suspension Period on the Company and its Subsidiaries' future compliance with their covenants or (iii) notify the holders of the commencement of the Suspension Period or the Reversion Date.
Section 4.20 Compliance with Laws.
The Company shall comply, and shall cause each of its Subsidiaries to comply, with all applicable statutes, rules, regulations, orders and restrictions of the United States, all states and municipalities thereof, and of any governmental department, commission, board, regulatory authority, bureau, agency and instrumentality of the foregoing, in respect of the conduct of their respective businesses and the ownership of their respective properties, except, in any such case, to the extent the failure to so comply would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of the Company and its Subsidiaries taken as a whole.
Section 4.21 Waiver of Stay, Extension or Usury Laws.
The Company and each Guarantor covenants (to the extent permitted by applicable law) 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 Company 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 permitted by applicable law) the Company and each Guarantor hereby expressly waives all benefit or advantage of any such law, and covenants (to the extent permitted by applicable law) that it shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted.
Section 4.22 Special Mandatory Redemption Account.
(a)If the Schrader Acquisition is not consummated substantially concurrently with the issuance of the Initial Notes on the Issue Date, the Company shall deposit on the Issue Date into a segregated account maintained by the Company an amount of cash sufficient to pay the Special Mandatory Redemption Price on the Special Mandatory Redemption Date, assuming that the Special Mandatory Redemption Date occurs on November 21, 2014. The Company shall not use the funds in such segregated account for any purpose other than the consummation of the Schrader Acquisition or the Special Mandatory Redemption at any time on or prior to the Special Mandatory Redemption Date.
(b)Neither the Trustee nor any Agent shall have any liability or responsibility with respect to, or obligation or duty to monitor, determine or inquire as to the Company's compliance with this Section 4.22.
Article 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
(a)The Company may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving entity); or (2) sell, assign, transfer, convey, lease or otherwise dispose of all or substantially all of the properties or assets of the Company and its Subsidiaries, taken as a whole, in one or more related transactions, to another Person, unless:
(i)either: (A) the Company is the surviving entity; or (B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made is a corporation or limited liability company organized or existing under the laws of any member state of the European Union, the United States, any state of the United States or the District of Columbia (the Company or such Person, including the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, as the case may be, being herein called the “Successor Company”), provided, that at any time the Successor Company
is a limited liability company, there shall be a co-issuer of the Notes that is a corporation that satisfies the requirements of this Section 5.01(a);
(ii)the Successor Company (if other than the Company) assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture;
(iii)immediately after such transaction, no Default or Event of Default exists; and
(iv)the Company delivers an Officers' Certificate and Opinion of Counsel stating that such transaction complies with this Indenture and, if applicable, all conditions precedent in this Indenture to the execution of the supplemental indenture have been satisfied.
The foregoing provision shall also apply to any Guarantor.
(b)For purposes of this Article 5, the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of the Company.
(c)For the avoidance of doubt, it is agreed that, for all purposes under this Indenture, a sale, transfer or disposition of the properties or assets of the Company and its Subsidiaries that, in the aggregate accounted for no more than two-thirds of the Company's aggregate EBITDA during the four most recent consecutive fiscal quarters prior to the date of such sale, transfer or disposition for which financial statements are available (as specified in an Officers' Certificate delivered to the Trustee), shall be deemed not to be a sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of the Company.
(d)Upon the execution and delivery of the supplemental indenture referred to in Section 5.01(a) (ii), the predecessor company shall be released from its obligations under this Indenture and the Successor Company shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, but, in the case of a lease of all or substantially all its assets, the predecessor shall not be so released.
(e)Notwithstanding the foregoing, clause (iii) of Section 5.01(a) shall not apply to (A) a sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Subsidiaries, (B) any Subsidiary consolidating with, merging into or selling, assigning, transferring, conveying, leasing or otherwise disposing of all or part of its properties and assets to the Company or to another Subsidiary (provided that, in the event that such Subsidiary is a Guarantor, it may consolidate with, merge into or sell, assign, transfer, convey, lease or otherwise dispose of all or part of its properties and assets solely to the Company or another Guarantor) or (C) the Company merging with an Affiliate solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction.
Article 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
(a)Each of the following is an “Event of Default”:
(i)the Company defaults in payment when due and payable, upon redemption, acceleration or otherwise, of principal of, or premium, if any, on the Notes;
(ii)the Company defaults in the payment when due of interest on or with respect to the Notes and such default continues for a period of 30 days;
(iii)the Company defaults in the performance of, or breaches any covenant, warranty or other agreement contained in, this Indenture (other than a default in the performance or breach of a covenant, warranty or agreement which is specifically dealt with in clauses (i) or (ii) above) and such default or breach continues for a period of 60 days after the notice specified below;
(iv)a default under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any Indebtedness for money borrowed by the Company or any Subsidiary or the payment of which is Guaranteed by the Company or any Subsidiary (other than Indebtedness owed to the Company or a Subsidiary), whether such Indebtedness or Guarantee now exists or is created after the Issue Date, if (A) such default either (1) results from the failure to pay any such Indebtedness at its stated final maturity (after giving effect to any applicable grace periods) or (2) relates to an obligation other than the obligation to pay principal of any such Indebtedness at its stated final maturity and results in the holder or holders of such Indebtedness causing such Indebtedness to become due prior to its stated maturity and (B) the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness in default for failure to pay principal at stated final maturity (after giving effect to any applicable grace periods), or the maturity of which has been so accelerated, aggregate in excess of $50.0 million (or its foreign currency equivalent) at any one time outstanding;
(v)the Company or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(A)commences a voluntary case;
(B)consents to the entry of an order for relief against it in an involuntary case;
(C)consents to the appointment of a custodian of it or for all or substantially all of its property;
(D)makes a general assignment for the benefit of its creditors;
(E)takes any comparable action under any foreign laws relating to insolvency;
(F)generally is not able to pay its debts as they become due; or
(G)takes any corporate action to authorize or effect any of the foregoing;
(vi)a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A)is for relief against the Company or any Significant Subsidiary in an involuntary case;
(B)appoints a custodian of the Company or any Significant Subsidiary or for all or substantially all of the property or assets of the Company or any Significant Subsidiary; or
(C)orders the liquidation of the Company or any Significant Subsidiary,
and the order or decree remains unstayed and in effect for 60 days;
(vii)the failure by the Company or any Significant Subsidiary to pay final judgments aggregating in excess of $50.0 million, which final judgments remain unpaid, undischarged and unstayed for a period of more than 60 days after the applicable judgment becomes final, and, with respect to any such judgments covered by insurance, an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly stayed; or
(viii)the Note Guarantee of a Significant Subsidiary or any group of Subsidiaries that, taken together as of the date of the most recent audited financial statements of the Company, would constitute a Significant Subsidiary ceases to be in full force and effect (except as contemplated by the terms hereof) or any Guarantor denies or disaffirms its obligations under this Indenture or any Note Guarantee, other than by reason of the release of such Note Guarantee in accordance with the terms of this Indenture.
(b)If a Default for a failure to report or failure to deliver a required certificate in connection with another default (the “Initial Default”) occurs, then at the time such Initial Default is cured, such Default for a failure to report or failure to deliver a required certificate in connection with another default that resulted solely because of that Initial Default will also be cured without any further action.
(c)Any Default or Event of Default for the failure to comply with the time periods prescribed in Section 4.03 or otherwise to deliver any notice or certificate pursuant to any other provision of this Indenture shall be deemed to be cured upon the delivery of any such
report required by Section 4.03 or such notice or certificate, as applicable, even though such delivery is not within the prescribed period specified in this Indenture.
Section 6.02 Acceleration.
(a)If an Event of Default specified in clause (v) or (vi) of Section 6.01(a) occurs and is continuing, then all unpaid principal of, and premium, if any, and accrued and unpaid interest on all of the outstanding Notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
(b)If any Event of Default (other than an Event of Default specified in clauses (v) or (vi) of Section 6.01(a)) shall occur and be continuing, the Trustee or the Holders of at least 25% in principal amount of outstanding Notes under this Indenture may declare the principal of and accrued interest on such Notes to be due and payable by notice in writing to the Company and the Trustee (if given by the Holders) specifying the respective Event of Default and that it is a “notice of acceleration,” and the same shall become immediately due and payable.
(c)At any time after an acceleration of the unpaid principal, premium (if any) and accrued and unpaid interest has occurred with respect to the Notes as described in Section 6.02(a) or (b), the Holders of a majority in aggregate principal amount of the then outstanding Notes may rescind and cancel such acceleration and its consequences by written notice to the Company and the Trustee:
(i)if the rescission would not conflict with any judgment or decree;
(ii)if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of the acceleration;
(iii)to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such acceleration, has been paid;
(iv)if the Company has paid the Trustee its reasonable compensation and reimbursed the Trustee for its expenses (including the fees and costs of its attorneys), disbursements and advances; and
(v)in the event of the cure or waiver of an Event of Default under this Indenture of the type described in clause (v) and (vi) of Section 6.01(a), the Trustee shall have received an Officers' Certificate that such Event of Default has been cured or waived.
No such rescission shall affect any subsequent Default or impair any right consequent thereto.
Section 6.03 Other Remedies.
(a)If a 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 interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
(b)The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon a Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Default. No remedy is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by law.
(c)In the event of any Event of Default specified in clause (iv) of Section 6.01(a), such Event of Default and all consequences thereof (excluding, however, any resulting payment default, other than as a result of the acceleration of the Notes) shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 20 days after such Event of Default arose: (x) the Indebtedness or Guarantee that is the basis for such Event of Default has been discharged or (y) the holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default or (z) the default that is the basis for such Event of Default is no longer continuing, it being understood that in no event shall an acceleration of the principal amount of the Notes, as described above, be automatically annulled, waived or rescinded upon the happening of any such events.
(d)Holders may not enforce this Indenture or the Notes, except as provided in this Indenture. The Trustee is under no obligation to exercise any of its rights or powers under this Indenture at the request, order or direction of any of the Holders, unless such Holders have offered to the Trustee reasonable indemnity.
Section 6.04 Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of Notes at the time then outstanding may on behalf of the Holders of all the Notes waive any Default with respect to such Notes and its consequences by providing written notice thereof to the Company and the Trustee, except a Default in the payment of interest on or the principal of such Notes. In the case of any such waiver, the Company, the Trustee and the Holders shall be restored to their former positions and rights under this Indenture, respectively; provided, that no such waiver shall extend to any subsequent or other Default or impair any right consequent thereto.
Section 6.05 Control by Majority.
Subject to the other provisions of this Indenture and applicable law, the Holders of not less than a majority in aggregate principal amount of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it. The Trustee may refuse to follow any direction that conflicts with any law or this Indenture, that the Trustee determines may be unduly prejudicial to the rights of another Holder, or that may involve the Trustee in personal liability; provided, that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. In the event the Trustee takes any action or follows any direction pursuant to this Indenture, the Trustee shall be entitled to indemnification satisfactory to the Trustee against any loss or expense caused by taking such action or following such direction.
Section 6.06 Limitation on Suits.
A Holder may not pursue any remedy with respect to this Indenture or the Notes unless:
(i)the Holder gives to the Trustee written notice of a continuing Event of Default;
(ii)the Holder or Holders of at least 25% in principal amount of the outstanding Notes make a written request to the Trustee to pursue the remedy;
(iii)such Holder or Holders offer and provide to the Trustee indemnity reasonably satisfactory to the Trustee against any loss, liability or expense;
(iv)the Trustee does not comply with the request within 45 days after receipt of the request and the offer and the provision of indemnity; and
(v)during such 45-day period the Holder or Holders of a majority in aggregate principal amount of the outstanding Notes do not give the Trustee a direction in accordance with Section 6.04 which, in the opinion of the Trustee, is inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over such other Holder.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal of and interest 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 the Holder.
Section 6.08 Collection Suit by Trustee.
If a Default in payment of principal or interest specified in clauses (i) or (ii) of Section 6.01(a) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company or any other obligor on the Notes for the whole amount of principal and accrued interest and fees remaining unpaid, 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.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relating to the Company, its creditors or 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 each of the Trustee and the Agents any amount due to it for the compensation, expenses, disbursements and advances of the Trustee, the Agents and their respective agents and counsel, and any other amounts due the Trustee and the Agents under Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. The Trustee shall be entitled to participate as a member of any official committee of creditors in the matters as it deems necessary or advisable.
Section 6.10 Priorities.
Subject to the provisions of Article 10, if the Trustee collects any money or property pursuant to this Article 6, it shall pay out the money or property in the following order:
First: to the Trustee and the Agents for amounts due under Section 7.07;
Second: to Holders for interest accrued on the Notes, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for interest;
Third: to Holders for principal amounts due and unpaid on the Notes, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal; and
Fourth: to the Company or, if applicable, the Guarantors, as their respective interests may appear.
The Trustee, upon prior notice to the Company, may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10% in principal amount of the outstanding Notes.
Article 7
TRUSTEE
Section 7.01 Duties of Trustee.
(a)The Trustee, prior to the occurrence of an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge and after the curing of all such Events of Defaults which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. If an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge has occurred and is continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs.
(b)Except during the continuance of an Event of Default:
(i)the duties of the Trustee will be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii)in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, with respect to certificates or opinions specifically required by any provision hereof to be furnished to it, the Trustee will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture; provided, however, that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished to it hereunder.
(c)The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i)this paragraph (c) does not limit the effect of paragraph (b) of this Section 7.01;
(ii)the Trustee will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(iii)the Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.
(d)No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability for the performance of any of its duties hereunder or the exercise of any of its rights or powers. The Trustee will be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, unless such Holder has offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.
(e)The Trustee will not be liable for interest on, and will not be obligated to invest, any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Section 7.02 Rights of Trustee. The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(a)Before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officers' Certificate or Opinion of Counsel. The
Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(b)The Trustee may execute any of the trusts or powers hereunder and perform any duties hereunder either directly or through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent appointed with due care.
(c)The Trustee will not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(d)Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company will be sufficient if signed by an Officer of the Company.
(e)The Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity or security satisfactory to it against the losses, liabilities and expenses that might be incurred by it in compliance with such request or direction.
(f)In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(g)The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.
(h)The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Agents, and the Trustee, in each of its capacities hereunder, each Agent and each agent, custodian, and other Person employed to act hereunder.
(i)The Trustee may request that the Company and each Guarantor deliver an Officers' Certificate setting forth the names of individuals and/or titles of Officers authorized at such time to take specified actions pursuant to this Indenture.
(j)The right of the Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act.
(k)The Trustee shall have no obligation to (i) independently determine or verify the rating of any Notes or if a commencement of any Suspension Period or the Reversion Date has occurred, (ii) make any determination regarding the impact of actions taken during the Suspension Period on the Company and its Subsidiaries' future compliance with their covenants or (iii) notify the Holders of the commencement of the Suspension Period or the Reversion Date.
(l)Notwithstanding any provision herein to the contrary, in no event shall the Trustee 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, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like which restrict or prohibit the providing of the services contemplated by this Indenture, inability to obtain material, equipment, or communications or computer facilities, or the failure of equipment or interruption of communications or computer facilities, and other causes beyond its control whether or not of the same class or kind as specifically named above.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the Commission for permission to continue as trustee (if this Indenture has been qualified under the TIA) or resign. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee's Disclaimer.
The Trustee will not be responsible for and makes no representation as to the validity or adequacy of this Indenture, any related offering material or the Notes, it shall not be accountable for the Company's use of the proceeds from the Notes or any money paid to the Company or upon the Company's direction under any provision of this Indenture, it will not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it will not be responsible for any statement or recital herein, any statement in the Notes, the Offering Memorandum or any other document in connection with the sale of the Notes or pursuant to this Indenture or the legality or validity of the Notes or this Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is known to the Trustee in accordance with Section 7.02(h), the Trustee will provide to Holders a notice of the Default or Event of Default within 90 days after the Trustee has notice thereof. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest on, any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders.
Section 7.06 [Intentionally Omitted].
Section 7.07 Compensation and Indemnity.
(a)The Company will pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services hereunder as agreed between the Company and the Trustee. The Trustee's compensation will not be limited by any law on compensation of a trustee of an express trust. The Company will reimburse the Trustee promptly upon request for all reasonable and documented disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses will include the reasonable and documented compensation, disbursements and expenses of the Trustee's agents and counsel.
(b)The Company and each Guarantor, jointly and severally, will indemnify the Trustee and any director, officer, employee or agent of the Trustee and hold each of them harmless for, from and against any and all losses, liabilities, claims, damages or expenses incurred by it (i) arising out of or in connection with the acceptance or administration of its duties under this Indenture, including, without limitation, the reasonable and documented costs and expenses (including the costs and expenses of the Trustee's agents and counsel) of enforcing this Indenture against the Company and the Guarantors (including this Section 7.07) and defending itself against any claim (whether asserted by the Company, the Guarantors, any Holder or any other Person) or (ii) arising out of or in connection with the exercise or performance of any of its powers or duties hereunder and/or the exercise of its rights, except to the extent any such loss, liability or expense may be attributable to its own negligence, bad faith or willful misconduct. The Trustee will notify the Company promptly of any claim of which a Responsible Officer has received written notice for which it may seek indemnity. Failure by the Trustee to so notify the Company will not relieve the Company or any of the Guarantors of their obligations hereunder. The Company or such Guarantor, as the case may be, will defend the claim and the Trustee will cooperate in the defense. The Trustee may have separate counsel and the Company and the Guarantors, as applicable, will pay the reasonable and documented fees and expenses of such counsel provided, however that the Company and any Guarantor shall not be required to pay such fees and expenses if it assumes such indemnified party's defense and, in such indemnified party's reasonable judgment, there is no conflict of interest or potential conflict of interest between the Company and the Guarantors, as applicable, and such party in connection with such defense. Neither the Company nor any Guarantor need pay for any settlement made without its consent, which consent will not be unreasonably withheld.
(c)The obligations of the Company and the Guarantors under this Section 7.07 will survive payment of the Notes, resignation or removal of the Trustee or any Agent, the satisfaction and discharge of this Indenture or other termination of this Indenture.
(d)To secure the Company's and the Guarantors' payment obligations in this Section 7.07, the Trustee will have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien will survive the satisfaction and discharge of this Indenture.
(e)When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(a)(v) or (vi) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
Section 7.08 Replacement of Trustee.
(a)A resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee's acceptance of appointment as provided in this Section 7.08.
(b)The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Company. The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in writing. The Company may remove the Trustee if:
(i)the Trustee fails to comply with Section 7.10 hereof;
(ii)the Trustee is adjudged bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(iii)a custodian, receiver or public officer takes charge of the Trustee or its property; or
(iv)the Trustee becomes incapable of acting.
(c)If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company will promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
(d)If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company, or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(e)If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10 hereof, such Holder may petition at the expense of the Company any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(f)A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee will mail a notice of its succession to Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company's and the Guarantors' obligations under Section 7.07 hereof will continue for the benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business (including any corporate trust business contemplated by this Indenture) to, another corporation, the successor corporation without any further act will be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation 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 trust powers, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50.0 million as set forth in its most recent published annual report of condition.
Section 7.11 Preferential Collection of Claims Against the Company.
The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated therein.
Article 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may at any time, at the option of its Board of Directors evidenced by a resolution set forth in an Officers' Certificate, elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes and Note Guarantees upon compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Company and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been released from their obligations with respect to all outstanding Notes (including the Note Guarantees) on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Guarantees), which will thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in clauses (i) and (ii) below, and to have satisfied all their other obligations under such Notes, the Note Guarantees and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute instruments acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder:
(i)the rights of Holders of outstanding Notes issued hereunder to receive payments in respect of the principal of, or interest or premium, if any, on such Notes when such payments are due from the trust referred to below;
(ii)the Company's obligations with respect to the Notes issued hereunder concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust;
(iii)the rights, powers, trusts, duties and immunities of the Trustee hereunder and the obligations of the Company and the Guarantors in connection therewith; and
(iv)this Article 8.
Subject to compliance with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Company and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of their obligations under the covenants contained in Sections 4.03, 4.05, 4.08, 4.09, 4.12, 4.13, 4.15, 4.16, 4.17 and 5.01(a)(iii) hereof with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes will 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 will continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes will not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and the Note Guarantees, the Company and the Guarantors may omit to comply with and will have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply will not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes and Note Guarantees, will be unaffected thereby. In addition, upon the Company's exercise under Section 8.01 hereof of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, and clauses (iii), (iv), (v) (with respect to a Significant Subsidiary), (vi) (with respect to a Significant Subsidiary), (vii) and (viii) of Section 6.01(a) will not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
(a)In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 hereof:
(i)the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders cash in U.S. dollars, non-callable U.S. Government Securities, or a combination of cash in U.S. dollars and non-callable U.S. Government Securities, in amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants delivered to the Trustee, to pay the principal of, and interest and premium, if any, on the outstanding Notes issued hereunder on the Stated Maturity or on the applicable redemption date, as the case may be, and the Company must specify whether such Notes are being defeased to maturity or to a particular redemption date;
(ii)in the case of an election under Section 8.02 hereof, the Company has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel will confirm that, the Holders of the outstanding Notes issued hereunder will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Legal Defeasance had not occurred;
(iii)in the case of an election under Section 8.03 hereof, the Company has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes issued hereunder will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(iv)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, or arising in connection with, the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowing);
(v)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 Company or any Guarantor is a party or by which the Company or any Guarantor is bound;
(vi)the Company must deliver to the Trustee an Officers' Certificate stating that the deposit referred to in clause (i) was not made by the Company with the intent of preferring the Holders over the other creditors of the Company or any Guarantor or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or any Guarantor or others; and
(vii)the Company 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 of the Notes have been complied with.
(b)Notwithstanding the foregoing, the Opinion of Counsel required by clauses (a)(ii) and (a)(iii) above with respect to a Legal Defeasance or a Covenant Defeasance, as applicable, need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable on the maturity date 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 Company.
(c)Upon satisfaction of the conditions set forth herein and upon the request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
Section 8.05 Deposited Money and U.S. Government Securities to Be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money, non-callable U.S. Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable U.S. Government Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.
Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to the Company from time to time upon the request of the Company any money, non-callable U.S. Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a)(ii) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium, if any, or interest on, any Note and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company) will be discharged from such trust; and the Holder of such Note will thereafter be permitted to look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, will 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 Company causes to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable U.S. Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company's and the Guarantors' obligations under this Indenture and the Notes and the Note Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium, if any, or interest on, any Note following the reinstatement of its obligations, the Company will 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 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Without the consent of any Holder, the Company, the Guarantors and the Trustee may amend or supplement this Indenture, the Notes or the Note Guarantees:
(i)to cure any ambiguity, mistake, defect or inconsistency;
(ii)to provide for uncertificated Notes in addition to or in place of certificated Notes;
(iii)to provide for the assumption by a Successor Company or a successor company of a Guarantor, as applicable, of the Company's or such Guarantor's obligations under this Indenture;
(iv)to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights hereunder of any Holder;
(v)to secure the Notes;
(vi)to add a Note Guarantee;
(vii)to conform the text of this Indenture or the Notes to any provision of the “Description of Notes” included in the Offering Memorandum relating to the Notes;
(viii)to provide for the issuance of Additional Notes in accordance with the provisions set forth in this Indenture; or
(ix)to release a Guarantor from its Note Guarantee; provided, that such sale, designation or release is in accordance with the applicable provisions of this Indenture,
provided, that the Company has delivered to the Trustee an Opinion of Counsel and an Officers' Certificate, each stating that such amendment or supplement complies with the provisions of this Section 9.01.
Section 9.02 With Consent of Holders of Notes.
(a)Subject to Section 6.07, the Company, the Guarantors and the Trustee, together, with the written consent of the Holder or Holders of a majority in aggregate principal amount of the outstanding Notes (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), may amend or supplement this Indenture or the Notes without notice to any other Holders. Subject to Section 6.07, the Holder or Holders of a majority in aggregate principal amount of then outstanding Notes may waive compliance with any provision of this Indenture or the Notes (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes) without notice to any other Holders (except a default in respect of the payment of principal or interest on the Notes).
(b)Notwithstanding Section 9.02(a), without the consent of each Holder affected, an amendment, supplement or waiver, including a waiver pursuant to Section 6.04, may not:
(i)reduce the principal amount of Notes issued hereunder whose Holders must consent to an amendment, supplement or waiver;
(ii)reduce the principal of or change the fixed maturity of any Note issued hereunder or alter the provisions with respect to the redemption of the Notes issued hereunder (other than provisions relating to the covenants described above under Section 4.15, except as set forth in clause (x) below);
(iii)reduce the rate of or change the time for payment of interest on any Note issued hereunder;
(iv)waive a Default or Event of Default in the payment of principal of, or interest or premium, if any, on the outstanding Notes issued hereunder (except a rescission of acceleration of the outstanding Notes issued hereunder by the Holders of a majority in aggregate principal amount of the outstanding Notes issued hereunder with respect to a nonpayment default and a waiver of the payment default that resulted from such acceleration);
(v)make any Note payable in money other than that stated in the Notes;
(vi)make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders hereunder to receive payments of principal of, or interest or premium, if any, on the Notes or impair the right of any Holder to institute suit for the enforcement of any payment on or with respect to the Notes;
(vii)waive a redemption payment with respect to any Note issued hereunder (other than a payment required by Section 4.15, except as set forth in clause (x) below);
(viii)make any change in the ranking or priority of any Note issued hereunder that would adversely affect the Holders;
(ix)modify the Note Guarantees in any manner adverse to the Holders;
(x)amend, change or modify in any material respect the obligation of the Company to make and consummate a Change of Control Offer in respect of a Change of Control that has occurred; or
(xi)make any change in the preceding amendment and waiver provisions.
(c)It shall not be necessary for the consent of the Holders under this Section to approve the particular form of any proposed amendment, supplement or waiver but it shall be sufficient if such consent approves the substance thereof.
(d)After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company shall give to the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.
Section 9.03 [Intentionally Omitted].
Section 9.04 Revocation and Effect of Consents.
(a)Until an amendment, waiver or supplement becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder 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 or subsequent Holder may revoke the consent as to his Note or portion of his Note by notice to the Trustee or the Company received before the date on which the Trustee receives an Officers' Certificate certifying that the Holders of the requisite principal amount of Notes have consented (and not theretofore revoked such consent) to the amendment, supplement or waiver.
(b)The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver which record date shall be at least 30 days prior to the first solicitation of such consent. If a record date is fixed, then notwithstanding the last sentence of the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date. The Company shall inform the Trustee in writing of the fixed record date if applicable.
(c)After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless it makes a change described in any of clauses (i) through (xi) of Section 9.02(b), in which case, the amendment, supplement or waiver shall bind only each Holder of a Note who has consented to it and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder's Note; provided, that any such waiver shall not impair or affect the right of any Holder to receive payment of principal of and interest 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 without the consent of such Holder.
Section 9.05 Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note, the Company may require the Holder of the Note to deliver it to the Trustee. The Company shall provide the Trustee with an appropriate notation on the Note about the changed terms and cause the Trustee to return it to the Holder at the Company's expense. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms. Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver authorized pursuant to this Article 9; provided, that the Trustee may, but shall not be obligated to, execute any such amendment, supplement or waiver which affects the Trustee's own rights, duties or immunities under this Indenture. The Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel and an Officers' Certificate each stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article 9 is authorized or permitted by this Indenture and constitutes the legal, valid and binding obligations of the Company enforceable in accordance with its terms. Such Opinion of Counsel and Officers' Certificate shall be at the expense of the Company.
Article 10
GUARANTEES
Section 10.01 Guarantee.
(a)Subject to this Article 10, each of the Guarantors hereby, jointly and severally, and fully and unconditionally, Guarantees (and in the case of a Guarantor incorporated under laws of Malaysia, such Guarantor shall also Guarantee as principal debtor and not as surety only) to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of, this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (i) the principal of, premium, if any, and accrued and unpaid interest and defaulted interest, if any, on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium, if any, and interest and defaulted interest, if any, on the Notes (pursuant to Section 2.12), if lawful (subject in all cases to any applicable grace period provided herein), and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full, 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 any of such other obligations, the same will be promptly paid in full when due in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Failing payment when due of any amount so Guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a Guarantee of payment and not a Guarantee of collection.
(b)Each Guarantor hereby agrees that, to the maximum extent permitted under applicable law, its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes or the Trustee with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Subject to Section 6.06, each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. The Guarantee contemplated by the Note Guarantee issued by the Guarantor incorporated under laws of Malaysia is, unless otherwise released pursuant to and in accordance with Section 10.05 below, a continuing guarantee and will extend to the ultimate balance of sums
payable by the Company under the Notes and this Indenture, regardless of any intermediate payment or discharge in whole or in part.
(c)If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to any of the Company or the Guarantors, any amount paid by any of them to the Trustee or such Holder, the Note Guarantees, to the extent theretofore discharged, shall be reinstated with full force and effect.
(d)Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders or the Trustee in respect of any obligations Guaranteed hereby until payment in full of all obligations Guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Guaranteed hereby may be accelerated as provided in Article 6 for the purposes of its Note 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 declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of its Note Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders or the Trustee under any Note Guarantee.
(e)To the fullest extent permitted by law, each Guarantor organized under the laws of Mexico unconditionally and irrevocably waives, any right to which it may be entitled, to the extent applicable, under Articles 2813, 2814,2815,2816, 2817, 2818, 2819, 2820, 2821, 2822, 2823, 2824, 2826, 2827, 2830, 2835, 2836, 2837, 2838, 2839, 2840, 2842, 2844, 2846, 2847, 2848 and 2849 of the Federal Civil Code (Código Civil Federal) and the corresponding provisions of the Civil Codes of the States of Mexico and the Federal District.
Section 10.02 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
Notwithstanding anything to the contrary, nothing in this Indenture may cause the aggregate amount of Sensor-Nite NV's liability with respect to all Indebtedness guaranteed by Sensor-Nite NV at or prior to the Issue Date, including, without limitation, pursuant to this Indenture and its Note Guarantee, to exceed the greater of (i) 90% of Sensor-Nite NV's own funds (eigen vermogen/capitaux propres, as defined in Article 617 of the Belgian Companies
Code) as derived from its latest audited financial statements available at the time any demand for payment is made and (ii) $40 million.
Section 10.03 Execution and Delivery of Guarantee.
(a)To evidence its Note Guarantee set forth in Section 10.01, each Guarantor hereby agrees that a notation of such Note Guarantee (a “Notation of Guarantee”) substantially in the form attached hereto as Exhibit D shall be endorsed by an Officer of such Guarantor by manual or facsimile signature on each Note authenticated and delivered by the Trustee and that this Indenture shall be executed on behalf of such Guarantor by one of its Officers.
(b)Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 shall remain in full force and effect notwithstanding any failure to endorse on each Note a Notation of Guarantee.
(c)If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed, the Note Guarantee shall be valid nevertheless.
(d)The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.
(e)If required by Section 4.17, the Company shall cause such Subsidiaries to execute supplemental indentures to this Indenture and Notations of Guarantee in accordance with Section 4.17 and this Article 10, to the extent applicable.
Section 10.04 Guarantors May Consolidate, Etc., on Certain Terms.
Each Guarantor may consolidate with or merge into or sell its assets to the Company or another Guarantor without limitation, or with, into or to any other Persons upon the terms and conditions set forth in Article 5.
Section 10.05 Releases.
The Note Guarantee of a Guarantor will be automatically released in the event that:
(a)there is a sale, disposition or other transfer (including through merger or consolidation) of all of the Capital Stock (or any sale, disposition or other transfer of Capital Stock (including through merger or consolidation) following which the applicable Guarantor is no longer a Subsidiary), or all or substantially all the assets, of the applicable Guarantor;
(b)in the case of any Subsidiary which after the Issue Date is required to provide a Note Guarantee pursuant to Section 4.17, the release or discharge of the Guarantee by such Subsidiary of all Indebtedness of the Company or any Subsidiary or the repayment of all the Indebtedness or Disqualified Stock, in each case, which resulted in an obligation to provide a Note Guarantee;
(c)if the Company exercises its Legal Defeasance option or its Covenant Defeasance option as described under Article 8 or if its obligations under this Indenture are discharged in accordance with the terms of this Indenture as described under Article 11; or
(d)such Guarantor is also a guarantor or borrower under the Credit Agreement as in effect on the Issue Date and, at the time of release of its Note Guarantee, (x) has been released from its Guarantee of, and all pledges and security, if any, granted in connection with the Credit Agreement, (y) is not an obligor under any Indebtedness (other than Indebtedness permitted to be incurred pursuant to clause (3), (5), (6), (7), (8), (9), (10) and (11) of Section 4.09(b) and (z) does not Guarantee any Indebtedness in excess of $50.0 million (or its foreign currency equivalent) at such time outstanding of the Company or any of the other Guarantors.
Article 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge.
(a)This Indenture will be discharged and will cease to be of further effect as to all Notes issued hereunder, when:
(i)either:
(A)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 or segregated and held in trust by the Company and thereafter repaid to the Company, have been delivered to the Trustee for cancellation; or
(B)all Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the giving of a notice of redemption or otherwise or will become due and payable by reason of the giving of a notice of redemption or otherwise within one year and the Company has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereof, in amounts as will be sufficient, without consideration of any reinvestment of interest, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants delivered to the Trustee, to pay and discharge the entire Indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption;
(ii)in the case of subclause (i)(B) above, no Default or Event of Default has occurred and is continuing under this Indenture on the date of the deposit or will occur as a result of the deposit (other than a Default or Event of Default resulting from or arising in connection with borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowing) and the deposit will not result in a breach or violation of, or constitute a default under, any other material instrument to which the Company is a party or by which the Company is bound;
(iii)the Company has paid or caused to be paid all sums payable by it under this Indenture; and
(iv)the Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes issued hereunder at maturity or the redemption date, as the case may be.
(b)In addition, the Company 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.
(c)Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to subclause (B) of clause (i) of Section 11.01(a), the provisions of Sections 11.02 and 8.06 hereof will survive such satisfaction and discharge. In addition, nothing in this Section 11.01 will be deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the satisfaction and discharge of this Indenture.
Section 11.02 Application of Trust Money.
Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or U.S. Government Securities in accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company's and any Guarantor's obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof; provided, that if the Company has made any payment of principal of, premium, if any, or interest on, any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Securities held by the Trustee or Paying Agent.
Article 12
MISCELLANEOUS
Section 12.01 [Intentionally Omitted].
Section 12.02 Notices.
Any notice, demand, instruction, request, direction or communication by the Company, any Guarantor or the Trustee to the others is duly given if in English and in writing and delivered in Person or by first class mail (registered or certified, return receipt requested), facsimile transmission or other electronic transmission or overnight air courier guaranteeing next day delivery, to the others' address:
If to the Company and/or any Guarantor:
Sensata Technologies B.V.
c/o Sensata Technologies, Inc.
529 Pleasant Street
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Financial Officer
With a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, New York 10036
Facsimile No.: (212) 735-2000
Attention: Gregory Fernicola, Esq.
If to the Trustee:
The Bank of New York Mellon
Corporate Trust Division
101 Barclay Street, 7th Floor East
New York, NY 10286
Facsimile No.: (212) 815-5390
Attention: Corporate Trust Division
The Company, any Guarantor or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.
All notices and communications to the Trustee or any Agent shall be deemed to have been duly given upon actual receipt thereof by such party. All other notices and communications (other than those sent to Holders) will be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder of a Global Note will be delivered to the Depositary in accordance with its customary procedures. Any notice or communication to a Holder of a Definitive Note will be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Failure to mail a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders.
Except with respect to the Trustee and the Agents, if a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
In respect of this Indenture, the Trustee shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission; and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result
of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information. Each other party agrees to assume all risks arising out of the use of electronic methods, including any non-secure method, such as, but without limitation, by facsimile or electronic mail, to submit instructions, directions, reports, notices or other communications or information to the Trustee, including without limitation, the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties.
If the Company gives a notice or communication to Holders, it will give a copy to the Trustee and each Agent at the same time.
Section 12.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
Section 12.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take or refrain from taking any action under this Indenture, the Company shall furnish to the Trustee:
(i)an Officers' Certificate in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05 hereof) 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; and
(ii)an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
Section 12.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) must comply with the provisions of TIA § 314(e) and must include:
(i)a statement substantially to the effect that the Person making such certificate or opinion has read such covenant or condition;
(ii)a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii)a statement substantially to the effect that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
(iv)a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied; provided, however, that with respect to matters of fact, an Opinion of Counsel may rely on an Officers' Certificate or certificates of public officials.
Section 12.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders.
No director, officer, employee, incorporator or stockholder of the Company, any of its Subsidiaries or any of its direct or indirect parent companies, as such, will have any liability for any obligations of the Company or any Guarantor under any Notes, this Indenture, the Note Guarantees, 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 such Notes. The waiver may not be effective to waive liabilities under the federal securities laws, and it is the view of the Commission that such waiver is against public policy.
Section 12.08 Governing Law.
THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 12.09 Jurisdiction; Waiver of Jury Trial.
(a)Each of the Company and the Guarantors hereby consents to the non-exclusive jurisdiction of any court of the State of New York or any U.S. Federal court, in each case, sitting in the Borough of Manhattan, The City of New York, New York, United States, and any appellate court from any thereof in any action or proceeding arising out of or related to the Notes, this Indenture or the Note Guarantees. Each of the Company and the Guarantors hereby appoints C T Corporation System located at 111 8th Avenue, New York, New York 10011 as its authorized agent upon which service of process may be served in any action or proceeding brought in any court of the State of New York or any U.S. Federal court sitting in the Borough of Manhattan, The City of New York in connection with this Indenture, the Notes or the Note Guarantees.
(b)EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 12.10 Waiver of Immunities.
To the extent that the Company or any Guarantor may in any jurisdiction claim for itself or its assets immunity from a suit, execution, attachment, whether in aid of execution, before judgment or otherwise, or other legal process in connection with and as set out in this Indenture, the Notes or the Note Guarantees and to the extent that in any jurisdiction there may
be immunity attributed to the Company or the Guarantors or the Company's or any Guarantor's assets, whether or not claimed, the Company or any Guarantor, as applicable, irrevocably agrees for the benefit of the Holders not to claim, and irrevocably waives, the immunity to the full extent permitted by law.
Section 12.11 Currency Rate Indemnity.
The Company and the Guarantors agree that, if a judgment or order made by any court for the payment of any amount in respect of this Indenture, any Notes or any Note Guarantee is expressed in a currency other than U.S. dollars, each of the Company and the Guarantors will indemnify the relevant payee against any deficiency arising from any variation in rates of exchange between the date as of which the U.S. dollars currency is notionally converted into the judgment currency for the purposes of the judgment or order and the date of actual payment. This indemnity will constitute a separate and independent obligation from the other obligations of the Company and the Guarantors under this Indenture, will give rise to a separate and independent cause of action, will apply irrespective of any indulgence granted from time to time and will continue in full force and effect notwithstanding any judgment or order for a liquidated sum or sums in respect of amounts due under this Indenture, the Notes or any Note Guarantee.
Section 12.12 Successors.
All agreements of the Company in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this Indenture will bind its successors. All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 10.04 hereof.
Section 12.13 Severability.
In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, then (to the extent permitted by applicable law) the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
Section 12.14 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy will be an original, but all of them together represent the same agreement.
Section 12.15 Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
Very truly yours,
SENSATA TECHNOLOGIES B.V.
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Attorney-in-Fact
Sensata Technologies B.V. Indenture
SENSATA TECHNOLOGIES, INC.
By: /s/ Martha Sullivan
Name: Martha Sullivan
Title: President and Chief Executive Officer
SENSATA TECHNOLOGIES MASSACHUSETTS, INC.
By: /s/ Martha Sullivan
Name: Martha Sullivan
Title: President and Chief Executive Officer
SENSATA TECHNOLOGIES US, LLC
By: /s/ Martha Sullivan
Name: Martha Sullivan
Title: President
SENSATA TECHNOLOGIES US II, LLC
By: /s/ Martha Sullivan
Name: Martha Sullivan
Title: President
Sensata Technologies B.V. Indenture
SENSATA TECHNOLOGIES HOLDING COMPANY US B.V.
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Director
SENSATA TECHNOLOGIES HOLLAND B.V.
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Director
SENSATA TECHNOLOGIES HOLDING COMPANY MEXICO B.V.
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Director
SENSATA TECHNOLOGIES US COOPERATIEF U.A.
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Director
Sensata Technologies B.V. Indenture
SENSATA TECHNOLOGIES MÉXICO, S. DE R.L. DE C.V.
By: /s/ Santiago Sepulveda Yturbe
Name: Santiago Sepulveda Yturbe
Title: Attorney-in-Fact
Sensata Technologies B.V. Indenture
SENSATA TECHNOLOGIES MALAYSIA SDN. BHD.
By: /s/ Peter Leong Choong Chi
Name: Peter Leong Choong Chi
Title: Director
Sensata Technologies B.V. Indenture
SENSATA TECHNOLOGIES JAPAN LIMITED
By: /s/ Akira Hayashi
Name: Akira Hayashi
Title: Representative Director
Sensata Technologies B.V. Indenture
SENSATA TECHNOLOGIES BERMUDA LTD.
By: /s/ Steve Reynolds
Name: Steve Reynolds
Title: Director
Sensata Technologies B.V. Indenture
SENSOR-NITE INDUSTRIAL EOOD
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Director
Sensata Technologies B.V. Indenture
SENSOR-NITE NV
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Attorney-in-Fact
Sensata Technologies B.V. Indenture
ST SCHRADER HOLDING COMPANY UK LIMITED
By: /s/ Martha Sullivan
Name: Martha Sullivan
Title: Director
Sensata Technologies B.V. Indenture
THE BANK OF NEW YORK MELLON, as Trustee, Registrar and Paying Agent
By: /s/ John T. Needham, Jr.
Name: John T. Needham, Jr.
Title: Vice President
Sensata Technologies B.V. Indenture
EXHIBIT A
[Face of Note]
[Insert legends required by the Indenture]
[Insert as appropriate:
144A CUSIP No.: 81725W AH6
144A ISIN: US81725WAH60
Reg S CUSIP No.: N78840 AK6
Reg S ISIN: USN78840AK61]
5.625% Senior Notes due 2024
No. [A][S]-[•] $__________
SENSATA TECHNOLOGIES B.V.
promise to pay to CEDE & CO. or registered assigns, the principal sum of _____________ DOLLARS [if the Note is a Global Note, add the following: (as revised by the Schedule of Increases and Decreases in Global Note, attached hereto)] on November 1, 2024.
Interest Payment Dates: May 1 and November 1, commencing May 1, 2015.
Additional provisions of this Note are set forth on the other side of this Note.
Record Dates: April 15 and October 15.
Dated: October 14, 2014
SENSATA TECHNOLOGIES B.V.
By:
Name:
Title:
Dated: October 14, 2014
Dated: October 14, 2014
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK MELLON, as Trustee
By:
Authorized Signatory
[Reverse of Note]
5.625% Senior Notes due 2024
Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
(1)INTEREST. Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Company”), promises to pay interest on the principal amount of this Note at 5.625% per annum from [o], 20[•] until maturity. The Company will pay interest, if any, semi-annually in arrears on May 1 and November 1 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from October 14, 2014 until the principal hereof is due. The first Interest Payment Date shall be May 1, 2015. The Company will pay interest on overdue principal at the rate borne by the Notes, and it shall pay interest on overdue installments of interest at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
(2)METHOD OF PAYMENT. The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the April 15 or October 15 next preceding the Interest Payment Date (whether or not a Business Day), even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Company will pay principal, premium, if any, and interest on Definitive Notes at the office of the Paying Agent, provided, however, that the Company may, at its option, pay interest by (i) check mailed to the address of the Person entitled to the payment as it appears in the register maintained by the Registrar; or (ii) if any Holder of Definitive Notes holds an aggregate principal amount in excess of $5.0 million, by wire transfer in immediately available funds to the place and account designated in writing by such Holder at least 15 calendar days prior to the Interest Payment Date. Payments on Global Notes shall be made to DTC in accordance with its applicable procedures. Such payment will be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
(3)PAYING AGENT AND REGISTRAR. Initially, The Bank of New York Mellon, as the Trustee, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.
(4)INDENTURE. The Company issued the Notes under the Indenture dated as of October 14, 2014 (the “Indenture”) among the Company, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all the terms and provisions of the Indenture, and Holders are referred to the Indenture for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
The Notes are unsecured senior obligations of the Company. This Note is one of the Initial Notes referred to in the Indenture. The Notes include the Initial Notes and any
Additional Notes issued in exchange for Initial Notes or Additional Notes pursuant to the Indenture. The Initial Notes and any Additional Notes are treated as a single class of securities under the Indenture. The Indenture imposes certain limitations on the ability of the Company and its Subsidiaries to, among other things, incur Indebtedness, create or incur Liens and enter into sale and leaseback transactions. The Indenture also imposes limitations on the ability of the Company and each Guarantor to consolidate or merge with or into any other Person or convey, transfer or lease all or substantially all of its property.
To Guarantee the due and punctual payment of the principal and interest on the Notes and all other amounts payable by the Company under the Indenture and the Notes when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Guarantors have, jointly and severally, unconditionally Guaranteed the obligations of the Company under the Notes on an unsecured senior basis pursuant to the terms of the Indenture.
(5)OPTIONAL REDEMPTION.
(a)Except pursuant to Section 3.07(d) or (e) of the Indenture, the Notes will not be optionally redeemable by the Company; provided, however, the Company may acquire the Notes by means other than an optional redemption.
(b)At any time and from time to time, upon not less than 30 nor more than 60 days' notice to the Holders, the Company may redeem some or all of the Notes at a price calculated by the Company of 100% of the principal amount of the Notes redeemed plus the Applicable Premium, plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of Holders of record on the record date to receive interest due on the interest payment date).
(c)The Company may, at its option, redeem the Notes, in whole but not in part, at any time upon not less than 15 days' nor more than 30 days' notice to the Holders (which notice shall be irrevocable and given in accordance with Section 3.03 of the Indenture), at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the redemption date, premium, if any, and all Additional Amounts, if any, then due and which will become due on the date of redemption as a result of the redemption or otherwise, if the Company determines in good faith that the Company or any Guarantor is, or on the next date on which any amount would be payable in respect of the Notes, would be obligated to pay Additional Amounts in respect of the Notes pursuant to the terms and conditions thereof, which the Company or such Guarantor, as the case may be, cannot avoid by the use of reasonable measures available to it (including, without limitation, making payment through a Paying Agent located in another jurisdiction), as a result of:
(1)any change in, or amendment to, the laws or treaties (or any regulations, official guidance or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction affecting taxation which becomes effective on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction that arises after the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under the Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder); or
(2)any change in the official application, administration, or interpretation of the laws, treaties, regulations, official guidance or rulings of any Relevant Taxing Jurisdiction (including a holding, judgment, or order by a court of competent jurisdiction), on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction
has changed since the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under the Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder).
Notwithstanding the foregoing, the Company may not redeem the Notes under this provision if a Relevant Taxing Jurisdiction changes and the Company is obligated to pay Additional Amounts as a result of a Change in Tax Law of such Relevant Taxing Jurisdiction which was officially announced at the time the latter became a Relevant Taxing Jurisdiction.
Notwithstanding the foregoing, no such notice of redemption will be given (a) earlier than 90 days prior to the earliest date on which the Company or any Guarantor, would be obliged to make such payment of Additional Amounts or withholding if a payment in respect of the Notes or the relevant Note Guarantee, as the case may be, were then due and (b) unless at the time such notice is given, the obligation to pay Additional Amounts remains in effect.
(d)Except for redemption pursuant to clause (c) above, notices of optional redemption will be given at least 30 but not more than 60 days before the redemption date to each Holder of Notes to be redeemed in accordance with Section 12.02 of the Indenture, except that (x) redemption notices may be given more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture.
(6)MANDATORY REDEMPTION.
(a)Except as described in clause (b) below, the Company is not required to make any mandatory redemption or sinking fund payments with respect to the Notes.
(b)If (i) the Schrader Acquisition has not been consummated on or prior to the Schrader Acquisition Deadline or (ii) prior to the Schrader Acquisition Deadline, either (x) the Schrader Acquisition Agreement has been terminated or (y) the Company determines in its sole discretion that the conditions to the Schrader Acquisition set forth in the Schrader Acquisition Agreement cannot be satisfied (the earliest to occur of the events described in clauses (i) and (ii), the “Schrader Acquisition Termination Date”), the Company shall redeem (the “Special Mandatory Redemption”) all of the Notes on the Special Mandatory Redemption Date at the Special Mandatory Redemption Price.
(c)The notice of Special Mandatory Redemption will be given not less than three Business Days prior to the Special Mandatory Redemption Date to each Holder in accordance with Section 12.02 of the Indenture. The notice of Special Mandatory Redemption may not be conditional.
(7)REPURCHASE AT THE OPTION OF HOLDER. If a Change of Control occurs, unless the Company at such time has given notice of redemption with respect to all outstanding Notes, each Holder will have the right to require the Company to repurchase all or any part (in a minimum principal amount equal to $2,000 and integral multiples of $1,000 in excess thereof) of that Holder's Notes pursuant to a change of control offer (the “Change of Control Offer”) on the terms set forth in the Indenture. In the Change of Control Offer, the Company will offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest on the Notes repurchased, to, but excluding, the Change of Control Payment Date. Within 30 days following any Change of Control, unless the Company at such time has given notice of redemption with respect to all outstanding Notes, the Company will give notice to each Holder describing the transaction or transactions that constitute
the Change of Control and offering to repurchase Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is given.
(8)DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in minimum denominations of $2,000 (the “Minimum Dollar Denomination”) and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not register the transfer of or exchange any Note selected for redemption in whole or in part or subject to purchase in a Change of Control Offer, except the unredeemed or unpurchased portion of any Note being redeemed or purchased in part. Also, the Company need not exchange or register the transfer of any Notes for a period of 15 days before the day the Company gives notice of redemption of the Notes or makes a Change of Control Offer and ending at the close of business on the day notice of redemption is given or the Change of Control Offer is made.
(9)PERSONS DEEMED OWNERS. The registered Holder of a Note shall be treated as its owner for all purposes.
(10)AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent of the Company and Holders of a majority in aggregate principal amount of the then outstanding Notes, including Additional Notes, if any, voting as a single class, and any existing Default or Event or Default or compliance with any provision of the Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes, including Additional Notes, if any, voting as a single class. Without the consent of any Holder of a Note, the Indenture, the Notes or the Note Guarantees may be amended or supplemented:
(i)to cure any ambiguity, mistake, defect or inconsistency;
(ii)to provide for uncertificated Notes in addition to or in place of certificated Notes;
(iii)to provide for the assumption by a Successor Company or a successor company of a Guarantor, as applicable, of the Company's or such Guarantor's obligations under the Indenture;
(iv)to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights hereunder of any Holder;
(v)to secure the Notes;
(vi)to add a Note Guarantee;
(vii)to conform the text of the Indenture or the Notes to any provision of the “Description of Notes” included in the Offering Memorandum relating to the Notes;
(viii)to provide for the issuance of Additional Notes in accordance with the provisions set forth in the Indenture; or
(ix)to release a Guarantor from its Note Guarantee; provided, that such sale, designation or release is in accordance with the applicable provisions of the Indenture,
provided, that the Company has delivered to the Trustee an Opinion of Counsel and an Officers' Certificate, each stating that such amendment or supplement complies with the provisions of the Indenture.
(11)DEFAULTS AND REMEDIES. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency with respect to the Company, any Subsidiary of the Company that is a Significant Subsidiary or any group of Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary, all outstanding Notes will become due and payable immediately without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Holders of a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may, on behalf of the Holders of all of the Notes, rescind an acceleration or waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of interest or premium, if any, on, or the principal of, the Notes. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required, upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.
(12)DISCHARGE AND DEFEASANCE. Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes, the Note Guarantees and the Indenture if the Company deposits with the Trustee money or U.S. Government Securities for the payment of principal of and interest on the Notes to redemption or maturity, as the case may be.
(13)TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.
(14)NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Company, the Parent or any Subsidiary, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
(15)AUTHENTICATION. This Note will not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
(16)ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(17)CUSIP NUMBERS, ISINS. The Company has caused CUSIP numbers and ISINs to be printed on the Notes, and the Trustee may use CUSIP numbers and ISINs in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption, and reliance may be placed only on the other identification numbers placed thereon.
(18)GOVERNING LAW. THE LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES.
(19)JURISDICTION; WAIVER OF JURY TRIAL. (a) Each of the Company and the Guarantors has consented to the non-exclusive jurisdiction of any court of the State of New York or any U.S. Federal court, in each case, sitting in the Borough of Manhattan, The City of New York, New York, United States, and any appellate court from any thereof in any action or proceeding arising out of or related to this Note, the Indenture or the Note Guarantees. Each of the Company and the Guarantors has appointed C T Corporation System located at 111 8th Avenue, New York, New York 10011 as its authorized agent upon which service of process may be served in any action or proceeding brought in any court of the State of New York or any U.S. Federal court sitting in the Borough of Manhattan, The City of New York in connection with the Indenture, this Note or the Note Guarantees.
(b) EACH OF THE PARTIES TO THE INDENTURE HAS IRREVOCABLY WAIVED ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE INDENTURE, THIS NOTE, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(20)WAIVER OF IMMUNITIES. To the extent that the Company or any Guarantor may in any jurisdiction claim for itself or its assets immunity from a suit, execution, attachment, whether in aid of execution, before judgment or otherwise, or other legal process in connection with and as set out in the Indenture, this Note or the Note Guarantees and to the extent that in any jurisdiction there may be immunity attributed to the Company or the Guarantors or the Company's or any Guarantor's assets, whether or not claimed, the Company or any Guarantor, as applicable, has irrevocably agreed for the benefit of the Holders not to claim, and irrevocably waived, the immunity to the full extent permitted by law.
(21)CURRENCY RATE INDEMNITY The Company and the Guarantors have agreed that, if a judgment or order made by any court for the payment of any amount in respect of the Indenture, any Notes or any Note Guarantee is expressed in a currency other than U.S. dollars, each of the Company and the Guarantors will indemnify the relevant payee against any deficiency arising from any variation in rates of exchange between the date as of which the U.S. dollars currency is notionally converted into the judgment currency for the purposes of the judgment or order and the date of actual payment. This indemnity constitutes a separate and independent obligation from the other obligations of the Company and the Guarantors under the Indenture, will give rise to a separate and independent cause of action, will apply irrespective of any indulgence granted from time to time and will continue in full force and effect notwithstanding any judgment or order for a liquidated sum or sums in respect of amounts due under the Indenture or the Notes or any Note Guarantee.
The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:
Sensata Technologies B.V.,
c/o Sensata Technologies Inc.
529 Pleasant Street
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Financial Officer
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: ___________________________________
(Insert assignee’s legal name)
_____________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Date: ______________________
Your Signature: _____________________________
(Sign exactly as your name
appears on the face of this Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 4.15 of the Indenture, check the box below:
☐ Section 4.15
If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.15 of the Indenture, state the amount you elect to have purchased:
$ _______________________
Date: _____________________
Your Signature: ___________________________
(Sign exactly as your name
appears on the face of this Note)
Tax Identification No.:__________________________
Signature Guarantee:*
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
SCHEDULE OF INCREASES AND DECREASES OF INTERESTS IN THE GLOBAL NOTE
[To be inserted for Rule 144A Global Note]
The following transfer or exchange of a part of this Rule 144A Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Rule 144A Global Note, or to reflect a redemption or repurchase of the Notes and cancellation, have been made:
| | | | | | | | | | | | | | |
Date of Increase or Decrease | Amount of decrease in Principal Amount at Maturity of this Global Note | Amount of increase in Principal Amount at Maturity of this Global Note | Principal Amount at Maturity of this Global Note following such decrease (or increase) | Signature of authorized officer of Trustee or Custodian |
| | | | |
| | | | |
| | | | |
[To be inserted for Regulation S Global Note]
The following transfer or exchange of a part of this Regulation S Global Note for an interest in another Global Note or for a Definitive Note or of other Restricted Global Notes or Definitive Note for an interest in this Regulation S Global Note, or to reflect a redemption or repurchase of the Notes and cancellation, have been made:
| | | | | | | | | | | | | | |
Date of Increase or Decrease | Amount of decrease in Principal Amount at Maturity of this Global Note | Amount of increase in Principal Amount at Maturity of this Global Note | Principal Amount at Maturity of this Global Note following such decrease (or increase) | Signature of authorized officer of Trustee or Custodian |
| | | | |
| | | | |
| | | | |
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Sensata Technologies B.V.
c/o Sensata Technologies, Inc.
529 Pleasant Street
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Administrative and Financial Officer
The Bank of New York Mellon
Corporate Trust Division
101 Barclay Street, 7th Floor East
New York, NY 10286
Facsimile No.: (212) 815-5390
Attention: Corporate Trust Division
Re: 5.625% Senior Notes due 2024
Reference is hereby made to the Indenture, dated as of October 14, 2014 (the “Indenture”), among Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands, as issuer (the “Company”), the Guarantors party thereto and The Bank of New York Mellon, a New York banking corporation, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
______________, (the “Transferor”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $_________ in such Note[s] or interests (the “Transfer”), to ____________ (the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. __ Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.
2. __ Check if Transferee will take delivery of a beneficial interest in a Legended Regulation S Global Note or a Restricted Definitive Note pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Legended Regulation S Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.
3. __ Check and complete if Transferee will take delivery of a beneficial interest in a Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):
(a)_ such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;
or
(b)_ such Transfer is being effected to the Company or a subsidiary thereof;
or
(c)_ such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act;
or
(d)_ such Transfer is being effected to an Institutional Accredited Investor and pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Note or Restricted Definitive Notes and the requirements of the exemption claimed, which certification is supported by if such Transfer is in respect of a principal amount of Notes at the time of transfer of less than $100,000, an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the effect
that such Transfer is in compliance with the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Notes and in the Indenture and the Securities Act.
4. __ Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a)_ Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
(b)_ Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
(c)_ Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a)_ a beneficial interest in the:
(i)__ 144A Global Note (CUSIP ), or
(ii)__ Regulation S Global Note (CUSIP ); or
(b)_ a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a)_ a beneficial interest in the:
(i)__ 144A Global Note (CUSIP ), or
(ii)__ Regulation S Global Note (CUSIP ), or
(iii)__ Unrestricted Global Note (CUSIP ); or
(b)_ a Restricted Definitive Note; or
(c)_ an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Sensata Technologies B.V.
c/o Sensata Technologies, Inc.
529 Pleasant Street
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Administrative and Financial Officer
The Bank of New York Mellon
Corporate Trust Division
101 Barclay Street, 7th Floor East
New York, NY 10286
Facsimile No.: (212) 815-5390
Attention: Corporate Trust Division
Re: 5.625% Senior Notes due 2024
Reference is hereby made to the Indenture, dated as of October 14, 2014 (the “Indenture”), among Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands, as issuer (the “Company”), the Guarantors party thereto and The Bank of New York Mellon, a New York banking corporation, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
___________________, (the “Owner”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $________ (CUSIP __________; ISIN __________) in such Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note
(a)_ Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owner's beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner's own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(b)_ Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note. In connection with the Exchange of the Owner's beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner's own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(c)_ Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note. In connection with the Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner's own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(d)_ Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In connection with the Owner's Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes
(a)_ Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In connection with the Exchange of the Owner's beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner's own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.
(b)_ Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note. In connection with the Exchange of the Owner's Restricted Definitive Note for a beneficial interest in the [CHECK ONE] 144A Global Note, Regulation S Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner's own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
EXHIBIT D
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally Guaranteed, to the extent set forth in and subject to the provisions in the Indenture dated as of October 14, 2014 (as amended, modified or supplemented from time to time, the “Indenture”) among Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands, the guarantors party thereto, and The Bank of New York Mellon, a New York banking corporation, as trustee (the “Trustee”), (a) prompt payment of the principal of, premium, if any, and accrued and unpaid interest and defaulted interest, if any, on the Notes when due, whether at maturity, by acceleration, redemption or otherwise, and the prompt payment of interest on overdue principal, premium, if any, and interest and defaulted interest, if any, on the Notes (pursuant to Section 2.12 of the Indenture), if lawful (subject in all cases to any applicable grace periods provided in the Indenture and the Notes) when due, and all other obligations of the Company to the Holders or the Trustee under the Indenture and the Notes will be promptly paid in full, all in accordance with the terms of the Indenture and the Notes and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same will be promptly paid in full when due in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the Note Guarantee and the Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee. Each Holder of a Note, by accepting the same, agrees to and shall be bound by such provisions. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS HEREOF, each Guarantor has caused this Notation of Guarantee to be signed manually or by facsimile by its duly authorized officer.
[NAME OF GUARANTOR]
EXHIBIT E
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of ________, 20__, among ___________ (the “New Guarantor”), a subsidiary of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Company”), the Company, the existing Guarantors and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company and the existing Guarantors have heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified, the “Indenture”), dated as of October 14, 2014 providing for the issuance of 5.625% Senior Notes due 2024 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantor shall execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantor shall unconditionally Guarantee all of the Company's Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Company and the existing Guarantors are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Guarantor, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The New Guarantor hereby agrees, jointly and severally with all existing Guarantors (if any), to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture, and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Company, any parent entity of the Company or any Subsidiary, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to the New Guarantor shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES 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. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
9. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantee of the New Guarantor or this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
Dated: ____________________, 20__
[NEW GUARANTOR]
By:
Name:
Title:
SENSATA TECHNOLOGIES B.V.
By:
Name:
Title:
[EXISTING GUARANTORS]
By:
Name:
Title:
THE BANK OF NEW YORK MELLON as Trustee
By:
Name:
Title:
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of December 1, 2014, among August UK Holdco Limited, ST August Lux Intermediate Holdco S.À R.L., ST August Lux Company S.À R.L., August Lux Holding Company S.À R.L., August LuxUK Holding Company S.À R.L., August Brazil Holding Company S.À R.L., Sensata Technologies France SAS, August France Holding Company and Sensata Finance Ireland Limited (the “New Guarantors”), subsidiaries of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Company”), the Company, the existing Guarantors and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company and the existing Guarantors have heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified, the “Indenture”), dated as of October 14, 2014 providing for the issuance of 5.625% Senior Notes due 2024 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantors shall execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantors shall unconditionally Guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantees”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Company and the existing Guarantors are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Guarantors, the Company, the existing Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each of the New Guarantors hereby agrees, jointly and severally with all existing Guarantors, to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture, and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
Notwithstanding anything herein to the contrary, the Note Guarantee granted by any New Guarantor which is incorporated and established in the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under Article 10 of the Indenture to Guarantee the obligations thereunder of (i) the Company and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(a) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in article 34 of the Luxembourg law dated 19 December 2002 relating to the Register of Commerce and Companies as well as the accounting and the annual accounts of companies, as amended) as reflected in its last annual accounts (approved by a shareholders’
meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(b) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in article 34 of the Luxembourg law dated 19 December 2002 relating to the Register of Commerce and Companies as well as the accounting and the annual accounts of companies, as amended) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Supplemental Indenture.
The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Notwithstanding anything herein to the contrary, the obligations and liabilities of any Guarantor incorporated in France (each, a “French Guarantor”) are subject to the following limitations:
(a) The obligations and liabilities of any French Guarantor under its Note Guarantee shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance within the meaning of article L. 225-216 of the French Commercial Code and/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 laws or regulations having the same effect, as interpreted by French courts;
(b) The obligations and liabilities of any French Guarantor under its Note Guarantee for the Company’s Obligations under the Indenture and the Notes shall be limited, at any time, to an amount equal to the aggregate of all amounts made available under the Notes and the Indenture to the Company to the extent directly or indirectly on-lent to such French Guarantor and/or its direct and indirect Subsidiaries under intercompany loan agreements and outstanding at the date a payment is to be made by such French Guarantor under this Supplemental Indenture, the Indenture and the Notes, it being specified that any payment made by a French Guarantor under its Note Guarantee in respect of the Company’s Obligations shall reduce pro tanto the outstanding amount of the intercompany loans due by such French Guarantor or its relevant direct or indirect Subsidiary under the intercompany loan agreements referred to above and that any repayment of the intercompany loans by such French Guarantor or its relevant direct or indirect Subsidiary shall reduce pro tanto the amount payable by such French Guarantor under its Note Guarantee; and
(c) It is acknowledged that no French Guarantor is acting jointly and severally with the other Guarantors and no French Guarantor shall therefore be considered as “co-débiteur solidaire” as to its obligations pursuant to its Note Guarantee.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Company, any parent entity of the Company or any Subsidiary, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to the New Guarantors shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
9. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantees of the New Guarantors or this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
AUGUST UK HOLDCO LIMITED, as a New
Guarantor
By: /s/ Martha Sullivan
Name: Martha Sullivan
Title: Director
Signature Page to First Supplemental Indenture
SENSATA TECHNOLOGIES FRANCE SAS
/s/ Geert Braaksma
Name: Geert Braaksma
Title: President
AUGUST FRANCE HOLDING COMPANY
/s/ Jean-Michel Bolmont
Name: Jean-Michel Bolmont
Title: President
Signature Page to First Supplemental Indenture
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
ST August Lux Company S.à r.l.
/s/ Cedric Bradfer
Name: Cedric Bradfer
Title: Manager
ST August Lux Intermediate
Holdco S. à r.l.
/s/ Cedric Bradfer
Name: Cedric Bradfer
Title: Manager
August Lux Holding Company
/s/ Cedric Bradfer
Name: Cedric Bradfer
Title: Manager
August Brazil Holding Company
/s/ Cedric Bradfer
Name: Cedric Bradfer
Title: Manager
August LuxUK Holding Company
/s/ Cedric Bradfer
Name: Cedric Bradfer
Title: Manager
Signature Page to First Supplemental Indenture
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
SENSATA FINANCE IRELAND LIMITED
/s/ Graeme Thompson
Name: Graeme Thompson
Title: Director
Signature Page to First Supplemental Indenture
SENSATA TECHNOLOGIES B.V., as the Issuer
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Attorney-in-Fact
Signature Page to First Supplemental Indenture
SENSATA TECHNOLOGIES, INC., as an Existing Guarantor
By: /s/ Martha Sullivan
Name: Martha Sullivan
Title: President and Chief Executive Officer
SENSATA TECHNOLOGIES MASSACHUSETTS, INC., as an Existing Guarantor
By: /s/ Martha Sullivan
Name: Martha Sullivan
Title: President and Chief Executive Officer
SENSATA TECHNOLOGIES US, LLC, as an Existing Guarantor
By: /s/ Martha Sullivan
Name: Martha Sullivan
Title: President
SENSATA TECHNOLOGIES US II, LLC, as an Existing Guarantor
By: /s/ Martha Sullivan
Name: Martha Sullivan
Title: President
ST SCHRADER HOLDING COMPANY UK LIMITED, as an Existing Guarantor
By: /s/ Martha Sullivan
Name: Martha Sullivan
Title: Director
Signature Page to First Supplemental Indenture
SENSATA TECHNOLOGIES HOLDING COMPANY U.S., B.V., as an Existing Guarantor
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Director
SENSATA TECHNOLOGIES HOLLAND, B.V., as an Existing Guarantor
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Director
SENSATA TECHNOLOGIES HOLDING COMPANY MEXICO, B.V., as an Existing Guarantor
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Director
SENSATA TECHNOLOGIES US COOPERATIEF, U.A., as an Existing Guarantor
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Director
SENSOR-NITE NV, as an Existing Guarantor
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Director
Signature Page to First Supplemental Indenture
SENSOR-NITE INDUSTRIAL EOOD, as an Existing Guarantor
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Director
Signature Page to First Supplemental Indenture
SENSATA TECHNOLOGIES BERMUDA LTD.,
as an Existing Guarantor
By: /s/ Steve Reynolds
Name: Steve Reynolds
Title: Director
Signature Page to First Supplemental Indenture
SENSATA TECHNOLOGIES DE MÉXICO, S. DE. R.L. DE C.V., as an Existing Guarantor
By: /s/ Santiago Sepulveda Yturbe
Name: Santiago Sepulveda Yturbe
Title: Attorney-in-Fact
Signature Page to First Supplemental Indenture
SENSATA TECHNOLOGIES JAPAN LIMITED,
as an Existing Guarantor
By: /s/ Akira Hayashi
Name: Akira Hayashi
Title: Representative Director
Signature Page to First Supplemental Indenture
SENSATA TECHNOLOGIES MALAYSIA SDN, BHD., as an Existing Guarantor
By: /s/ Peter Leong Choong Chi
Name: Peter Leong Choong Chi
Title: Director
Signature Page to First Supplemental Indenture
THE BANK OF NEW YORK MELLON,
as Trustee
By: /s/ Catherine F. Donohue
Name: Catherine F. Donohue
Title: Vice President
Signature Page to First Supplemental Indenture
SECOND SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of March 17, 2015, among STI HOLDCO, INC. (the “New Guarantor”), a subsidiary of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Company”), the Company, the existing Guarantors and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S SETH
WHEREAS, the Company and the existing Guarantors have heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified, the “Indenture”), dated as of October 14, 2014 providing for the issuance of 5.625% Senior Notes due 2024 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantor shall execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantor shall unconditionally guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Company and the existing Guarantors are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Guarantor, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The New Guarantor hereby agrees, jointly and severally with all existing Guarantors (if any), to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture, and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
Notwithstanding anything herein to the contrary, the Note Guarantee granted by any Guarantor which is incorporated and established in the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under Article 10 of the Indenture to Guarantee the obligations thereunder of (i) the Company and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(a) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in article 34 of the Luxembourg law dated 19 December 2002 relating to the Register of Commerce and Companies as well as the accounting and the annual accounts of companies, as amended) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(b) 90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in article 34 of the Luxembourg law dated 19 December 2002
relating to the Register of Commerce and Companies as well as the accounting and the annual accounts of companies, as amended) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Supplemental indenture.
The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Notwithstanding anything herein to the contrary, the obligations and liabilities of any Guarantor incorporated in France (each, a “French Guarantor”) are subject to the following limitations:
(a) The obligations and liabilities of any French Guarantor under its Note Guarantee shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance within the meaning of article L. 225-216 of the French Commercial Code and/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 laws or regulations having the same effect, as interpreted by French courts;
(b) The obligations and liabilities of any French Guarantor under its Note Guarantee for the Company’s Obligations under the Indenture and the Notes shall be limited, at any time, to an amount equal to the aggregate of all amounts made available under the Notes and the Indenture to the Company to the extent directly or indirectly on-lent to such French Guarantor and/or its direct and indirect Subsidiaries under intercompany loan agreements and outstanding at the date a payment is to be made by such French Guarantor under this Supplemental Indenture, the Indenture and the Notes, it being specified that any payment made by a French Guarantor under its Note Guarantee in respect of the Company’s Obligations shall reduce pro tanto the outstanding amount of the intercompany loans due by such French Guarantor or its relevant direct or indirect Subsidiary under the intercompany loans referred to above and that any repayment of the intercompany loans by such French Guarantor or its relevant direct or indirect Subsidiary shall reduce pro tanto the amount payable by such French Guarantor under its Note Guarantee; and
(c) It is acknowledged that no French Guarantor is acting jointly and severally with the other Guarantors and no French Guarantor shall therefor be considered as “co-débiteur solidaire” as to its obligations pursuant to its Note Guarantee.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Company, any parent entity of the Company or any Subsidiary, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to the New Guarantor shall be given as provided in Section 12.02 of 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 heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
9. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantee of the New Guarantor or this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
STI HOLDCO, INC., as the new Guarantor
By: /s/ Martha Sullivan
Name: Martha Sullivan
Title: President
Signature Page to Second Supplemental Indenture
AUGUST UK HOLDCO LIMITED, as an existing Guarantor
By: /s/ Martha Sullivan
Name: Martha Sullivan
Title: Director
ST SCHRADER HOLDING COMPANY UK LIMITED, as an existing Guarantor
By: /s/ Martha Sullivan
Name: Martha Sullivan
Title: Director
Signature Page to Second Supplemental Indenture
SENSATA TECHNOLOGIES FRANCE SAS, as an existing Guarantor
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: President
AUGUST FRANCE HOLDING COMPANY, as an existing Guarantor
By: /s/ Jean-Michel Bolmont
Name: Jean-Michel Bolmont
Title: President
Signature Page to Second Supplemental Indenture
ST AUGUST LUX COMPANY S.ÀR.L., as an existing Guarantor
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Class A Manager
ST. AUGUST LUX INTERMEDIATE HOLDCO S.A.R.L., as an existing Guarantor
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Class A Manager
AUGUST LUX HOLDING COMPANY, as an existing Guarantor
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Class A Manager
AUGUST BRAZIL HOLDING COMPANY, as an existing Guarantor
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Class A Manager
AUGUST LUXUK HOLDING COMPANY, as an existing Guarantor
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Class A Manager
Signature Page to Second Supplemental Indenture
SENSATA FINANCE IRELAND LIMITED, as an existing Guarantor
By: /s/ Graeme Thompson
Name: Graeme Thompson
Title: Director
Signature Page to Second Supplemental Indenture
SENSATA TECHNOLOGIES, INC., as an existing Guarantor
By: /s/ Martha Sullivan
Name: Martha Sullivan
Title: President and Chief Executive Officer
SENSATA TECHNOLOGIES MASSACHUSETTS, INC., as an existing Guarantor
By: /s/ Martha Sullivan
Name: Martha Sullivan
Title: President and Chief Executive Officer
SENSATA TECHNOLOGIES US, LLC, as an existing Guarantor
By: /s/ Martha Sullivan
Name: Martha Sullivan
Title: President
SENSATA TECHNOLOGIES US II, LLC, as an existing Guarantor
By: /s/ Martha Sullivan
Name: Martha Sullivan
Title: President
Signature Page to Second Supplemental Indenture
SENSATA TECHNOLOGIES HOLDING COMPANY U.S., B.V., as an Existing Guarantor
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Director
SENSATA TECHNOLOGIES HOLLAND, B.V., as an Existing Guarantor
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Director
SENSATA TECHNOLOGIES HOLDING COMPANY MEXICO, B.V., as an Existing Guarantor
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Director
SENSATA TECHNOLOGIES US COOPERATIEF, U.A., as an Existing Guarantor
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Director
SENSOR-NITE NV, as an Existing Guarantor
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Director
Signature Page to Second Supplemental Indenture
SENSATA TECHNOLOGIES DE MÉXICO, S. DE. R.L. DE C.V., as an Existing Guarantor
By: /s/ Santiago Sepulveda Yturbe
Name: Santiago Sepulveda Yturbe
Title: Attorney-in-Fact
Signature Page to Second Supplemental Indenture
SENSATA TECHNOLOGIES MALYASIA SDN, BHD., as an Existing Guarantor
By: /s/ Peter Leong Choong Chi
Name: Peter Leong Choong Chi
Title: Director
Signature Page to Second Supplemental Indenture
SENSATA TECHNOLOGIES JAPAN LIMITED,
as an Existing Guarantor
By: /s/ Akira Hayashi
Name: Akira Hayashi
Title: Representative Director
Signature Page to Second Supplemental Indenture
SENSATA TECHNOLOGIES BERMUDA LTD.,
as an Existing Guarantor
By: /s/ Steve Reynolds
Name: Steve Reynolds
Title: Director
Signature Page to Second Supplemental Indenture
SENSOR-NITE INDUSTRIAL EOOD,
as an Existing Guarantor
By: /s/ Geert Braaksma
Name: Geert Braaksma
Title: Director
Signature Page to Second Supplemental Indenture
SENSATA TECHNOLOGIES B.V., as the Issuer
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Attorney-in-Fact
Signature Page to Second Supplemental Indenture
THE BANK OF NEW YORK MELLON
as Trustee
By: /s/ John T. Needham, Jr.
Authorized Signatory
Signature Page to Second Supplemental Indenture
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of November 27, 2015, among Sensata Technologies UK Financing Co. plc, CDI Netherlands B.V. and Sensata Finance Ireland II Limited (collectively, the “New Guarantors”), subsidiaries of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Company”), the Company, the existing Guarantors and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
WITNESSETH
WHEREAS, the Company and the existing Guarantors have heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified, the “Indenture”), dated as of October 14, 2014 providing for the issuance of 5.625% Senior Notes due 2024 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantors shall execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantors shall unconditionally Guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantees”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Company and the existing Guarantors are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Guarantors, the Company, the existing Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each of the New Guarantors hereby agrees, jointly and severally with all existing Guarantors, to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture, and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Company, any parent entity of the Company or any Subsidiary, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to the New Guarantors shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. JURISDICTION; WAIVER OF JURY TRIAL. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantees of the New Guarantors or this Supplemental Indenture.
[REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
SENSATA TECHNOLOGIES B.V., as the Issuer
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in Fact
[Signature Page to Third Supplemental Indenture]
Signed by Jeffrey Cote (name of director)
for and on behalf of /s/ Jeffrey Cote
SENSATA TECHNOLOGIES UK FINANCING CO. PLC, Director
as a New Guarantor
[Signature Page to Third Supplemental Indenture]
CDI NETHERLANDS B.V., as a New Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
[Signature Page to Third Supplemental Indenture]
GIVEN under the COMMON SEAL of
SENSATA FINANCE IRELAND LIMITED
as an Existing Guarantor,
and DELIVERED as a DEED:
/s/ Graeme Thompson
Graeme Thompson
Director
/s/ [illegible]
p.p. Goodbody Secretarial Limited Secretary
[Signature Page to Third Supplemental Indenture]
Signed by Martha Sullivan (name of director)
for and on behalf of
/s/ Martha Sullivan
AUGUST UK HOLDCO LIMITED, Director
as an Existing Guarantor
Signed by Martha Sullivan (name of director)
for and on behalf of
/s/ Martha Sullivan
ST SCHRADER HOLDING COMPANY UK LIMITED, Director
as an Existing Guarantor
[Signature Page to Third Supplemental Indenture]
AUGUST FRANCE HOLDING COMPANY
S.A.S., as an Existing Guarantor
By: /s/ Jean-Michael Bolmont
Name: Jean-Michael Bolmont
Title: President (Président)
[Signature Page to Third Supplemental Indenture]
SENSATA TECHNOLOGIES FRANCE
S.A.S., as an Existing Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: President (Président)
[Signature Page to Third Supplemental Indenture]
ST AUGUST LUX COMPANY S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand Duchy of Luxembourg
Share capital: USD 25,000
R.C.S. Luxembourg: B 192229
as an Existing Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager
[Signature Page to Third Supplemental Indenture]
ST AUGUST LUX INTERMEDIATE HOLDCO
S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand Duchy of Luxembourg
Share capital: USD 25,000
R.C.S. Luxembourg: B 192214
as an Existing Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager
[Signature Page to Third Supplemental Indenture]
AUGUST LUX HOLDING COMPANY,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand Duchy of Luxembourg
Share capital: USD 16,376
R.C.S. Luxembourg: B 167704
as an Existing Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager
[Signature Page to Third Supplemental Indenture]
AUGUST BRAZIL HOLDING COMPANY
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand Duchy of Luxembourg
Share capital: USD 16,375
R.C.S. Luxembourg: B 168084
as an Existing Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager
[Signature Page to Third Supplemental Indenture]
AUGUST LUXUK HOLDINIG COMPANY
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand Duchy of Luxembourg
Share capital: USD 16,375
R.C.S. Luxembourg: B 167757
as an Existing Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager
[Signature Page to Third Supplemental Indenture]
SIGNED AND DELIVERED as a DEED
for and on behalf of
SENSATA FINANCE IRELAND II LIMITED
as a New Guarantor,
by its lawfully appointed attorney:
/s/ Graeme Thompson
Name: Graeme Thompson
Title: Attorney
in the presence of:-
/s/ Louise Johnston
Signature of Witness
Solicitor
Occupation of Witness
North Well Quay Dublin 1
Address of Witness
[Signature Page to Third Supplemental Indenture]
SENSATA TECHNOLOGIES, INC., as an Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Chief Operating Officer
SENSATA TECHNOLOGIES MASSACHUSETTS, INC., as an Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Chief Financial Officer
SENSATA TECHNOLOGIES US, LLC, as an Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
SENSATA TECHNOLOGIES US II, LLC, as an Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
STI HOLDCO, INC., as an Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature Page to Third Supplemental Indenture]
SENSATA TECHNOLOGIES HOLDING COMPANY U.S., B.V., as an Existing Guarantor
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
SENSATA TECHNOLOGIES HOLLAND, B.V., as an Existing Guarantor
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
SENSATA TECHNOLOGIES HOLDING COMPANY MEXICO, B.V., as an Existing Guarantor
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
SENSATA TECHNOLOGIES US COÖPERATIEF, U.A., as an Existing Guarantor
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature Page to Third Supplemental Indenture]
SENSOR-NITE NV, as an Existing Guarantor
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature Page to Third Supplemental Indenture]
SENSATA TECHNOLOGIES BULGARIA EOOD
(formerly known as Sensor-Nite Industrial EOOD),
as an Existing Guarantor
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature Page to Third Supplemental Indenture]
SENSATA TECHNOLOGIES BERMUDA LTD.,
as an Existing Guarantor
By: /s/ Steve Reynolds
Name: Steve Reynolds
Title: Director
[Signature Page to Third Supplemental Indenture]
SENSATA TECHNOLOGIES DE MÉXICO, S. DE R.L. DE C.V., as an Existing Guarantor
By: /s/ Santiago Sepulveda
Name: Santiago Sepulveda
Title: Attorney in fact
[Signature Page to Third Supplemental Indenture]
SENSATA TECHNOLOGIES JAPAN LIMITED,
as an Existing Guarantor
By: /s/ Xiaodong Ye
Name: Xiaodong Ye
Title: Representative Director
[Signature Page to Third Supplemental Indenture]
SENSATA TECHNOLOGIES MALAYSIA SDN. BHD.,
as an Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature Page to Third Supplemental Indenture]
THE BANK OF NEW YORK MELLON, as Trustee, Registrar and Paying Agent
By: /s/ Teresa Wyszomierski
Name: Teresa Wyszomierski
Title: Vice President
[Signature Page to Third Supplemental Indenture]
FOURTH SUPPLEMENTAL INDENTURE
FOURTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of February 24, 2016, among Custom Sensors & Technologies US Corporation, Custom Sensors & Technologies US, LLC, Custom Sensors & Technologies Newco, Ltd., Custom Sensors & Technologies, Inc., Kavlico Corporation, Crydom, Inc., Newall Electronics, Inc. and BEI North America, LLC (collectively, the “New Guarantors”), subsidiaries of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Company”), the Company, the existing Guarantors and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
WITNESSETH
WHEREAS, the Company and the existing Guarantors have heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified, the “Indenture”), dated as of October 14, 2014 providing for the issuance of 5.625% Senior Notes due 2024 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantors shall execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantors shall unconditionally Guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantees”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Company and the existing Guarantors are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Guarantors, the Company, the existing Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each of the New Guarantors hereby agrees, jointly and severally with all existing Guarantors, to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture, and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Company, any parent entity of the Company or any Subsidiary, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to the New Guarantors shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. JURISDICTION; WAIVER OF JURY TRIAL. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantees of the New Guarantors or this Supplemental Indenture.
[REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
SENSATA TECHNOLOGIES B.V., as the Issuer
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
[Signature Page to Fourth Supplemental Indenture]
CUSTOM SENSORS & TECHNOLOGIES
US CORPORATION, as a New Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
CUSTOM SENSORS & TECHNOLOGIES
US, LLC, as a New Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
CUSTOM SENSORS & TECHNOLOGIES
INC., as a New Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
KAVLICO CORPORATION, as a New Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
CRYDOM, INC., as a New Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
[Signature Page to Fourth Supplemental Indenture]
NEWALL ELECTRONICS, INC., as a
New Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
BEI NORTH AMERICA, LLC, as a
New Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
Signed by Jeffrey Cote (name of director)
for and on behalf of /s/ Jeffrey Cote
CUSTOM SENSORS & TECHNOLOGIES NEWCO, LTD., Director
as a New Guarantor
[Signature Page to Fourth Supplemental Indenture]
SENSATA TECHNOLOGIES BULGARIA EOOD
(formerly known as Sensor-Nite Industrial EOOD),
as an Existing Guarantor
By: /s/ Gerben Ensing
Name: Gerben Ensing
Title: Director
[Signature Page to Fourth Supplemental Indenture]
SENSATA TECHNOLOGIES HOLDING COMPANY U.S., B.V., as an Existing Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
SENSATA TECHNOLOGIES HOLLAND, B.V., as an Existing Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
SENSATA TECHNOLOGIES HOLDING COMPANY MEXICO, B.V., as an Existing Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
SENSATA TECHNOLOGIES US COÖPERATIEF,
U.A., as an Existing Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
CDI NETHERLANDS B.V., as an Existing
Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
[Signature Page to Fourth Supplemental Indenture]
SENSOR-NITE NV, as an Existing Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
[Signature Page to Fourth Supplemental Indenture]
Signed by Jeffrey Cote (name of director)
for and on behalf of /s/ Jeffrey Cote
SENSATA TECHNOLOGIES UK FINANCING CO. PLC, Director
as an Existing Guarantor
[Signature Page to Fourth Supplemental Indenture]
Signed by Martha Sullivan (name of director)
for and on behalf of /s/ Martha Sullivan
AUGUST UK HOLDCO LIMITED, Director
as an Existing Guarantor
Signed by Martha Sullivan (name of director)
for and on behalf of /s/ Martha Sullivan
ST SCHRADER HOLDING COMPANY UK LIMITED, Director
as an Existing Guarantor
[Signature Page to Fourth Supplemental Indenture]
SENSATA TECHNOLOGIES FRANCE S.A.S., as
an Existing Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: President (Président)
[Signature Page to Fourth Supplemental Indenture]
AUGUST FRANCE HOLDIING COMPANY
S.A.S., as an Existing Guarantor
By: /s/ Jean-Michel Bolmont
Name: Jean-Michel Bolmont
Title: President (Président)
[Signature Page to Fourth Supplemental Indenture]
ST AUGUST LUX COMPANY S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand Duchy of Luxembourg
Share capital: USD 25,000
R.C.S. Luxembourg: B 192229
as an Existing Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature Page to Fourth Supplemental Indenture]
ST AUGUST LUX INTERMEDIATE HOLDCO
S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand Duchy of Luxembourg
Share capital: USD 25,000
R.C.S. Luxembourg: B 192214
as an Existing Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature Page to Fourth Supplemental Indenture]
AUGUST LUX HOLDING COMPANY, S.Á R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand Duchy of Luxembourg
Share capital: USD 16,376
R.C.S. Luxembourg: B 167704
as an Existing Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature Page to Fourth Supplemental Indenture]
AUGUST BRAZIL HOLDING COMPANY S.À
R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand Duchy of Luxembourg
Share capital: USD 16,375
R.C.S. Luxembourg: B 168084
as an Existing Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature Page to Fourth Supplemental Indenture]
AUGUST LUXUK HOLDINIG COMPANY S.À
R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand Duchy of Luxembourg
Share capital: USD 16,375
R.C.S. Luxembourg: B 167757
as an Existing Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature Page to Fourth Supplemental Indenture]
SENSATA FINANCE IRELAND LIMITED, as an
Existing Guarantor
By: /s/ Graeme Thompson
Name: Graeme Thompson
Title: Director
SENSATA FINANCE IRELAND LIMITED II, as
an Existing Guarantor
By: /s/ Graeme Thompson
Name: Graeme Thompson
Title: Director
[Signature Page to Fourth Supplemental Indenture]
SENSATA TECHNOLOGIES, INC., as an Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Chief Operating Officer
SENSATA TECHNOLOGIES MASSACHUSETTS, INC., as an Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Chief Financial Officer
SENSATA TECHNOLOGIES US, LLC, as an Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Manager
SENSATA TECHNOLOGIES US II, LLC, as an Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Manager
STI HOLDCO, INC., as an Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature Page to Fourth Supplemental Indenture]
SENSATA TECHNOLOGIES BERMUDA LTD.,
as an Existing Guarantor
By: /s/ Steve Reynolds
Name: Steve Reynolds
Title: Director
[Signature Page to Fourth Supplemental Indenture]
SENSATA TECHNOLOGIES DE MÉXICO, S.
DE R.L. DE C.V., as an Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature Page to Fourth Supplemental Indenture]
SENSATA TECHNOLOGIES JAPAN LIMITED,
as an Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature Page to Fourth Supplemental Indenture]
SENSATA TECHNOLOGIES MALAYSIA,
as an Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature Page to Fourth Supplemental Indenture]
THE BANK OF NEW YORK MELLON, as
Trustee, Registrar and Paying Agent
By: /s/ Teresa Wyszomierski
Name: Teresa Wyszomierski
Title: Vice President
[Signature Page to Fourth Supplemental Indenture]
FIFTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of October 10, 2017, among SENSATA TECHNOLOGIES B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Issuer”), each of the Guarantors under the Indenture referred to below (the “Guarantors”), and THE BANK OF NEW YORK MELLON, as Trustee under the Indenture referred to below (the “Trustee”).
WITNESSETH:
WHEREAS the Issuer has heretofore executed and delivered to the Trustee an indenture dated as of October 14, 2014 (as amended, supplemented or otherwise modified to date, the “Indenture”), by and among the Issuer, the Guarantors and the Trustee, providing for the issuance of 5.625% Senior Notes due 2024 of the Issuer (the “Notes”);
WHEREAS, upon the terms and subject to the conditions set forth in that certain Consent Solicitation Statement dated October 2, 2017 (as amended and/or supplemented to date, the “Consent Solicitation Statement”), the Issuer solicited the consents of the Holders of the Notes to the amendments to the Indenture described in the Consent Solicitation Statement and set forth in Section 2 of this Supplemental Indenture (the “Proposed Amendments”);
WHEREAS, in accordance with Section 9.02(a) of the Indenture, the approval by written consent of the Holders of at least a majority of the aggregate principal amount of the Notes outstanding as of September 2, 2017 (the “Record Date”), which is the record date fixed by the Issuer in accordance with Section 9.04 of the Indenture, of which Record Date the Trustee has been duly notified in writing by the Issuer in accordance with Section 9.04, is sufficient to approve the aforesaid Proposed Amendments in accordance with the Indenture;
WHEREAS, the Holders of at least a majority of the aggregate principal amount of the Notes outstanding as of the Record Date (the “Requisite Consent”) have delivered consents approving the Proposed Amendments and the execution of this Supplemental Indenture, which such consents have not been withdrawn or revoked;
WHEREAS, pursuant to Section 9.02(a) of the Indenture, the Issuer and the Guarantors desire to execute this Supplemental Indenture in order to give effect to the Proposed Amendments, as provided hereinafter (subject to the conditions set forth in Section 3 below);
WHEREAS, all conditions precedent set forth in the Consent Solicitation Statement and the Indenture to the execution and delivery of this Supplemental Indenture by the Issuer, the Guarantors and the Trustee have been satisfied, and all things necessary have been done to make this Supplemental Indenture, when executed and delivered by the Issuer and the Guarantors, the legal, valid and binding agreement of the Issuer and the Guarantors; and
WHEREAS, the Issuer and the Guarantors have requested that the Trustee execute and deliver this Supplemental Indenture;
NOW, THEREFORE in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties to this Supplemental Indenture hereby agree as follows:
SECTION 1. Definitions. For all purposes of this Supplemental Indenture, except as otherwise herein expressly provided or unless the context otherwise requires: (i) the terms and expressions used herein shall have the same meanings as corresponding terms and expressions used in the Indenture; and (ii) 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.
SECTION 2. Amendments. The Indenture is hereby amended as follows:
(a) The definition of “Change of Control” set forth in Section 1.01 of the Indenture (Definitions) is hereby amended and restated in its entirety as follows:
“Change of Control” means the occurrence of any of the following:
(1) the sale, lease, transfer or other conveyance, in one or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person; or
(2) the Company becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company or any entity of which it is a Subsidiary; provided that so long as the Company is a Subsidiary of Parent, no Person or group shall be deemed to be or become a beneficial owner, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company or any entity of which it is a Subsidiary, as applicable, unless such Person or group shall be or become, directly or indirectly, a beneficial owner of more than 50% of the total voting power of the Voting Stock of Parent.
(b) All references in the Indenture and any Global Note representing the Notes, as amended by Section 2 hereof, to any of the provisions modified as provided herein, or to terms defined in such provisions, shall also be deemed modified in accordance with the terms of this Supplemental Indenture.
SECTION 3. Effectiveness of Proposed Amendments. This Supplemental Indenture shall be effective as a binding agreement upon execution hereof by the Issuer, the Guarantors and the Trustee; provided, however, that the Proposed Amendments set forth in Section 2 hereof shall not become effective and operative until the Issuer’s delivery of an Officers’ Certificate to the Trustee confirming that the Issuer has paid the Consent Fee (as defined in the Consent Solicitation Statement) to the consenting Holders of Notes in accordance with the Consent Solicitation Statement (it being understood the Proposed Amendments shall become immediately and fully effective and operative upon delivery of such notice of payment). If (a) the Consent Fee has not been paid on or prior to the earlier of (i) the date of the consummation of the Re-Domiciliation Transaction (as defined in the Consent Solicitation Statement) and (ii) March 29, 2018, or (b) at any time following the execution of this Supplemental Indenture, the Issuer notifies the Trustee in writing that the Issuer no longer wishes to give effect to the Proposed Amendments and does not intend to pay the Consent Fee at any time, then this Supplemental Indenture shall, from and after, in the case of clause (a) above, the earlier of the dates, and in the case of clause (b) above, the date of the Issuer’s delivery of such notice to the Trustee, become and be null and void ab initio. The Issuer shall be under no obligation to pay the Consent Fee in the event the Issuer no longer wishes to give effect to the Proposed Amendments.
SECTION 4. Ratification of Indenture; Supplemental Indenture Part of Indenture. Except as expressly waived, amended or otherwise modified 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.
SECTION 5. Governing Law. This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York, but without giving effect to applicable principles of conflicts of laws to the extent that the application of the laws of another jurisdiction would be required thereby.
SECTION 6. Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made by the Issuer.
SECTION 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. Delivery of an executed counterpart of a signature page to this Supplemental Indenture by facsimile or other electronic transmission (i.e., a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart thereof.
SECTION 8. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction thereof.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
SENSATA TECHNOLOGIES B.V.,
as the Issuer
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
[Signature Page to Fifth Supplemental Indenture re: 5.625% Senior Notes]
CUSTOM SENSORS & TECHNOLOGIES
US CORPORATION, as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
CUSTOM SENSORS & TECHNOLOGIES
US, LLC , as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
CUSTOM SENSORS & TECHNOLOGIES,
INC., as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
KAVLICO CORPORATION, as
Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
CRYDOM, INC., as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
NEWALL ELECTRONICS, INC., as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
BEI NORTH AMERICA, LLC, as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
[Signature Page to Fifth Supplemental Indenture re: 5.625% Senior Notes]
Signed by Jeffrey Cote (name of director)
for and on behalf of /s/ Jeffrey Cote
CUSTOM SENSORS & TECHNOLOGIES NEWCO, LTD., Director
as Guarantor
[Signature Page to Fifth Supplemental Indenture re: 5.625% Senior Notes]
SENSATA TECHNOLOGIES BULGARIA EOOD (formerly known as Sensor-Nite Industrial EOOD), as Guarantor
By: /s/ Gerrit Ensing
Name: Gerrit Ensing
Title: Director
[Signature Page to Fifth Supplemental Indenture re: 5.625% Senior Notes]
SENSATA TECHNOLOGIES HOLDING, COMPANY US B.V., as Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
SENSATA TECHNOLOGIES HOLLAND B.V., as Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
SENSATA TECHNOLOGIES HOLDING, COMPANY MEXICO B.V., as Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
SENSATA TECHNOLOGIES US COÖPERATIEF U.A., as Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
CDI NETHERLANDS B.V., as Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
SENSOR-NITE NV, as Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
[Signature Page to Fifth Supplemental Indenture re: 5.625% Senior Notes]
[Signature Page to Fifth Supplemental Indenture re: 5.625% Senior Notes]
Signed by Jeffrey Cote (name of director)
for and on behalf of /s/ Jeffrey Cote
SENSATA TECHNOLOGIES UK FINANCING CO. PLC, Director
as Guarantor
[Signature Page to Fifth Supplemental Indenture re: 5.625% Senior Notes]
Signed by Martha Sullivan (name of director)
for and on behalf of /s/ Martha Sullivan
AUGUST UK HOLDCO LIMITED, Director
as Guarantor
Signed by Martha Sullivan (name of director)
for and on behalf of /s/ Martha Sullivan
ST SCHRADER HOLDING COMPANY UK LIMITED, Director
as Guarantor
[Signature Page to Fifth Supplemental Indenture re: 5.625% Senior Notes]
SENSATA TECHNOLOGIES FRANCE S.A.S., as Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: President (Président)
[Signature Page to Fifth Supplemental Indenture re: 5.625% Senior Notes]
AUGUST FRANCE HOLDING COMPANY S.A.S., as Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: President (Président)
[Signature Page to Fifth Supplemental Indenture re: 5.625% Senior Notes]
ST AUGUST LUX COMPANY S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 25,000
R.C.S. Luxembourg: B 192229
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature Page to Fifth Supplemental Indenture re: 5.625% Senior Notes]
ST AUGUST LUX INTERMEDIATE HOLDCO S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 25,000
R.C.S. Luxembourg: B 192214
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature Page to Fifth Supplemental Indenture re: 5.625% Senior Notes]
AUGUST LUX HOLDING COMPANY S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 16,376
R.C.S. Luxembourg: B 167704
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature Page to Fifth Supplemental Indenture re: 5.625% Senior Notes]
AUGUST BRAZIL HOLDING COMPANY S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 16,375
R.C.S. Luxembourg: B 168084
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature Page to Fifth Supplemental Indenture re: 5.625% Senior Notes]
AUGUST LUXUK HOLDING S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 16,375
R.C.S. Luxembourg: B 167757
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature Page to Fifth Supplemental Indenture re: 5.625% Senior Notes]
SENSATA FINANCE IRELAND LIMITED, as
Guarantor
By: /s/ Graeme Thompson
Name: Graeme Thompson
Title: Director
SENSATA FINANCE IRELAND II LIMITED, as Guarantor
By: /s/ Graeme Thompson
Name: Graeme Thompson
Title: Director
[Signature Page to Fifth Supplemental Indenture re: 5.625% Senior Notes]
SENSATA TECHNOLOGIES, INC., as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Chief Operating Officer
SENSATA TECHNOLOGIES U.S., LLC., as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Manager
SENSATA TECHNOLOGIES U.S. II, LLC., as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Manager
STI HOLDCO, INC., as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
SENSATA TECHNOLOGIES BERMUDA LTD., as Guarantor
By: /s/ Steven Reynolds
Name: Steven Reynolds
Title: Director
[Signature Page to Fifth Supplemental Indenture re: 5.625% Senior Notes]
SENSATA TECHNOLOGIES DE MÉXICO, S. DE R.L. DE C.V., as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature Page to Fifth Supplemental Indenture re: 5.625% Senior Notes]
SENSATA TECHNOLOGIES JAPAN LIMITED, as Guarantor
By: /s/ Yann Etienvre
Name: Yann Etienvre
Title: Director
[Signature Page to Fifth Supplemental Indenture re: 5.625% Senior Notes]
SENSATA TECHNOLOGIES MALAYSIA, as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature Page to Fifth Supplemental Indenture re: 5.625% Senior Notes]
THE BANK OF NEW YORK MELLON, as Trustee, Registrar and Paying Agent
By: /s/ Teresa Wyszomierski
Name: Teresa Wyszomierski
Title: Vice President
[Signature Page to Fifth Supplemental Indenture re: 5.625% Senior Notes]
SIXTH SUPPLEMENTAL INDENTURE
SIXTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of May 24, 2021, among GIGAVAC, LLC (the “New US Guarantor”), a subsidiary of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Issuer”), Sensata Technologies Malta Ltd (the “New Maltese Guarantor”), a subsidiary of the Issuer, Sensata Malta Holding Ltd (the “New Maltese Holdco Guarantor” and, together with the New Maltese Guarantor and the New US Guarantor, the “New Guarantors”), a subsidiary of the Issuer, the Issuer, the existing Guarantors and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Issuer and certain of its Subsidiaries have heretofore executed and delivered to the Trustee an indenture, dated as of October 14, 2014 (as amended, supplemented or otherwise modified, the “Indenture”), providing for the issuance by the Issuer of 5.625% Senior Notes due 2024 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantors shall execute and deliver to the Trustee a supplemental indenture pursuant to which each New Guarantor shall unconditionally Guarantee all of the Issuer’s obligations under the Notes and the Indenture on the terms and conditions set forth herein and therein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Issuer and the existing Guarantors are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, each New Guarantor, the Issuer, the existing Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture, and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Issuer, any parent entity of the Issuer or any Subsidiary, as such, will have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to each New Guarantor shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. JURISDICTION; WAIVER OF JURY TRIAL. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantee of each New Guarantor or this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
GIGAVAC, LLC, as the New US Guarantor
By: Sensata Technologies, Inc., its sole member
By: /s/ Frank E. DeVita
Name: Frank E. DeVita
Title: Treasurer
SENSATA TECHNOLOGIES MALTA LTD, as the New Maltese Guarantor
By: /s/ Shannon M. Votava, Esq.
Name: Shannon M. Votava, Esq.
Title: Director
SENSATA MALTA HOLDING LTD, as the New Maltese Subsidiary Guarantor
By: /s/ Shannon M. Votava, Esq.
Name: Shannon M. Votava, Esq.
Title: Director
SENSATA TECHNOLOGIES B.V., as the Issuer
By: /s/ Gerrit H. Ensing
Name: Gerrit H. Ensing
Title: Director
[Signature Page to Supplemental Indenture - 2024 Notes]
SENSATA TECHNOLOGIES, INC.
BEI NORTH AMERICA LLC
CRYDOM, INC.
CUSTOM SENSORS & TECHNOLOGIES, INC.
CUSTOM SENSORS & TECHNOLOGIES US CORPORATION
CUSTOM SENSORS & TECHNOLOGIES US LLC
KAVLICO CORPORATION
NEWALL ELECTRONICS INC., each as a
Guarantor
By: /s/ Paul Vasington
Name: Paul Vasington
Title: EVP and Chief Financial Officer
SENSATA TECHNOLOGIES US, LLC
SENSATA TECHNOLOGIES US II, LLC, each as a Guarantor
By: /s/ Paul Vasington
Name: Paul Vasington
Title: Manager
STI HOLDCO, INC., as a Guarantor
By: /s/ Paul Vasington
Name: Paul Vasington
Title: Director
[Signature Page to Supplemental Indenture - 2024 Notes]
CDI NETHERLANDS B.V.
SENSATA TECHNOLOGIES HOLDING COMPANY MEXICO, B.V.
SENSATA TECHNOLOGIES HOLLAND B.V., each as a Guarantor
By: /s/ Gerrit H. Ensing
Name: Gerrit H. Ensing
Title: Director
SENSATA TECHNOLOGIES BULGARIA EOOD, as a Guarantor
By: /s/ Gerrit H. Ensing
Name: Gerrit H. Ensing
Title: Director
[Signature Page to Supplemental Indenture - 2024 Notes]
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita |
AUGUST UK HOLDCO LIMITED, as a Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita |
CUSTOM SENSORS & TECHNOLOGIES NEWCO LTD., as a Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita |
SENSATA TECHNOLOGIES UK FINANCING CO. PLC, as a Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita |
ST SCHRADER HOLDING COMPANY UK LIMITED, as a Guarantor | Director |
[Signature Page to Supplemental Indenture - 2024 Notes]
SENSATA TECHNOLOGIES BERMUDA
LTD., as a Guarantor
By: /s/ George Verras
Name: George Verras
Title: Director
[Signature Page to Supplemental Indenture - 2024 Notes]
SENSATA TECHNOLOGIES JAPAN
LIMITED, as a Guarantor
By: /s/ Song Changhwan
Name: Song Changhwan
Title: Representative Director
[Signature Page to Supplemental Indenture - 2024 Notes]
AUGUST BRAZIL HOLDLNG COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 168084,
as a Guarantor
By: /s/ Joseph Barberia
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST BRAZIL HOLDLNG COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 168084,
as a Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager (Class B)
[Signature Page to Supplemental Indenture - 2024 Notes]
AUGUST LUX HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167704,
as a Guarantor
By: /s/ Joseph Barberia
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST LUX HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167704,
as a Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager (Class B)
[Signature Page to Supplemental Indenture - 2024 Notes]
AUGUST LUXUK HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167757.
as a Guarantor
By: /s/ Joseph Barberia
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST LUXUK HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167757.
as a Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager (Class B)
[Signature Page to Supplemental Indenture - 2024 Notes]
ST AUGUST LUX COMPANY S.À.R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192229,
as a Guarantor
By: /s/ Joseph Barberia
Name: Joseph Barberia
Title: Manager (Class A)
ST AUGUST LUX COMPANY S.À.R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192229,
as a Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager (Class B)
[Signature Page to Supplemental Indenture - 2024 Notes]
ST AUGUST LUX INTERMEDIATE HOLDCO
S.A.R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192214,
as a Guarantor
By: /s/ Joseph Barberia
Name: Joseph Barberia
Title: Manager (Class A)
ST AUGUST LUX INTERMEDIATE HOLDCO
S.A.R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192214,
as a Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager (Class B)
[Signature Page to Supplemental Indenture - 2024 Notes]
THE BANK OF NEW YORK MELLON, as Trustee
By: /s/ Wanda Camacho
Name: Wanda Camacho
Title: Vice President
[Signature Page to Supplemental Indenture - 2024 Notes]
SEVENTH SUPPLEMENTAL INDENTURE
SEVENTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of October 24, 2022, among Dynapower Company LLC, a Delaware limited liability company (“Dynapower”) and an indirect subsidiary of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Issuer”), Xirgo Technologies, LLC, a Delaware limited liability company (“Xirgo”) and an indirect subsidiary of the Issuer, SmartWitness USA, LLC, an Illinois limited liability company (“SmartWitness” and, together with Dynapower and Xirgo, the “New Guarantors” and each a “New Guarantor”) and an indirect subsidiary of the Issuer, the Issuer, the existing Guarantors and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Issuer and certain of its Subsidiaries have heretofore executed and delivered to the Trustee an indenture, dated as of October 14, 2014 (as amended, supplemented or otherwise modified, the “Indenture”), providing for the issuance by the Issuer of 5.625% Senior Notes due 2024 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantors shall execute and deliver to the Trustee a supplemental indenture pursuant to which each New Guarantor shall unconditionally Guarantee all of the Issuer’s obligations under the Notes and the Indenture on the terms and conditions set forth herein and therein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Issuer and the existing Guarantors are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, each New Guarantor, the Issuer, the existing Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture, and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Issuer, any parent entity of the Issuer or any Subsidiary, as such, will have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Indenture or the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to each New Guarantor shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. JURISDICTION; WAIVER OF JURY TRIAL. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantee of each New Guarantor or this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
DYNAPOWER COMPANY LLC, as a New Guarantor
By: DP Acquisition Corporation, its sole member
By: /s/ Frank E. DeVita__________________
Name: Frank E. DeVita
Title: Treasurer
XIRGO TECHNOLOGIES, LLC, as a New Guarantor
By: Xirgo Technologies Intermediate Holdings,
LLC, its sole member
By: Sensata Technologies, Inc., its managing
member
By: /s/ Frank E. DeVita________________
Name: Frank E. DeVita
Title: Treasurer
SMARTWITNESS USA, LLC, as a New Guarantor
By: SmartWitness Holdings, Inc., its sole member
By: /s/ Frank E. DeVita__________________
Name: Frank E. DeVita
Title: Treasurer
SENSATA TECHNOLOGIES B.V., as the Issuer
By: /s/ Maria G. Freve____________________
Name: Maria G. Freve
Title: Director
[Signature Page to Supplemental Indenture - 2024 Notes]
STI HOLDCO, INC.
SENSATA TECHNOLOGIES, INC.
BEI NORTH AMERICA, LLC
CRYDOM, INC.
CUSTOM SENSORS & TECHNOLOGIES, INC.
CUSTOM SENSORS & TECHNOLOGIES US CORPORATION
CUSTOM SENSORS & TECHNOLOGIES US LLC
GIGAVAC, LLC
KAVLICO CORPORATION
NEWALL ELECTRONICS INC., each as a Guarantor
By: /s/ Frank E. DeVita__________________
Name: Frank E. DeVita
Title: Treasurer
[Signature Page to Supplemental Indenture - 2024 Notes]
CDI NETHERLANDS B.V.
SENSATA TECHNOLOGIES HOLDING COMPANY MEXICO, B.V.
SENSATA TECHNOLOGIES HOLLAND B.V., each as a Guarantor
By: /s/ Maria G. Freve__________________
Name: Maria G. Freve
Title: Director
[Signature Page to Supplemental Indenture - 2024 Notes]
SENSATA TECHNOLOGIES BULGARIA EOOD, as a Guarantor
By: /s/ Frank E. DeVita__________________
Name: Frank E. DeVita
Title: Director
[Signature Page to Supplemental Indenture - 2024 Notes]
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita_________________ |
AUGUST UK HOLDCO LIMITED, as a Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita_________________ |
CUSTOM SENSORS & TECHNOLOGIES NEWCO LTD., as a Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita_________________ |
SENSATA TECHNOLOGIES UK FINANCING CO. PLC, as a Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita_________________ |
ST SCHRADER HOLDING COMPANY UK LIMITED, as a Guarantor | Director |
[Signature Page to Supplemental Indenture - 2024 Notes]
AUGUST BRAZIL HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 168084,
as a Guarantor
By: /s/ Joseph Barberia__________________
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST BRAZIL HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 168084,
as a Guarantor
By: /s/ Dylan Davies__________________
Name: Dylan Davies
Title: Manager (Class B)
[Signature Page to Supplemental Indenture - 2024 Notes]
AUGUST LUX HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167704,
as a Guarantor
By: /s/ Joseph Barberia__________________
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST LUX HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167704,
as a Guarantor
By: /s/ Dylan Davies__________________
Name: Dylan Davies
Title: Manager (Class B)
[Signature Page to Supplemental Indenture - 2024 Notes]
AUGUST LUXUK HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167757,
as a Guarantor
By: /s/ Joseph Barberia__________________
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST LUXUK HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167757,
as a Guarantor
By: /s/ Dylan Davies__________________
Name: Dylan Davies
Title: Manager (Class B)
[Signature Page to Supplemental Indenture - 2024 Notes]
ST AUGUST LUX COMPANY S.À R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192229,
as a Guarantor
By: /s/ Joseph Barberia__________________
Name: Joseph Barberia
Title: Manager (Class A)
ST AUGUST LUX COMPANY S.À R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192229,
as a Guarantor
By: /s/ Dylan Davies__________________
Name: Dylan Davies
Title: Manager (Class B)
[Signature Page to Supplemental Indenture - 2024 Notes]
ST AUGUST LUX INTERMEDIATE HOLDCO S.À R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192214,
as a Guarantor
By: /s/ Joseph Barberia__________________
Name: Joseph Barberia
Title: Manager (Class A)
ST AUGUST LUX INTERMEDIATE HOLDCO S.À R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192214,
as a Guarantor
By: /s/ Dylan Davies__________________
Name: Dylan Davies
Title: Manager (Class B)
[Signature Page to Supplemental Indenture - 2024 Notes]
SENSATA TECHNOLOGIES JAPAN LIMITED, as a Guarantor
By: /s/ Maria Gonzalez Freve______________
Name: Maria Gonzalez Freve
Title: Representative Director
[Signature Page to Supplemental Indenture - 2024 Notes]
SENSATA MALTA HOLDING LTD.
SENSATA TECHNOLOGIES MALTA LTD., each as a Guarantor
By: /s/ Maria G. Freve__________________
Name: Maria G. Freve
Title: Director
[Signature Page to Supplemental Indenture - 2024 Notes]
THE BANK OF NEW YORK MELLON, as Trustee
By: /s/ Teresa H. Wyszomierksi____________
Name: Teresa H. Wyszomierski
Title: Vice President
[Signature Page to Supplemental Indenture - 2024 Notes]
EXECUTION VERSION
SENSATA TECHNOLOGIES B.V.
AND
THE GUARANTORS NAMED HEREIN
$700,000,000
5.000% SENIOR NOTES DUE 2025
____________________________________
INDENTURE
Dated as of March 26, 2015
____________________________________
THE BANK OF NEW YORK MELLON
Trustee
____________________________________
| | | | | | | | |
| ARTICLE 1 |
| DEFINITIONS AND INCORPORATION BY REFERENCE |
| Section 1.01 | Definitions | 1 |
| Section 1.02 | Other Definitions | 18 |
| Section 1.03 | Incorporation by Reference of Certain Provisions and Defined Terms in the Trust Indenture Act | 18 |
| Section 1.04 | Rules of Construction | 19 |
| | |
| ARTICLE 2 |
| THE NOTES |
| Section 2.01 | Form and Dating | 19 |
| Section 2.02 | Execution and Authentication | 20 |
| Section 2.03 | Agents | 21 |
| Section 2.04 | Paying Agent to Hold Money in Trust | 21 |
| Section 2.05 | Holder Lists | 21 |
| Section 2.06 | Transfer and Exchange | 22 |
| Section 2.07 | Replacement Notes | 32 |
| Section 2.08 | Outstanding Notes | 33 |
| Section 2.09 | Treasury Notes | 33 |
| Section 2.10 | Temporary Notes | 34 |
| Section 2.11 | Cancellation | 34 |
| Section 2.12 | Defaulted Interest | 34 |
| Section 2.13 | CUSIP Numbers and ISIN Numbers | 34 |
| | |
| ARTICLE 3 |
| REDEMPTION AND PREPAYMENT |
| Section 3.01 | Notices to Trustee | 34 |
| Section 3.02 | Notice of Optional Redemption | 35 |
| Section 3.03 | Effect of Notice of Redemption | 35 |
| Section 3.04 | Deposit of Redemption Price | 36 |
| Section 3.05 | Notes Redeemed in Part | 36 |
| Section 3.06 | Optional Redemption | 36 |
| Section 3.07 | Mandatory Redemption | 38 |
| | |
| | | | | | | | |
| ARTICLE 4 |
| COVENANTS |
| Section 4.01 | Payment of Notes | 38 |
| Section 4.02 | Maintenance of Office or Agency | 41 |
| Section 4.03 | Reports | 42 |
| Section 4.04 | Compliance Certificate | 44 |
| Section 4.05 | Corporate Existence | 44 |
| Section 4.06 | [Intentionally Omitted] | 44 |
| Section 4.07 | [Intentionally Omitted] | 44 |
| Section 4.08 | Limitation on Sale and Lease-Back Transactions | 44 |
| Section 4.09 | Limitation on Subsidiary Debt | 45 |
| Section 4.10 | [Intentionally Omitted] | 47 |
| Section 4.11 | [Intentionally Omitted] | 47 |
| Section 4.12 | Limitation on Liens | 47 |
| Section 4.13 | Business Activities | 47 |
| Section 4.14 | Payment of Taxes and Other Claims | 48 |
| Section 4.15 | Offer to Repurchase upon Change of Control | 48 |
| Section 4.16 | Payments for Consent | 49 |
| Section 4.17 | Additional Guarantees | 49 |
| Section 4.18 | [Intentionally Omitted] | 49 |
| Section 4.19 | Suspension of Guarantees Upon Change in Ratings | 50 |
| Section 4.20 | Compliance with Laws | 50 |
| Section 4.21 | Waiver of Stay, Extension or Usury Laws | 50 |
| | |
| ARTICLE 5 |
| 51 |
| Section 5.01 | Merger, Consolidation, or Sale of Assets | 56 |
| | |
| ARTICLE 6 |
| DEFAULTS AND REMEDIES |
| Section 6.01 | Events of Default | 52 |
| Section 6.02 | Acceleration | 53 |
| Section 6.03 | Other Remedies | 54 |
| Section 6.04 | Waiver of Past Defaults | 55 |
| Section 6.05 | Control by Majority | 55 |
| Section 6.06 | Limitation on Suits | 55 |
| Section 6.07 | Rights of Holders of Notes to Receive Payment | 55 |
| Section 6.08 | Collection Suit by Trustee | 56 |
| Section 6.09 | Trustee May File Proofs of Claim | 56 |
| Section 6.10 | Priorities | 56 |
| Section 6.11 | Undertaking for Costs | 56 |
| | | | | | | | |
| ARTICLE 7 |
| TRUSTEE |
| Section 7.01 | Duties of Trustee | 57 |
| Section 7.02 | Rights of Trustee | 58 |
| Section 7.03 | Individual Rights of Trustee | 59 |
| Section 7.04 | Trustee's Disclaimer | 59 |
| Section 7.05 | Notice of Defaults | 59 |
| Section 7.06 | [Intentionally Omitted] | 59 |
| Section 7.07 | Compensation and Indemnity | 59 |
| Section 7.08 | Replacement of Trustee | 60 |
| Section 7.09 | Successor Trustee by Merger, Etc | 61 |
| Section 7.10 | Eligibility; Disqualification | 61 |
| Section 7.11 | Preferential Collection of Claims Against the Company | 61 |
| | |
| ARTICLE 8 |
| LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
| Section 8.01 | Option to Effect Legal Defeasance or Covenant Defeasance | 61 |
| Section 8.02 | Legal Defeasance and Discharge | 61 |
| Section 8.03 | Covenant Defeasance | 62 |
| Section 8.04 | Conditions to Legal or Covenant Defeasance | 62 |
| Section 8.05 | Deposited Money and U.S. Government Securities to Be Held in Trust; Other Miscellaneous Provisions. | 64 |
| Section 8.06 | Repayment to Company | 64 |
| Section 8.07 | Reinstatement | 64 |
| | |
| ARTICLE 9 |
| AMENDMENT, SUPPLEMENT AND WAIVER |
| Section 9.01 | Without Consent of Holders of Notes | 65 |
| Section 9.02 | With Consent of Holders of Notes | 65 |
| Section 9.03 | [Intentionally Omitted] | 66 |
| Section 9.04 | Revocation and Effect of Consents | 66 |
| Section 9.05 | Notation on or Exchange of Notes | 67 |
| Section 9.06 | Trustee to Sign Amendments, Etc | 67 |
| | |
| ARTICLE 10 |
| GUARANTEES |
| Section 10.01 | Guarantee | 67 |
| Section 10.02 | Limitation on Guarantor Liability | 69 |
| Section 10.03 | Execution and Delivery of Guarantee | 70 |
| Section 10.04 | Guarantors May Consolidate, Etc., on Certain Terms | 71 |
| Section 10.05 | Releases | 71 |
| | | | | | | | |
| ARTICLE 11 |
| SATISFACTION AND DISCHARGE |
| Section 11.01 | Satisfaction and Discharge | 71 |
| Section 11.02 | Application of Trust Money | 72 |
| | |
| ARTICLE 12 |
| MISCELLANEOUS |
| Section 12.01 | [Intentionally Omitted] | 72 |
| Section 12.02 | Notices | 73 |
| Section 12.03 | Communication by Holders of Notes with Other Holders of Notes | 74 |
| Section 12.04 | Certificate and Opinion as to Conditions Precedent | 74 |
| Section 12.05 | Statements Required in Certificate or Opinion | 74 |
| Section 12.06 | Rules by Trustee and Agents | 75 |
| Section 12.07 | No Personal Liability of Directors, Officers, Employees and Stockholders | 75 |
| Section 12.08 | Governing Law | 75 |
| Section 12.09 | Jurisdiction; Waiver of Jury Trial | 75 |
| Section 12.10 | Waiver of Immunities | 75 |
| Section 12.11 | Currency Rate Indemnity | 75 |
| Section 12.12 | Successors | 76 |
| Section 12.13 | Severability | 76 |
| Section 12.14 | Counterpart Originals | 76 |
| Section 12.15 | Table of Contents, Headings, Etc | 76 |
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF NOTATION OF GUARANTEE
Exhibit E FORM OF SUPPLEMENTAL INDENTURE
INDENTURE dated as of March 26, 2015 among Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Company”), the Guarantors (as defined herein) and The Bank of New York Mellon, a New York banking corporation, as Trustee.
The Company, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined herein) of (a) the $700,000,000 aggregate principal amount of the Company’s 5.000% Senior Notes due 2025 (the “Initial Notes”) and (b) any Additional Notes (as defined herein) that may be issued after the date hereof (all such securities in clauses (a) and (b) being referred to collectively as the “Notes”):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
“144A Global Note” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.
“2019 Notes” means the $700.0 million aggregate principal amount of 6.5% Senior Notes due 2019 issued by the Company and Guaranteed by certain of the Company’s Subsidiaries.
“2023 Notes” means the $500.0 million aggregate principal amount of 4.875% Senior Notes due 2023 issued by the Company and Guaranteed by certain of the Company’s Subsidiaries.
“2024 Notes” means the $400.0 million aggregate principal amount of 5.625% Senior Notes due 2024 issued by the Company and Guaranteed by certain of the Company’s Subsidiaries.
“Additional Notes” means additional Notes (other than the Initial Notes) issued under this Indenture after the Issue Date in accordance with Sections 2.02 and 4.09 hereof, as part of the same series as the Initial Notes.
“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” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), 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.
“Agent” means any Registrar, co-registrar, Paying Agent, transfer agent, additional paying agent or other agent appointed hereunder.
“Aggregate Debt” means the sum of the following as of the date of determination: (1) the sum of the then outstanding aggregate principal amount of (a) the Indebtedness of the Company and its Subsidiaries incurred after the Issue Date and secured by Liens not permitted by Section 4.12(a) and (b) Indebtedness of the Company and its Subsidiaries secured by a Lien under the Credit Agreement that is outstanding on the Issue Date less the amount of such Indebtedness that has subsequently been repaid; (2) the then outstanding aggregate principal amount of all Subsidiary Debt incurred after the Issue Date and not permitted by Section 4.09(b); provided that
any such Subsidiary Debt will be excluded from this clause (2) to the extent that such Subsidiary Debt is included in clause (1) or (3) of this definition; and (3) the then existing Attributable Liens of the Company and its Subsidiaries in respect of sale and lease-back transactions entered into after the Issue Date pursuant to Section 4.08(b); provided that any such Attributable Liens will be excluded from this clause (3) to the extent that the Indebtedness relating thereto is included in clause (1) or (2) of this definition.
“Applicable Premium” means, with respect to any Note on any redemption date and as calculated by the Company, the greater of:
(1)1.0% of the then outstanding principal amount of such Note; and
(2)the excess, if any, of (a) the present value at such date of redemption of the sum of the remaining scheduled payments of principal and interest thereon (not including any portion of such payments of interest accrued to the date of redemption) discounted to such date of redemption on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) computed using a discount rate equal to the Treasury Rate plus 50 basis points, over (b) the then outstanding principal amount of such Note.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the relevant Depositary that apply to such transfer or exchange.
“Attributable Liens” means in connection with a sale and lease-back transaction the lesser of: (1) the fair market value of the assets subject to such transaction, as determined in good faith by the Company’s Board of Directors; and (2) the present value (discounted at a rate of 10% per annum compounded monthly) of the obligations of the lessee for rental payments during the shorter of the term of the related lease or the period through the first date on which the Company may terminate the lease.
“Bankruptcy Law” means (i) Title 11, United States Code or any similar U.S. federal or state law for the relief of debtors or the administration or liquidation of debtors’ estates for the benefit of their creditors, (ii) the Dutch Bankruptcy Law or any similar Dutch federal or state law for the relief of debtors or the administration or liquidation of debtors’ estates for the benefit of their creditors and (iii) any other similar federal or local law for the relief of debtors or the administration or liquidation of debtors’ estates for the benefit of their creditors in any other applicable jurisdiction, now or hereinafter in effect.
“Beneficial Owner” or “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” will 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,” “Beneficially Owned” and “Beneficial Ownership” 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 having only one general partner, the board of directors of the general partner of the partnership;
(3)with respect to a limited liability company, the conseil de gerance, the conseil d’administration, the managing member or members or any controlling committee of managing members or other governing body thereof; and
(4)with respect to any other Person, the board or committee of such Person serving a similar function.
“Business Day” means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York are authorized or required by law to close.
“Capital Lease” 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 such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP (except for temporary treatment of construction related expenditures under EITF 97 10, “The Effect of Lessee Involvement in Asset Construction,” which will ultimately be treated as operating leases upon a sale leaseback transaction).
“Capital Stock” means:
(1)in the case of a corporation, capital stock, shares or share capital;
(2)in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock;
(3)in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
(4)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.
“Cash Equivalents” means any of the following:
(1)readily marketable obligations issued or directly and fully guaranteed or insured by the United States, any state, commonwealth or territory of the United States or any agency or instrumentality thereof, having (i) one of the three highest ratings from either Moody’s or S&P and (ii) maturities of not more than two years from the date of acquisition thereof; provided that the full faith and credit of the United States is pledged in support thereof;
(2)time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) is a lender under the Credit Agreement or (ii)(A) is organized under the laws of the United States, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof, the District of Columbia or the Commonwealth of Puerto Rico and is a member of the Federal Reserve System and (B) has combined capital and surplus of at least $250.0 million (any such bank in the foregoing clauses (i) or (ii) being an “Approved Domestic Bank”), in each case with maturities of not more than one year from the date of acquisition thereof;
(3)commercial paper and variable or fixed rate notes issued by an Approved Domestic Bank (or by the parent company thereof) or any variable rate note issued by, or guaranteed by a domestic corporation rated “A-2” (or the equivalent thereof) or better by S&P or “P-2” (or the equivalent thereof) or better by Moody’s, in each case with maturities of not more than one year from the date of acquisition thereof;
(4)repurchase agreements entered into by any Person with a bank or trust company or recognized securities dealer (including any lender under the Credit Agreement), in each case, having capital and surplus in excess of $250.0 million for
direct obligations issued by or fully guaranteed or insured by the government or any agency or instrumentality of the United States;
(5)investments, classified in accordance with GAAP as current assets of the Company or any of its Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions having capital of at least $250.0 million and the portfolios of which are limited such that 95% of such investments are of the character, quality and maturity described in clauses (1), (2), (3), or (4) of this definition;
(6)solely with respect to the Company and any Foreign Subsidiary, non-U.S. dollar denominated (i) certificates of deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Person maintains its chief executive office and principal place of business, provided such country is a member of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least “A-2” or the equivalent thereof or from Moody’s is at least “P-2” or the equivalent thereof (any such bank being an “Approved Foreign Bank”) and maturing within one year of the date of acquisition and (ii) equivalents of demand deposit accounts which are maintained with an Approved Foreign Bank; and
(7)readily marketable obligations issued or directly and fully guaranteed or insured by the government or any agency or instrumentality of the Netherlands or any member nation of the European Union whose legal tender is the euro and which are denominated in euro or any other foreign currency comparable in credit quality and tenor to those referred to above and customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Subsidiary organized in such jurisdiction, having (i) one of the three highest ratings from either Moody’s or S&P and (ii) maturities of not more than one year from the date of acquisition thereof; provided that the full faith and credit of the Netherlands or any such member nation of the European Union is pledged in support thereof.
“Change of Control” means the occurrence of any of the following:
(1)the sale, lease, transfer or other conveyance, in one or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person; or
(2)the Company becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company or any entity of which it is a Subsidiary.
“Clearstream” means Clearstream Banking, S.A. and any successor thereto.
“Code” means the United States Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to the
Code are to the Code, as in effect on the Issue Date, and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.
“Commission” means the U.S. Securities and Exchange Commission.
“Company” means Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands.
“Consolidated Depreciation and Amortization Expense” means, with respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees, and other non-cash charges (excluding any non-cash item that represents an accrual or reserve for a cash expenditure for a future period) of such Person and its Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.
“Consolidated Interest Expense” means, with respect to any Person for any period, the sum, without duplication, of: (a) consolidated interest expense of such Person and its Subsidiaries for such period (including amortization of original issue discount, non-cash interest payments (other than imputed interest as a result of purchase accounting), commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing, the interest component of Capital Leases, net payments (if any) pursuant to interest rate Hedging Obligations (any net receipts pursuant to such interest rate Hedging Obligations shall be included as a reduction to Consolidated Interest Expense), but excluding amortization of deferred financing fees or expensing of any bridge or other financing fees, and any loss on the early extinguishment of Indebtedness, in each case, relating to the Specified Financings) and (b) consolidated capitalized interest of such Person and its Subsidiaries for such period, whether paid or accrued and less (c) interest income actually received or receivable in cash for such period; provided, however, that Securitization Fees shall be deemed not to constitute Consolidated Interest Expense.
“Consolidated Net Income” means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided, however, that
(1)any net after-tax extraordinary, unusual or nonrecurring gains or losses (including, without limitation, severance, relocation, signing bonus, transition and other restructuring costs and litigation settlements or losses) shall be excluded;
(2)the Net Income for such period shall not include the cumulative effect of a change in accounting principle(s) during such period;
(3)any net after-tax gains or losses attributable to asset dispositions other than in the ordinary course of business (as determined in good faith by the Board of Directors of the Company) and any gain (or loss) realized upon the sale or other disposition of any Capital Stock of any Person shall be excluded;
(4)the Net Income for such period of any Person that is not a Subsidiary of such Person, or that is accounted for by the equity method of accounting, shall be excluded; provided that, to the extent not already included, Consolidated Net Income of such Person shall be (A) increased by the amount of dividends or other distributions that are actually paid in cash (or to the extent converted into cash) to the referent Person or a Subsidiary thereof in respect of such period and (B) decreased by the amount of any equity of the Company in a net loss of any such Person for such period to the extent the Company has funded such net loss;
(5)[reserved];
(6)non-cash compensation charges, including any such charges arising from stock options, restricted stock grants or other equity-incentive programs shall be excluded;
(7)any net after-tax gains or losses (less all fees and expenses or charges relating thereto) attributable to the early extinguishment or conversion of Indebtedness or Hedging Obligations shall be excluded;
(8)unrealized gains and losses from Hedging Obligations or “embedded derivatives” that require the same accounting treatment as Hedging Obligations shall be excluded;
(9)the effect of any non-cash items resulting from any amortization, write-up, write-down, write-off or impairment of assets (including intangible assets, goodwill and deferred financing costs but excluding inventory) in connection with any future acquisition, merger, consolidation or similar transaction or any other non-cash impairment charges incurred subsequent to the Issue Date resulting from the application of SFAS Nos. 142 and 144 (excluding any such non-cash item to the extent that it represents an accrual of or reserve for cash expenditures in any future period except to the extent such item is subsequently reversed) shall be excluded;
(10)any purchase accounting adjustments (including the impact of writing up inventory or deferred revenue at fair value), amortization, impairments, write-offs, or non-cash charges with respect to purchase accounting with respect to any acquisition, merger, consolidation, disposition or similar transaction, shall be excluded;
(11)any reasonable expenses or charges incurred in connection with any Equity Offering, investment, acquisition, recapitalization or Indebtedness permitted to be incurred under this Indenture (in each case whether or not consummated) or the offering of the Notes, shall be excluded;
(12)the amount of any restructuring charges or reserves (which, for the avoidance of doubt, shall include retention, severance, systems establishment cost, excess pension charges, contract termination costs, including future lease commitments, and costs to consolidate facilities and relocate employees), shall be excluded; and
(13)any gains or losses relating to foreign currency transactions, including those relating to mark-to-market of Indebtedness denominated in foreign currencies resulting from the application of GAAP, including pursuant to FAS No. 52, shall be excluded.
To the extent not already included in Consolidated Net Income of such Person and its Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include the amount of proceeds received from business interruption insurance and reimbursements of any expenses or charges that are covered by indemnification or other reimbursement provisions in connection with any sale, conveyance, transfer or disposition of assets permitted under this Indenture.
“Contingent Obligations” means, with respect to any Person, any obligation of such Person Guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary
obligor, or (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.
“Corporate Trust Office of the Trustee” will be the address of the Trustee specified in Section 12.02 hereof or such other address as to which the Trustee may give notice to the Company.
“Credit Agreement” means that certain credit agreement, dated as of May 12, 2011, among the Company, the “Parent” (as defined therein), the “U.S. Borrower” (as defined therein), Morgan Stanley Senior Funding, Inc., as Administrative Agent, and the financial institutions from time to time party thereto, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, as amended, restated, supplemented, modified, renewed, refunded, replaced (whether at maturity or thereafter) or refinanced from time to time in one or more agreements or indentures (in each case with the same or new lenders or institutional investors), including any agreement adding or changing the borrower or guarantor or extending the maturity thereof or otherwise restructuring all or any portion of the Indebtedness thereunder or increasing the amount loaned or issued thereunder or altering the maturity thereof.
“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.
“Definitive Note” means a certificated non-Global Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Increases and Decreases in the Global Note” attached thereto.
“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.01(d) hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture, including DTC, Euroclear and/or Clearstream.
“Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person which, by its terms (or by the terms of any security into which it is convertible or for which it is putable or exchangeable), or upon the happening of any event, matures or is mandatorily redeemable (other than as a result of a change of control or asset sale), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than as a result of a change of control or asset sale), in whole or in part, in each case prior to the date that is 91 days after the earlier of the final maturity date of the Notes or the date the Notes are no longer outstanding; provided, however that if such Capital Stock is issued to any plan for the benefit of employees of the Company or any of its Subsidiaries or transferred by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Company or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
“DTC” means The Depository Trust Company.
“EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication,
(1)the provision for taxes based on income or profits, plus franchise or similar taxes, of such Person for such period deducted in computing Consolidated Net Income, plus
(2)Consolidated Interest Expense of such Person for such period to the extent the same was deducted in calculating such Consolidated Net Income, plus
(3)Consolidated Depreciation and Amortization Expense of such Person for such period to the extent such depreciation and amortization were deducted in computing Consolidated Net Income, plus
(4)any other non-cash charges, expenses or losses (including any impairment charges and the impact of purchase accounting, including, but not limited to, the amortization of inventory step-up) reducing Consolidated Net Income for such period (excluding any such charge that represents an accrual or reserve for a cash expenditure for a future period), plus
(5)any net gain or loss resulting from Hedging Obligations relating to currency exchange risk, plus
(6)the amount of any expense for minority interests consisting of Subsidiary income attributable to minority equity interests of third parties in any Guarantor deducted (and not added back) in such period in calculating Consolidated Net Income, plus
(7)Securitization Fees to the extent deducted in calculating Consolidated Net Income for such period, plus
(8)any net after-tax income or loss from discontinued operations and any net after-tax gains or losses on disposal of discontinued operations, less
(9)non-cash items increasing Consolidated Net Income of such Person for such period (excluding any items which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges made in any prior period).
If acquisitions, dispositions, mergers or consolidations (as determined in accordance with GAAP) have been made by the Company or any Subsidiary of the Company during the Measurement Period or subsequent to such Measurement Period and on or prior to or simultaneously with the date on which EBITDA is calculated (the “Calculation Date”), then EBITDA shall be calculated on a pro forma basis assuming that all such acquisitions, dispositions, mergers or consolidations had occurred on the first day of such Measurement Period.
For purposes of this definition, whenever pro forma effect is to be given to an acquisition, disposition, merger or consolidation and the amount of income or earnings relating thereto, the pro forma calculations shall be determined in good faith by a responsible financial or accounting Officer of the Company and shall comply with the requirements of Rule 11-02 of Regulation S-X promulgated by the Commission, except that such pro forma calculations may include operating expense reductions for such period resulting from the transaction which is being given pro forma effect that (A) have been realized or (B) for which the steps necessary for realization have been taken (or are taken concurrently with such transaction) or (C) for which the steps necessary for realization are reasonably expected to be taken within the twelve month period following such transaction and, in each case, including, but not limited to, (a) reduction in personnel expenses, (b) reduction of costs related to administrative functions, (c) reduction of costs related to leased or owned properties and (d) reductions from the consolidation of operations and streamlining of corporate overhead; provided that, in each case, such adjustments are set forth in a certificate signed by a responsible financial or accounting Officer of the Company which states (i) the amount of such adjustment or adjustments and (ii) in the case of items (B) or (C) above, that such adjustment or adjustments are based on the reasonable good faith beliefs of the Officer executing such certificate at the time of such execution.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“Equity Offering” means any public or private sale of common stock or Preferred Stock of the Company or any of its direct or indirect parent companies (excluding Disqualified Stock of the Company), other than (i) public offerings with respect to common stock of the Company or of any of its direct or indirect parent companies registered on Form S-4 or Form S-8 or (ii) an issuance to any Subsidiary of the Company.
“Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system, and any successor thereto.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Foreign Subsidiary” means, with respect to any Person, any Subsidiary of such Person that is not organized or existing under the laws of the United States, any state thereof or the District of Columbia.
“GAAP” means generally accepted accounting principles in the United States which are in effect on the Issue Date, except with respect to any reports or financial information required to be delivered pursuant to Section 4.03, which shall be prepared in accordance with GAAP as in effect on the date thereof, except as provided below. At any time after the adoption of IFRS by the Company for its financial statements and reports for all financial reporting purposes, the Company may elect to apply IFRS for all purposes of this Indenture, in lieu of GAAP, and, upon any such election, references herein to GAAP shall be construed to mean IFRS as in effect from time to time; provided that (1) any such election once made shall be irrevocable and shall only be made once, except as may be necessary to comply with applicable law, rule or regulation, (2) all financial statements and reports required to be provided after such election pursuant to this Indenture shall be prepared on the basis of IFRS and (3) from and after such election, all ratios, computations and other determinations (A) based on GAAP contained in this Indenture shall be computed in conformity with IFRS and (B) in this Indenture that require the application of GAAP for periods that include fiscal quarters ended prior to the Company’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP. The Company shall give notice of any election to the Trustee and the Holders of Notes within 15 days of such election. For the avoidance of doubt, solely making an election (without any other action) referred to in this definition will not be treated as an incurrence of Indebtedness. For purposes of this description, the term “consolidated” with respect to any Person means such Person consolidated with its Subsidiaries.
“Global Note Legend” means the legend set forth in Section 2.06(g)(ii) hereof, which is required to be placed on all Global Notes issued under this Indenture.
“Global Notes” means the 144A Global Note and the Regulation S Global Note.
“Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness or other obligations. When used as a verb, “Guarantee” shall have a corresponding meaning.
“Guarantor” means any Person that provides a Note Guarantee, either on the Issue Date or after the Issue Date in accordance with the terms of this Indenture; provided that upon the release and discharge of such Person from its Note Guarantee in accordance with this Indenture, such Person shall cease to be a Guarantor.
“Hedging Obligations” means, with respect to any Person, the obligations of such Person under:
(1)currency exchange, interest rate or commodity swap agreements, currency exchange, interest rate or commodity cap agreements and currency exchange, interest rate or commodity collar agreements; and
(2)other agreements or arrangements designed to manage, hedge or protect such Person with respect to fluctuations in currency exchange, interest rates or commodity prices.
“Holder” means a Person in whose name a Note is registered in the register maintained by the Registrar.
“IFRS” means the International Financial Reporting Standards as issued by the International Accounting Standards Board.
“Indebtedness” means, with respect to any Person,
(a)any indebtedness (including principal and premium) of such Person, whether or not contingent:
(i)in respect of borrowed money,
(ii)evidenced by bonds, notes, debentures or similar instruments or letters of credit (or, without duplication, reimbursement agreements in respect thereof),
(iii)representing the deferred and unpaid balance of the purchase price of any property (including Capital Leases), except (a) any such balance that constitutes a trade payable or similar obligation to a trade creditor in each case accrued in the ordinary course of business and (b) any earn-out obligations, until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP, or
(iv)representing any interest rate Hedging Obligations,
if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon the balance sheet (excluding the notes thereto) of such Person prepared in accordance with GAAP;
(b)Disqualified Stock of such Person;
(c)to the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on the Indebtedness of another Person (other than by endorsement of negotiable instruments for collection in the ordinary course of business); and
(d)to the extent not otherwise included, Indebtedness of another Person secured by a Lien on any asset owned by such Person (whether or not such Indebtedness is assumed by such Person);
provided, however, that notwithstanding the foregoing, Indebtedness shall be deemed not to include (a) Contingent Obligations incurred in the normal course of business and not in respect of borrowed money, (b) obligations under or in respect of Securitization Financings, or (c) items that would appear as a liability on a balance sheet prepared in accordance with GAAP as a result of the application of EITF 97-10, “The Effect of Lessee Involvement in Asset Construction.”
“Indenture” means this Indenture, as amended or supplemented from time to time.
“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.
“Institutional Accredited Investor” means an institution that is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not also QIBs.
“Investment Grade” means (1) BBB — (with a stable outlook) or above, in the case of S&P (or its equivalent under any successor Rating Categories of S&P) and Baa3 (with a stable outlook) or above, in the case of Moody’s (or its equivalent under any successor Rating Categories of Moody’s), or (2) the equivalent to the foregoing in respect of the Rating Categories of any other Rating Agencies.
“Issue Date” means March 26, 2015.
“Joint Venture” means, with respect to any Person, any partnership, corporation or other entity in which up to and including 50% of the Equity Interests is owned, directly or indirectly, by such Person or one or more of its Subsidiaries. A Joint Venture shall not be treated as a Subsidiary.
“Legended Regulation S Global Note” means a Global Note in the form of Exhibit A bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount at maturity of the Notes initially sold in reliance on Rule 903 of Regulation S.
“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, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to constitute a Lien.
“Measurement Period” means, at any date of determination, the most recently completed four fiscal quarters of the Company for which financial statements have been filed with the Commission, or in the event that, at any date of determination, neither the Company nor Parent is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the most recently completed four fiscal quarters of the Company for which internal financial statements are available.
“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
“Net Income” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends or accretion of any Preferred Stock.
“Non-US. Person” means a Person who is not a U.S. Person.
“Note Guarantee” means any Guarantee of the obligations of the Company under this Indenture and the Notes issued hereunder by a Guarantor in accordance with the provisions of this Indenture.
“Notes” has the meaning assigned to it in the preamble to this Indenture. The Initial Notes and any Additional Notes shall be treated as a single class for all purposes under this Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes.
“Offering Memorandum” means that certain final offering memorandum, dated March 19, 2015, relating to the offering and sale of the Initial Notes.
“Officer” means the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, the Chief Accounting Officer, any Executive Vice President, Senior
Vice President or Vice President, the Treasurer or the Secretary, director or managing director, or any equivalent of the foregoing, or any Person duly authorized to act for on behalf, of the Company or any Guarantor, as applicable.
“Officers’ Certificate” means a certificate signed on behalf of the Company or any Guarantor, as applicable, by two Officers of the Company or such Guarantor, as applicable, one of whom is the Chairman of the Board of Directors, the Chief Executive Officer, the Chief Financial Officer, the Treasurer or the Chief Accounting Officer, or the equivalent, of the Company or such Guarantor, as applicable.
“Opinion of Counsel” means an opinion from legal counsel that meets the requirements of Section 12.05 hereof. The counsel may be an employee of or counsel to the Company or any Subsidiary of the Company.
“Parent” means Sensata Technologies Holding N.V., a public limited liability company incorporated under the laws of the Netherlands or any successor or other entity that serves as a parent company to the Company.
“Participant” means, with respect to the Depositary, a Person who has an account with the Depositary.
“Permitted Bank Indebtedness” means any Indebtedness of the Company or any Subsidiary of the Company pursuant to one or more credit facilities with banks or other lenders providing for revolving credit loans or term loans or the issuance of letters of credit or bankers’ acceptances or the like and Guarantees of such Indebtedness by the Company or any Subsidiary of the Company; provided that the aggregate principal amount of such Permitted Bank Indebtedness at any time outstanding does not exceed $250.0 million.
“Permitted Business” means the business and any services, activities or businesses incidental, or directly related or similar to, any line of business engaged in by the Company and its Subsidiaries as of the Issue Date or any business activity that is a reasonable extension, development or expansion thereof or ancillary thereto.
“Permitted Liens” means:
(1)Liens securing Permitted Bank Indebtedness;
(2)Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations;
(3)(a) Liens given to secure the payment of the purchase price or other acquisition, installation or construction costs incurred in connection with the acquisition (including acquisition through merger or consolidation) of any Principal Property, including Capital Lease transactions in connection with any such acquisition and including any purchase money Liens, and (b) Liens existing on any Principal Property at the time of acquisition (including acquisition through merger or consolidation) thereof or at the time of acquisition by the Company or any Subsidiary of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (a), the Liens shall be given within 12 months after such acquisition and shall attach solely to the Principal Property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof;
(4)Liens in favor of the Company or a Subsidiary of the Company;
(5)Liens on any Principal Property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such Principal Property;
(6)Liens imposed by law, such as carriers’, warehousemen’s and mechanic’s Liens and other similar Liens arising in the ordinary course of business, Liens in connection with legal proceedings and Liens arising solely by virtue of any statutory or common law provision relating to banker’s Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution;
(7)Liens for taxes, assessments or other governmental charges not yet overdue for a period of more than 30 days or subject to penalties for non-payment or which are being contested in good faith by appropriate proceedings;
(8)Liens to secure the performance of bids, trade or commercial contracts, government contracts, purchase, construction, sales and servicing contracts (including utility contracts), leases, statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business and to secure letters of credit, Guarantees, bonds or other sureties given in connection with the foregoing or in connection with workers’ compensation, unemployment insurance or other types of social security or similar laws and regulations;
(9)licenses of intellectual property of the Company and its Subsidiaries granted in the ordinary course of business;
(10)Liens to secure Indebtedness incurred by Foreign Subsidiaries pursuant to Section 4.09(b)(10);
(11)Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligation in respect of banker’s acceptances issued or created in the ordinary course of business for the account of such Person to facilitate the purchase, shipment, or storage of such inventory or other goods;
(12)Liens to secure Qualified Securitization Financings;
(13)Liens on stock, partnership or other equity interests in any Joint Venture of the Company or any of its Subsidiaries or in any Subsidiary of the Company that owns an equity interest in a Joint Venture to secure Indebtedness contributed or advanced solely to that Joint Venture; provided that, in each case, the Indebtedness secured by such Lien is not secured by a Lien on any other property of the Company or any Subsidiary of the Company;
(14)Liens and deposits securing netting services, business credit card programs, overdraft protection and other treasury, depository and cash management services or incurred in connection with any automated clearing-house transfers of funds or other fund transfer or payment processing services;
(15)Liens on, and consisting of, deposits made by the Company to discharge or defease the Notes and this Indenture, the 2019 Notes, the 2023 Notes, the 2024 Notes or any other Indebtedness;
(16)Liens on insurance policies and the proceeds thereof incurred in connection with the financing of insurance premiums;
(17)easements, rights of way, minor encroachments, protrusions, municipal and zoning and building ordinances and similar charges, encumbrances,
title defects or other irregularities, governmental restrictions on the use of property or conduct of business, and Liens in favor of governmental authorities and public utilities, that do not materially interfere with the ordinary course of business of the Company and its Subsidiaries, taken as a whole; or
(18)any extension, renewal, substitution or replacement (or successive extensions, renewals, substitutions or replacements), in whole or in part, of any Lien referred to in the preceding clauses (1) through (17), inclusive.
“Person” means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization, limited liability company or government or other entity.
”Preferred Stock” means any Equity Interest with preferential rights of payment of dividends upon liquidation, dissolution or winding up.
“Principal Property” means, with respect to any Person, all of such Person’s interests in any kind of property or asset (including the capital stock in and other securities of any other Person), except such as the Board of Directors by resolution determines in good faith (taking into account, among other things, the materiality of such property to the business, financial condition and earnings of the Company and its Subsidiaries taken as a whole) not to be material to the business of the Company and its Subsidiaries, taken as a whole.
“Private Placement Legend” means the legend set forth in Section 2.06(g)(i) hereof to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Qualified Securitization Financing” means any Securitization Financing of a Securitization Subsidiary that meets the following conditions: (i) the Board of Directors of the Company shall have determined in good faith that such Qualified Securitization Financing (including financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to the Company and the Securitization Subsidiary, (ii) all sales of Securitization Assets and related assets to the Securitization Subsidiary are made at fair market value (as determined in good faith by the Company) and (iii) the financing terms, covenants, termination events and other provisions thereof shall be market terms (as determined in good faith by the Company) and may include Standard Securitization Undertakings. The grant of a security interest in any Securitization Assets of the Company or any of its Subsidiaries (other than a Securitization Subsidiary) to secure Indebtedness under the Credit Agreement and any Credit Agreement Refinancing Indebtedness (as defined in the Credit Agreement) with respect thereto shall not be deemed a Qualified Securitization Financing.
“Rating Agency” means (1) S&P and Moody’s or (2) if S&P or Moody’s or both of them are not making ratings publicly available, a nationally recognized statistical rating organization within the meaning of Section 3(62) under the Exchange Act, as the case may be, selected by the Company in its discretion, which will be substituted for S&P or Moody’s or both, as the case may be.
“Rating Category” means (1) with respect to S&P, any of the following categories (any of which may include a “+” or a “-“: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor categories), (2) with respect to Moody’s, any of the following categories: Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories), and (3) the equivalent of any such categories of S&P or Moody’s used by another Rating Agency, if applicable.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Global Note” means a Legended Regulation S Global Note or an Unlegended Regulation S Global Note, as appropriate.
“Responsible Officer,” when used with respect to the Trustee, means any officer within the Corporate Trust Department of the Trustee (or any successor group of the Trustee) 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, in each case having direct responsibility for the administration of this Indenture.
“Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.
“Restricted Global Note” means a Global Note bearing the Private Placement Legend.
“Restricted Period” means the 40-day distribution compliance period as defined in Regulation S, which period shall terminate (a) on May 5, 2015 with respect to the Initial Notes and (b) on such date as set forth in the applicable supplemental indenture entered into pursuant to Section 9.01(viii) with respect to any Additional Notes.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“Rule 903” means Rule 903 promulgated under the Securities Act.
“Rule 904” means Rule 904 promulgated under the Securities Act.
“S&P” means Standard & Poor’s Ratings Services, a division of McGraw-Hill Financial, Inc., and any successor to its rating agency business.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Securitization Assets” means any accounts receivable or other revenue streams subject to a Qualified Securitization Financing.
“Securitization Fees” means reasonable distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Securitization Subsidiary in connection with any Qualified Securitization Financing.
“Securitization Financing” means any transaction or series of transactions that may be entered into by the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries may sell, convey or otherwise transfer to (a) a Securitization Subsidiary (in the case of a transfer by the Company or any of its Subsidiaries) and (b) any other Person (in the case of a transfer by a Securitization Subsidiary), or may grant a security interest in, any Securitization Assets (whether now existing or arising in the future) of the Company or any of its Subsidiaries, and any assets related thereto including, without limitation, all collateral securing such Securitization Assets, all contracts and all guarantees or other obligations in respect of such Securitization Assets, proceeds of such Securitization Assets and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving Securitization Assets and any Hedging Obligations entered into by the Company or any such Subsidiary in connection with such Securitization Assets.
“Securitization Repurchase Obligation” means any obligation of a seller of Securitization Assets in a Qualified Securitization Financing to repurchase Securitization Assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including, without limitation, as a result of a receivable or portion thereof becoming subject to any asserted
defense, dispute, off set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
“Securitization Subsidiary” means any Subsidiary of the Company (or another Person) formed for the purposes of engaging in one or more Qualified Securitization Financings and other activities reasonably related thereto.
“Senior Management” means the Chief Executive Officer or the Chief Financial Officer, or the equivalent of the foregoing, of the Company or Parent.
“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 (except, with respect to each test contained therein, substituting 20 percent instead of 10 percent as the applicable threshold).
“Specified Financings” means the entry into the Credit Agreement and the borrowings made thereunder, the 2019 Notes, the 2023 Notes, the 2024 Notes and the offering of the Notes.
“Standard Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by the Company or any Subsidiary of the Company which the Company has determined in good faith to be customary in a Securitization Financing, including, without limitation, those relating to the servicing of the assets of a Securitization Subsidiary, it being understood that any Securitization Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking.
“Stated Maturity,” when used with respect to any Note or any installment of principal thereof or interest thereon, means the date specified in such Note as the fixed date on which the principal of such Note or such installment of principal or interest is due and payable.
“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 that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and
(2)any partnership, joint venture, limited liability company or similar entity of which (x) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise and (y) such Person or any Wholly Owned Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
“TIA” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).
“Treasury Rate” means, as of the applicable redemption date, the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) which has become publicly available at least two Business Days prior to the date fixed for prepayment (or, if such Statistical Release is no longer published, any publicly available source for similar market data)) most nearly equal to the then remaining term of the Notes; provided, however, that if the then remaining term of the Notes is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Treasury Rate will be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the then
remaining term of the Notes is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.
“Trustee” means The Bank of New York Mellon, a New York banking corporation, until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
“Unlegended Regulation S Global Note” means a permanent Global Note in the form of Exhibit A bearing the Global Note Legend, deposited with or on behalf of and registered in the name of the Depositary or its nominee and issued upon expiration of the Restricted Period.
“Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required to bear the Private Placement Legend.
”Unrestricted Global Note” means a Global Note that does not bear and is not required to bear the Private Placement Legend.
“U.S. Government Securities” means securities that are
(a)direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged; or
(b)obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of the issuers thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government Securities or a specific payment of principal of or interest on any such U.S. Government Securities held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Securities or the specific payment of principal of or interest on the U.S. Government Securities evidenced by such depository receipt.
“U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act.
“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time ordinarily entitled to vote in the election of the Board of Directors of such Person.
“Wholly Owned Subsidiary” of any Person means a Subsidiary of such Person, 100% of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares and shares issued to foreign nationals under applicable law) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of such Person or by such Person and one or more Wholly Owned Subsidiaries of such Person.
Section 1.02 Other Definitions.
| | | | | |
| Term | Defined in Section |
| “Additional Amounts” | 4.01 |
| “Additional Taxing Jurisdiction” | 4.01 |
| “Applicable Law” | 4.01 |
| “Authentication Order” | 2.02 |
| “Change of Control Offer” | 4.15 |
| “Change of Control Payment” | 4.15 |
| “Change of Control Payment Date” | 4.15 |
| “Change in Tax Law” | 3.07 |
| “Covenant Defeasance” | 8.03 |
| “Event of Default” | 6.01 |
| “French Guarantor” | 10.02 |
| “Initial Default” | 6.01 |
| “Legal Defeasance” | 8.02 |
| “Luxembourg Guarantor” | 10.02 |
| “Minimum Dollar Denomination” | 2.01 |
| “Notation of Guarantee” | 10.03 |
| “Paying Agent” | 2.03 |
| “Registrar” | 2.03 |
| “Relevant Taxing Jurisdiction” | 4.01 |
| “Reversion Date” | 4.19 |
| “Subsidiary Debt” | 4.09 |
| “Successor Company” | 5.01 |
| “Suspended Provisions” | 4.19 |
| “Suspension Date” | 4.19 |
| “Suspension Period” | 4.19 |
| “Taxes” | 4.01 |
Section 1.03 Incorporation by Reference of Certain Provisions and Defined Terms in the Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision 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 and the Note Guarantees; and
“obligor” on the indenture securities means the Company and the Guarantors, respectively, and any successor obligor upon the indenture securities, respectively.
All other terms used in this Indenture that are defined by the TIA, defined by the TIA by reference to another statute or defined by the Commission rule under the TIA have the meanings so assigned to them by such definitions.
This Indenture has not been qualified under the TIA and no provision of the TIA shall be deemed a part of this Indenture except as specifically set forth herein.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(i)a term has the meaning assigned to it;
(ii)an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(iii)“or” is not exclusive;
(iv)words in the singular include the plural, and words in the plural include the singular;
(v)“will” shall be interpreted to express a command;
(vi)provisions apply to successive events and transactions; and
(vii)references to sections of or rules under the Securities Act will be deemed to include substitute, replacement of successor sections or rules adopted by the Commission from time to time.
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating.
(a)General. The Notes and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The Notes shall be in minimum denominations of $2,000 (the “Minimum Dollar Denomination”) and any integral multiple of $1,000 in excess thereof.
The terms and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and the Company, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
(b)Rule 144A Global Notes. Notes offered and sold in reliance on Rule 144A shall be issued initially in the form of a 144A Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for the Depositary and registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated Participants in the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided. Each Global Note will represent such of the outstanding Notes as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee or the custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.
(c)Regulation S Global Notes. Notes offered and sold in reliance on Regulation S shall be issued initially in the form of the Legended Regulation S Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for the Depositary, and registered in the name of the Depositary or the nominee of the Depositary for the accounts of the designated Participants in the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided. Following the termination of the Restricted Period, beneficial interests in a Legended Regulation S Global Note shall be exchanged for beneficial interests in an Unlegended Regulation S Global Note pursuant to Section 2.06 and the Applicable Procedures. Simultaneously with the authentication of Unlegended Regulation S Global Notes, the Trustee shall cancel such Legended Regulation S Global Note. The aggregate principal amount of the Regulation S Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee, as the case may be, in connection with transfers of interest as hereinafter provided.
(d)Depositary. The Company has initially appointed DTC to act as Depositary with respect to the Global Notes.
(e)Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream will be applicable to transfers of beneficial interests in the Regulation S Global Notes that are held by Euroclear or Clearstream as Participants in DTC.
(f)None of the Trustee or any Agent shall have any responsibility or obligation to any beneficial owner of an interest in a Global Note, a member of, or a Participant or Indirect Participant in, the Depositary or other Person, with respect to the accuracy of the records of the Depositary or its nominee or of any Participant, Indirect Participant or member thereof, with respect to any ownership interest in the Global Notes or with respect to the delivery to any Participant, Indirect Participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the Applicable Procedures of the Depositary. The Trustee and each Agent may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, Participants, Indirect Participants and any beneficial owners.
Section 2.02 Execution and Authentication.
At least one Officer must sign the Notes for the Company by manual or facsimile signature, which may be delivered by .pdf attachment to an email or by other electronic means.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note will nevertheless be valid.
A Note will not be valid until authenticated by the manual signature of the Trustee. The signature will be conclusive evidence that the Note has been authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Company signed by two Officers of the Company (an “Authentication Order”), authenticate Notes for original issue that may be validly issued under this Indenture, including any Additional Notes. The aggregate principal amount of Notes outstanding at any time may not exceed the aggregate principal
amount of Notes authorized for issuance by the Company pursuant to one or more Authentication Orders, except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Company.
Section 2.03 Agents.
The Company will maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar will keep a register of the Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company will notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company may remove any Registrar or Paying Agent upon written notice to such Registrar or Paying Agent and to the Trustee; provided, however, that no such removal shall become effective until (i) if applicable, acceptance of an appointment by a successor as evidenced by an appropriate agreement entered into by the Company and such successor Registrar or Paying Agent, as the case may be, and delivered to the Trustee or (ii) notification to the Trustee that the Trustee shall serve as Registrar or Paying Agent until the appointment of a successor in accordance with clause (i) above. The Registrar or Paying Agent may resign at any time upon written notice to the Company and the Trustee; provided, however, that the Trustee may resign as Paying Agent or Registrar only if the Trustee also resigns as Trustee in accordance with Section 7.08.
The Company initially appoints the Trustee to act as the Registrar and Paying Agent with respect to the Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Company will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium or interest on the Notes, and will notify the Trustee in writing of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by such Paying Agent. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) will have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee will serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee will preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company will furnish or cause the Registrar to furnish to the Trustee at least seven Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of
such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes and the Company shall otherwise comply with TIA § 312(a).
Section 2.06 Transfer and Exchange.
(a)Transfer and Exchange of Global Notes. A Global Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the Company for Definitive Notes if:
(A)The Depositary (1) notifies the Company that it is unwilling or unable to continue as Depositary for the Global Notes or (2) has ceased to be a clearing agency registered under the Exchange Act and the Company thereupon fails to appoint a successor Depositary within 120 Business Days;
(B)the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of such Definitive Notes in exchange for beneficial interest in the Global Notes; or
(C)there shall have occurred and be continuing a Default or an Event of Default with respect to the Notes.
Upon the occurrence of either of the preceding events in (A), (B) or (C) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a), however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (d).
(b)Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes will be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also will require compliance with either subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(i)Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend; provided, however, that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Legended Regulation S Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person. Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(i).
(ii)All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(i) above, the transferor of such beneficial interest must deliver to the Registrar either:
(A)both (1) and (2):
(1)a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged; and
(2)instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or
(B) both (1) and (2):
(1)a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and
(2)instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (B)(1) above,
provided that in no event shall Definitive Notes be issued upon the transfer or exchange of beneficial interests in the Legended Regulation S Global Note prior to the expiration of the Restricted Period and the receipt by the Registrar of a certificate from the transferor stating that the transfer complies with Rule 903 and Rule 904 of the Securities Act.
Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Notes pursuant to Section 2.06(h) hereof.
(iii)Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.06(b)(ii) above and the Registrar receives the following:
(A)if the transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; and
(B)if the transferee will take delivery in the form of a beneficial interest in the Legended Regulation S Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof.
(iv)Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof
for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.06(b)(ii) above and the Registrar receives the following:
(1)if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or
(2)if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Company so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Company to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
If any such transfer is effected at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to subparagraph (iv) above.
(v)Transfer and Exchange of Beneficial Interests in an Unrestricted Global Note for Beneficial Interests in a Restricted Global Note. Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.
(c)Transfer and Exchange of Beneficial Interests for Definitive Notes.
(i)Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation:
(A)if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;
(B)if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
(C)if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule
904, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;
(D)if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E)if such beneficial interest is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3)(d) thereof, if applicable;
(F)if such beneficial interest is being transferred to the Company or any of its Subsidiaries, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G)if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Company shall execute and the Trustee shall authenticate upon receipt of an Authentication Order in accordance with Section 2.02 hereof and deliver to the Person designated in the instructions a Restricted Definitive Note in the appropriate principal amount. Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Restricted Definitive Notes to the Persons in whose names such Notes are so registered. Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.
(ii)Beneficial Interests in Legended Regulation S Global Note to Definitive Notes. Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a beneficial interest in the Legended Regulation S Global Note may not be exchanged for a Definitive Note or transferred to a Person who takes delivery thereof in the form of a Definitive Note prior to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar of a certificate from the transferor stating (x) that the transfer complies with Rule 903 and Rule 904 of the Securities Act; or (y) that the transfer is made pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.
(iii)Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if the Registrar receives the following:
(1)if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or
(2)if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Company so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Company to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(iv)Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof, the Trustee will cause the aggregate principal amount of the Unrestricted Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Company will execute and the Trustee will authenticate upon receipt of an Authentication Order in accordance with Section 2.02 hereof and deliver to the Person designated in the instructions an Unrestricted Definitive Note in the appropriate principal amount. Any Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) will be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest requests through instructions to the Registrar from or through the Depositary and the Participant or Indirect Participant. The Trustee will deliver such Unrestricted Definitive Notes to the Persons in whose names such Notes are so registered. Any Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) will not bear the Private Placement Legend.
(d)Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i)Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:
(A)if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;
(B)if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
(C)if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;
(D)if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E)if such Restricted Definitive Note is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3)(d) thereof, if applicable;
(F)if such Restricted Definitive Note is being transferred to the Company or any of its Subsidiaries, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G)if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee will cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global Note, and in the case of clause (C) above, the Regulation S Global Note.
(ii)Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if the Registrar receives the following:
(1)if the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or
(2)if the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Company so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Company to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of this Section 2.06(d)(ii), the Trustee will cancel the Restricted Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.
(iii)Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Unrestricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraphs (ii) or (iii) above at a time when an Unrestricted Global Note has not yet been issued, the Company will issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Unrestricted Definitive Notes so transferred.
(e)Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Company duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder must provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).
(i)Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of a Person or Persons who takes delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:
(A)if the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;
(B)if the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and
(C)if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable.
(ii)Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if the Registrar receives the following:
(1)if the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate
from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or
(2)if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Company so requests, an Opinion of Counsel in form reasonably acceptable to the Company to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(iii)Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.
(f)[Intentionally Omitted]
(g)Legends. The following legends will appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.
(i)Private Placement Legend.
(A)Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:
“THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN “INSTITUTIONAL ACCREDITED INVESTOR”), (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) UNDER THE SECURITIES ACT AFTER THE ORIGINAL ISSUANCE OF THESE NOTES, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO SENSATA TECHNOLOGIES B.V. OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 903 OR RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER IS ANNEXED TO THE INDENTURE AND CAN BE OBTAINED FROM THE TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES O LESS THAN $100,000 AN OPINION OF COUNSEL ACCEPTABLE TO SENSATA TECHNOLOGIES B.V. THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED TO IN RULE 144 UNDER THE SECURITIES ACT AFTER THE ORIGINAL ISSUANCE OF THESE NOTES, THE HOLDER MUST DELIVER THE CERTIFICATE OF TRANSFER RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND SENSATA TECHNOLOGIES B.V. SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS SENSATA TECHNOLOGIES B.V. MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
THIS NOTE MAY NOT BE SOLD, TRANSFERRED OR DELIVERED TO ANYONE ANYWHERE IN THE WORLD OTHER THAN TO QUALIFIED INVESTORS WITHIN THE MEANING OF THE PROSPECTIVE DIRECTIVE (2003/71/EC AND AMENDMENTS THERETO, INCLUDING 2010/73/EU) (“QUALIFIED INVESTORS”).
EACH HOLDER OF NOTES, BY PURCHASING THE NOTES, WILL BE DEEMED TO HAVE REPRESENTED AND AGREED FOR THE BENEFIT OF SENSATA TECHNOLOGIES B.V. THAT (1) SUCH HOLDER IS A QUALIFIED INVESTOR AND IS ACQUIRING SUCH NOTES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INVESTOR, THAT (2) SUCH NOTES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO ANYONE ANYWHERE IN THE WORLD OTHER THAN TO A QUALIFIED INVESTOR ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INVESTOR AND THAT (3) THE HOLDER WILL PROVIDE NOTICE OF THE TRANSFER RESTRICTIONS DESCRIBED HEREIN TO ANY SUBSEQUENT TRANSFEREE.”
(B)Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii) or (e)(iii) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) will not bear the Private Placement Legend.
(ii)Global Note Legend.
Each Global Note will bear a legend in substantially the following form:
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY
MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE RIGHTS ATTACHING TO THIS GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).”
(h)Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note will be reduced accordingly and an endorsement will be made on such Global Note by the Trustee, to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note will be increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
(i)General Provisions Relating to Transfers and Exchanges.
(i)To permit registrations of transfers and exchanges, the Company will execute and the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof
(ii)No service charge will be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 4.15 and 9.04 hereof).
(iii)The Registrar will not be required to register the transfer of or exchange of any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
(iv)All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes will be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(v)Neither the Registrar nor the Company will be required:
(A)to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day the Company gives notice of redemption of the Notes under Section 3.03 hereof or makes a Change of Control Offer pursuant to Section 4.15 hereof and ending at the close of business on the day notice is given or the Change of Control Offer is made, as applicable;
(B)to register the transfer of or to exchange any Note selected for redemption in whole or in part or subject to purchase in a Change of Control Offer, except the unredeemed or unpurchased portion of any Note being redeemed or purchased in part; or
(C)in the case of a redemption or a Change of Control Payment Date occurring after a record date but on or before the corresponding interest payment date, register the transfer or exchange of any Note on or after the record date and before the date of redemption or Change of Control Payment Date, as applicable.
(vi)Subject to the rights of Holders as of the relevant record date to receive interest on the corresponding interest payment date and Section 2.12, prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.
(vii)The Trustee will authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02 hereof.
(viii)[reserved]
(ix)Neither the Trustee nor any Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any tax or securities laws with respect to any restrictions on transfer imposed under this Indenture or under applicable law (including any transfers between or among Participants, Indirect Participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company will issue and the Trustee, upon receipt of an Authentication Order, will authenticate a
replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Company, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company may charge for their expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and will be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the Trustee except (i) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (ii) Notes for the payment or redemption of which money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside, segregated and held in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Notes; provided that, if such Notes are to be redeemed prior to the maturity thereof, written notice of such redemption has been duly given pursuant to this Indenture, or provision satisfactory to the Trustee shall have been made for giving such notice; and (iii) Notes in substitution for which other Notes shall have been authenticated and delivered, or which shall have been paid, pursuant to the terms of this Indenture (except with respect to any such Note as to which proof satisfactory to the Trustee is presented that such Note is held by a Person in whose hands such Note is a legal, valid and binding obligation of the Company). Except as set forth in Section 2.08 hereof, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note; however, Notes held by the Company or a Subsidiary of the Company shall not be deemed to be outstanding for purposes of Section 9.02 hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee and the Registrar receive proof satisfactory to each of them that the replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay all principal, premium and accrued interest with respect to the outstanding Notes payable on that date and the Paying Agent is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture then on and after that date such Notes will be deemed to be no longer outstanding and will cease to accrue interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in any direction, request, waiver or consent in the exercise of any discretion, power or authority (whether contained in this Indenture or vested by operation of law) which the Trustee is required, expressly or impliedly, to exercise in or by reference to the interests of the Holders or any of them, Notes owned by the Company or any Guarantor, or by an Affiliate of the Company or any Guarantor, will be considered as though not outstanding, except that for the purposes of determining whether the Trustee will be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee knows are so owned will be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, will authenticate temporary Notes. Temporary Notes will be substantially in the form of certificated Notes but may have variations that the Company considers appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without unreasonable delay, the Company will prepare and the Trustee will authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the benefits of this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent will forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and will dispose of such canceled Notes in its customary manner (subject to the record retention requirement of the Exchange Act). Certification of the destruction of all canceled Notes will be delivered to the Company. The Company may not issue new Notes to replace Notes that it has redeemed, purchased or paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it will pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Company will notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Company will fix or cause to be fixed each such special record date and payment date; provided that no such special record date may be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) will give or cause to be given to Holders in accordance with Section 12.02 a notice prepared by the Company that states the special record date, the related payment date and the amount of such interest to be paid.
Section 2.13 CUSIP Numbers and ISIN Numbers.
The Company in issuing the Notes may use “CUSIP” numbers and “ISINs” (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers and “ISINs” in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers, either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers or “ISINs.”
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at least five days prior to the date notice of redemption is to be delivered to the Holders of the Notes in accordance with
Section 3.03 (unless a shorter time is acceptable to the Trustee), an Officers’ Certificate setting forth:
(i)the clause of this Indenture pursuant to which the redemption shall occur;
(ii)the redemption date;
(iii)the principal amount of Notes to be redeemed;
(iv)the redemption price;
(v)the applicable CUSIP numbers; and
(vi)a statement that the conditions precedent to such redemption have been satisfied.
Section 3.02 Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed at any time, the Trustee will select Notes for redemption as follows:
(vii)if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the Notes are listed; or
(viii)if the Notes are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem fair and appropriate,
in each case, subject to the procedures of DTC as applicable.
In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or purchased will be selected, unless otherwise provided herein, not less than 30 days nor more than 60 days prior to the redemption date by the Trustee from the outstanding Notes not previously called for redemption or otherwise in accordance with the procedures of DTC, as applicable.
The Trustee will promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed. No Notes in principal amounts equal to or less than the Minimum Dollar Denomination can be redeemed in part.
Section 3.03 Notice of Optional Redemption.
(a)Except for redemption pursuant to Section 3.07(e), notices of optional redemption will be given at least 30 but not more than 60 days before the redemption date to each Holder of Notes to be redeemed in accordance with Section 12.02, except that redemption notices may be given more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture.
(b)If any Note is to be optionally redeemed, the notice of redemption that relates to that Note will state:
(i)the clause of this Indenture pursuant to which the redemption shall occur;
(ii)the redemption date;
(iii)the principal amount of Notes to be redeemed;
(iv)the redemption price;
(v)applicable CUSIP numbers;
(vi)a statement that the conditions precedent to such redemption have been satisfied.
(c)At the Company’s written request delivered at least 35 days prior to the redemption date unless the Trustee consents to a shorter period, the Trustee will give the notice of optional redemption in the Company’s name and at its expense; in such event, the Company shall provide the Trustee with the information required by this Section 3.03.
(d)If any optional redemption or notice is subject to satisfaction of one or more conditions precedent, the notice shall state that, in the Company’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied on or prior to one Business Day prior to the redemption date, or by the redemption date so delayed.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is given in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price and interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date unless the Company defaults in the payment of the redemption price or accrued interest or any Additional Amounts.
Section 3.04 Deposit of Redemption Price.
On or prior to 11:00 a.m., New York City time, on the Business Day immediately preceding the redemption date, the Company will deposit with the Trustee or with the Paying Agent, money sufficient to pay the redemption price of and accrued interest on all Notes to be redeemed on the redemption date. The Trustee or the Paying Agent will promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption price of, and accrued interest on, all Notes to be redeemed following the redemption date.
If the Company complies with the provisions of the preceding paragraph, on and after the redemption date, interest will cease to accrue on the Notes or the portions of Notes called for redemption. If a 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 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 is not so paid upon surrender for redemption because of the failure of the Company to comply with the preceding paragraph, interest 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 4.01 hereof.
Section 3.05 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company will issue and, upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered.
Section 3.06 Optional Redemption.
(a)[Intentionally Omitted]
(b)Except pursuant to Section 3.07(d) or (e), the Notes will not be optionally redeemable by the Company; provided, however, the Company may acquire the Notes by means other than an optional redemption.
(c)[Intentionally Omitted]
(d)At any time and from time to time, upon not less than 30 nor more than 60 days’ notice to the Holders, the Company may redeem some or all of the Notes at a price calculated by the Company of 100% of the principal amount of the Notes redeemed plus the Applicable Premium, plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of Holders of record on the record date to receive interest due on the interest payment date).
(e)The Company may, at its option, redeem the Notes, in whole but not in part, at any time upon not less than 15 days’ nor more than 30 days’ notice to the Holders (which notice shall be irrevocable and given in accordance with Section 3.03), at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the redemption date, premium, if any, and all Additional Amounts, if any, then due and which will become due on the date of redemption as a result of the redemption or otherwise, if the Company determines in good faith that the Company or any Guarantor is, or on the next date on which any amount would be payable in respect of the Notes, would be obligated to pay Additional Amounts in respect of the Notes pursuant to the terms and conditions thereof, which the Company or such Guarantor, as the case may be, cannot avoid by the use of reasonable measures available to it (including, without limitation, making payment through a Paying Agent located in another jurisdiction), as a result of:
(1)any change in, or amendment to, the laws or treaties (or any regulations, official guidance or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction affecting taxation which becomes effective on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction that arises after the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under this Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder); or
(2)any change in the official application, administration, or interpretation of the laws, treaties, regulations, official guidance or rulings of any Relevant Taxing Jurisdiction (including a holding, judgment, or order by a court of competent jurisdiction), on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction that arises after the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under this Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder) (each of the foregoing clauses (1) and (2), a “Change in Tax Law”).
Notwithstanding the foregoing, the Company may not redeem the Notes under this provision if a Relevant Taxing Jurisdiction changes under this Indenture and the Company is obligated to pay Additional Amounts as a result of a Change in Tax Law of such Relevant Taxing Jurisdiction which was officially announced at the time the latter became a Relevant Taxing Jurisdiction.
In the case of a Guarantor that becomes a party to this Indenture after the Issue Date or a successor Person (including a surviving entity), the Change in Tax Law must become effective after the date that such entity (or another Person organized or resident in the same jurisdiction) first makes a payment on the Notes. In the case of Additional Amounts required to be paid as a result of the Company conducting business in an Additional Taxing Jurisdiction, the Change in Tax Law must become effective after the date the Company begins to conduct the business giving rise to the withholding or deduction.
Notwithstanding the foregoing, no such notice of redemption will be given (a) earlier than 90 days prior to the earliest date on which the Company or any Guarantor, would be obliged to make such payment of Additional Amounts or withholding if a payment in respect of
the Notes or the relevant Note Guarantee, as the case may be, were then due and (b) unless at the time such notice is given, the obligation to pay Additional Amounts remains in effect.
Prior to the giving of any notice of redemption pursuant to this Section 3.07(e), the Company will deliver to the Trustee:
(1)an Officers’ Certificate stating that the Company is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Company so to redeem have occurred (including that such obligation to pay such Additional Amounts cannot be avoided by the Company or any Guarantor or surviving entity taking reasonable measures available to it); and
(2)a written opinion of independent tax advisers of recognized standing qualified under the laws of the Relevant Taxing Jurisdiction and reasonably satisfactory to the Trustee to the effect that the Company or a Guarantor or surviving entity, as the case may be, is or would be obligated to pay such Additional Amounts as a result of a Change in Tax Law.
The foregoing provisions shall apply mutatis mutandis to any successor Person, after such successor Person becomes a party to this Indenture, with respect to a Change in Tax Law occurring after the time such successor Person becomes a party to this Indenture.
(f)Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Section 3.07 Mandatory Redemption.
The Company is not required to make any mandatory redemption or sinking fund payments with respect to the Notes.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes.
(a)The Company will pay or cause to be paid the principal of, premium, if any, and interest on, the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest will be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 11:00 a.m. Eastern Time on the Business Day prior to the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal of, premium, if any, and interest then due and the Paying Agent is not prohibited from paying such money to the Holders on the due date pursuant to the terms of this Indenture.
The Company will pay interest on overdue principal at the rate specified therefor in the Notes, and it shall pay interest on overdue installments of interest at the same rate borne by the Notes to the extent lawful.
(b)(i) All payments that the Company makes under or with respect to the Notes and that any Guarantor makes under or with respect to any Note Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charges (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of the United States, any jurisdiction in which the Company or any Guarantor is incorporated, organized, engaged in business for tax purposes or otherwise resident for tax purposes or from or through which any of the foregoing makes any payment on the Notes or by or within any department
or political subdivision or governmental authority or in any of the foregoing having the power to tax (each, a “Relevant Taxing Jurisdiction”), unless withholding or deduction is then required by law or by the interpretation or administration of law. If the Company or any Guarantor is required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes, the Company or such Guarantor, as the case may be, shall pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by each Holder or beneficial owner of the Notes (including Additional Amounts) after such withholding or deduction will be not less than the amount the Holder or beneficial owner would have received if such Taxes had not been required to be withheld or deducted.
(ii)Neither the Company nor any Guarantor shall, however, pay Additional Amounts to a Holder or beneficial owner of Notes in respect or on account of:
(A)any Taxes that would not have been imposed or levied by a Relevant Taxing Jurisdiction but for the Holder’s or beneficial owner’s present or former connection with such Relevant Taxing Jurisdiction (including, without limitation, as a result of being resident for Tax purposes, or being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) (other than the mere receipt or holding of Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes, this Indenture or any Note Guarantee);
(B)any Taxes that are imposed or withheld by reason of the failure of the Holder or Beneficial Owner, following the Company’s written request addressed to the Holder (and made at a time that would enable the Holder or beneficial owner acting reasonably to comply with that request) to comply with any certification or identification requirements, whether required or imposed by statute, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(C)any estate, inheritance, gift, excise, sales, transfer, personal property or similar Taxes;
(D)any Tax which is payable other than by deduction or withholding from payments made under or with respect to the Notes or Note Guarantees;
(E)any Tax imposed on or with respect to any payment by the Company or a Guarantor to the Holder if such Holder is a fiduciary or partnership or person other than the sole beneficial owner of such payment to the extent that Taxes would not have been imposed on such payment had the beneficiary, partner or other beneficial owner directly held the Note;
(F)any Tax that is imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of the Notes for payment on a date more than 30 days after the date on
which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the Beneficial Owner or Holder thereof would have been entitled to Additional Amounts had the Notes been presented for payment on any date during such 30-day period;
(G)any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed or levied on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive;
(H)any Tax that is imposed or levied on or with respect to a Note presented for payment on behalf of a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Note to another Paying Agent in a member state of the European Union;
(I)any Taxes imposed pursuant to Sections 1471 to 1474 (inclusive) of the Code including any current or future Treasury regulations or other official interpretations or guidance thereunder; or
(J)any combination of the items above.
(iii)The Company and each Guarantor shall (A) make such withholding or deduction required by applicable law and (B) remit the full amount deducted or withheld to the relevant taxing authority in accordance with applicable law.
(iv)At least 30 calendar days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Company and any Guarantor shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it will be promptly thereafter), the Company shall deliver to the Trustee an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable and shall set forth such other information (other than the identities of Holders and Beneficial Owners) necessary to enable the Trustee or the Paying Agent, as the case may be, to pay such Additional Amounts to Holders on the relevant payment date. The Company shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing payment of such Additional Amounts.
(v)The Company or the relevant Guarantor shall furnish to the Trustee and each Holder within a reasonable time certified copies of tax receipts evidencing the payment by the Company or such Guarantor, as the case may be, of any Taxes imposed or levied by a Relevant Taxing Jurisdiction. If, notwithstanding the reasonable best efforts of the Company or such Guarantor to obtain such receipts, the same are not obtainable, then the Company or such Guarantor shall provide the Trustee and the Holders with other evidence reasonably satisfactory to the Trustee or the Holders of such payment by the Company or such Guarantor.
(vi)If the Company or any Guarantor conducts business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than a Relevant Taxing
Jurisdiction and, as a result, is required by the law of such Additional Taxing Jurisdiction to withhold or deduct any amount on account of the Taxes imposed by such Additional Taxing Jurisdiction from payment under the Notes or the related Note Guarantee, as the case may be, which would not have been required to be so withheld or deducted but for such conduct of business in such Additional Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply as if references in such provision to “Taxes” included taxes imposed by way of withholding or deduction by any such Additional Taxing Jurisdiction (or any political subdivision thereof or therein).
(vii)The Company and each Guarantor shall pay and indemnify the Holders and the Trustee (if applicable) for (A) any present or future stamp, issue, registration, court or documentary, excise or property taxes or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the execution, issue, delivery or registration of the Notes, any Note Guarantee or this Indenture or any other document or instrument referred to hereunder and any such taxes, charges, duties or similar levies imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes, such Note Guarantee or this Indenture or any such other document or instrument following the occurrence of any Event of Default, and (B) any stamp, court, or documentary taxes (or similar charges or levies) imposed with respect to the receipt of any payments with respect to the Notes or such Note Guarantee. Neither the Company nor any Guarantor shall, however, pay such amounts that are imposed on or result from a sale or other transfer or disposition by a Holder or Beneficial Owner (other than the initial resale of the Notes by the initial purchasers).
(viii)This Section 4.01(b) shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Company or any Guarantor is organized, incorporated or otherwise resident for tax purposes and any political subdivision or taxing authority or agency thereof or therein.
(c)In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to this Indenture in effect from time to time (“Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Company agrees (i) to provide to the Trustee and each Paying Agent sufficient information about the parties or transactions (including any modification to the terms of such transactions) so the Trustee and each Paying Agent can determine whether it has tax related obligations under Applicable Law, (ii) that the Trustee and each Paying Agent shall be entitled to make any withholding or deduction from payments to the extent necessary to comply with Applicable Law for which the Trustee and each Paying Agent shall not have any liability, and (iii) to hold harmless the Trustee and each Paying Agent for any losses it may suffer due to the actions it takes to comply with Applicable Law. The terms of this Section 4.01(c) shall survive the termination, defeasance or discharge of this Indenture.
Section 4.02 Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served (other than the type contemplated by Section 12.09). The Company 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 Company fails to maintain any such required office or
agency or fails 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.
The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission will in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, the City of New York for such purposes. The Company 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.
The Company hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.03 hereof.
Section 4.03 Reports.
(a)The Company will furnish to the Trustee and the Holders of the Notes in the manner specified below:
(i)within 90 days after the end of each fiscal year ending December 31, an annual report of the Company containing substantially all the financial information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” Section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report will not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(ii)within 45 days after the end of each of the first three fiscal quarters of each fiscal year, quarterly reports of the Company containing substantially all the financial information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” Section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(iii)within ten Business Days after the occurrence of each event that would have been required to be reported in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required to be contained in a current report on Form 8-K under the Exchange Act pursuant to Sections 1, 2 (other than Item 2.02) and 4 and Items 5.01, 5.02 (other than any compensation-related information) and 5.03 of Form 8-K if the Company had been a reporting company under the Exchange Act; provided, however, that no such current report will be required to (i) be furnished if the Company determines in its good faith judgment that such event is not material to Holders or the business, assets, operations, financial positions or prospects of the Company and its Subsidiaries, taken as a whole, or if the Company determines in its good faith judgment that such disclosure would otherwise cause material competitive harm to the business, assets, operations, financial position or prospects of the Company and its Subsidiaries, taken as a
whole; provided that such non-disclosure shall be limited only to those specific provisions that would cause material competitive harm and not the occurrence of the event itself or (ii) contain financial statements or pro forma financial statements.
(b)None of the reports referenced in Section 4.03(a) will be required to comply with Section 302 or Section 404 of the Sarbanes-Oxley Act of 2002, or related Items 307 and 308 of Regulation S-K promulgated by the Commission, or Item 302 of Regulation S-K or Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or Item 601 of Regulation S-K (with respect to exhibits), in each case, as in effect on the Issue Date, and will not be required to contain the separate financial information for Guarantors contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the Commission or to provide financial statements in interactive data format using the eXtensible Business Reporting Language.
(c)To the extent not satisfied by Section 4.03(a), for so long as any Notes are outstanding and constitute “restricted securities” within the meaning of Rule 144 under the Securities Act, the Company will furnish to Holders and to securities analysts and prospective purchasers of the Notes in connection with any sale thereof, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this Section 4.03(c) and Section 4.03(a) may be satisfied by (i) delivering such information electronically to the Trustee and (ii) posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders and prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company and who acknowledge the confidentiality of the information.
(d)Notwithstanding Section 4.03(a) through (c), at all times that either the Company or Parent is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the reporting requirements of this Section 4.03 shall be satisfied through the filing with the Commission within the time periods specified in the Commission’s rules and regulations that are then applicable to the Company or Parent, as applicable, all the reports on Form 10-K, Form 10-Q and Form 8-K that either the Company or Parent, as applicable, is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the Commission.
(e)In the event that the reporting obligation of this Section 4.03 are satisfied through the reports of Parent in accordance with Section 4.03(d) and Parent or any other direct or indirect parent company of the Company holds any material assets other than cash, Cash Equivalents and the Capital Stock of the Company or any other direct or indirect parent of the Company (and performs the related incidental activities associated with such ownership), then the reports of Parent referenced in Section 4.03(d) shall be accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Parent and such other parent companies, on the one hand, and the information relating to the Company and its Subsidiaries on a stand-alone basis, on the other hand.
(f)[Intentionally Omitted]
(g)Notwithstanding anything herein to the contrary, the Company will not be deemed to have failed to comply with any of its obligations hereunder for purposes of Section 6.01(a)(iii) until 90 days after the date any report hereunder is due.
(h)Delivery of the above reports to the Trustee is for informational purposes only and the Trustee’s receipt of such reports shall not constitute actual or constructive notice of
any information contained therein or determinable from information contained therein, including compliance by the Company, any Guarantor or any Subsidiary with any of its covenants in this Indenture (as to which the Trustee is entitled to rely exclusively on an Officers’ Certificate) or any other agreement or document. The Trustee shall have no obligation to determine if and when the Company has satisfied its reporting obligations under this Section 4.03 pursuant to Section 4.03(a)(iii), Section 4.03(c), Section 4.03(d) or Section 4.03(e). The Company shall (i) provide the Trustee with prompt written notification at such time that the Company commences or ceases to satisfy its reporting obligation under Section 4.03 through the reports of the Company or Parent, as applicable, in accordance with Section 4.03(d) or (ii) provide the Trustee and the Holders the information set forth in Section 4.03(a).
Section 4.04 Compliance Certificate.
(a)The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company ending December 31, an Officers’ Certificate stating that in the course of the performance by the signers of their duties as Officers of the Company they would normally have knowledge of any Default and whether or not the signers know of any Default that occurred during such period. If they do, the certificate shall describe the Default, its status and what action the Company is taking or proposes to take with respect thereto. The Company also shall comply with Section 314(a)(4) of the TIA.
(b)So long as any of the Notes are outstanding, the Company will deliver to the Trustee, forthwith upon any Officer becoming aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event of Default and the remedial action the Company proposes to take in connection therewith.
Section 4.05 Corporate Existence.
Except as otherwise permitted by Article 5, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence in accordance with its organizational documents.
Section 4.06 [Intentionally Omitted].
Section 4.07 [Intentionally Omitted].
Section 4.08 Limitation on Sale and Lease Back Transactions.
(a)The Company will not, and will not permit any of its Subsidiaries, directly or indirectly, to enter into any sale and lease-back transaction for the sale and leasing back of any Principal Property, whether now owned or hereafter acquired, unless:
(1)such transaction was entered into prior to or within 12 months after the Issue Date;
(2)such transaction was for the sale and leasing back to the Company or a Subsidiary of any Principal Property;
(3)such transaction involves a lease of a Principal Property executed by the time of or within 12 months after the latest of the acquisition, the completion of construction or improvement, or the commencement of commercial operation, of such Principal Property;
(4)such transaction involves a lease for not more than three years (or which may be terminated by the Company or the applicable Subsidiary within a period of not more than three years);
(5)the Company or the applicable Subsidiary would be entitled to incur Indebtedness secured by a mortgage on the property to be leased in an amount
equal to Attributable Liens with respect to such sale and lease-back transaction without equally and ratably securing the Notes pursuant to Section 4.12(a); or
(6)the Company or the applicable Subsidiary applies an amount equal to the net proceeds from the sale of the Principal Property to the purchase of another Principal Property or to the retirement or other repayment or prepayment of long-term Indebtedness within 365 calendar days before or after the effective date of any such sale and lease-back transaction; provided that in lieu of applying such amount to such retirement, repayment or prepayment, the Company or any Subsidiary may deliver Notes to the trustee for cancellation, such Notes to be credited at the cost thereof to the Company or such Subsidiary.
(b) Notwithstanding Section 4.08(a), the Company and its Subsidiaries may enter into any sale and lease-back transaction which would otherwise be subject to the foregoing restrictions if after giving effect thereto and at the time of determination, Aggregate Debt does not exceed an amount equal to the greater of (a) $2,500,000,000, and (b) 2.5 times EBITDA of the Company for the Measurement Period immediately preceding the closing date of the sale and lease-back transaction.
Section 4.09 Limitation on Subsidiary Debt.
(a)The Company will not permit any of its Subsidiaries to create, assume, incur, Guarantee or otherwise become liable for or suffer to exist any Indebtedness (any Indebtedness of a Subsidiary of the Company, “Subsidiary Debt”), without Guaranteeing the payment of the principal of, premium, if any, and interest on the Notes on an unsecured unsubordinated basis.
(b)Section 4.09(a) shall not apply to, and there shall be excluded from Indebtedness in any computation under such restriction, Subsidiary Debt constituting:
(1)Indebtedness of a Person existing at the time such Person is merged into or consolidated with or otherwise acquired by any Subsidiary of the Company or at the time of a sale, lease or other disposition of the properties and assets of such Person (or a division thereof) as an entirety or substantially as an entirety to any Subsidiary of the Company and is assumed by such Subsidiary; provided that any such Indebtedness was not incurred in contemplation thereof and is not Guaranteed by any other Subsidiary of the Company (other than any Guarantee existing at the time of such merger, consolidation or sale, lease or other disposition of properties and assets and that was not issued in contemplation thereof);
(2)Indebtedness of a Person existing at the time such Person becomes a Subsidiary of the Company; provided that any such Indebtedness was not incurred in contemplation thereof;
(3)Indebtedness owed to the Company or any Subsidiary of the Company;
(4)any Subsidiary Debt represented by any Guarantee of the 2019 Notes, the 2023 Notes or the 2024 Notes or any Indebtedness or Guarantees under Permitted Bank Indebtedness;
(5)Indebtedness or Guarantees in respect of netting services, business credit card programs, overdraft protection and other treasury, depository and cash management services or incurred in connection with any automated clearing-house transfers of funds or other fund transfer or payment processing services;
(6)Indebtedness or Guarantees arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that any such Indebtedness or Guarantee is extinguished within five Business Days within its incurrence;
(7)Indebtedness or Guarantees in respect of any Qualified Securitization Financing;
(8)reimbursement obligations incurred in the ordinary course of business;
(9)client advances and deposits received in the ordinary course of business;
(10)Indebtedness or Guarantees incurred by Foreign Subsidiaries in an amount not to exceed $150,000,000 at any time outstanding;
(11)Indebtedness or Guarantees incurred (a) in respect of workers’ compensation claims, payment obligations in connection with health or other types of social security benefits, unemployment or other insurance obligations, reclamation and statutory obligations, (b) in connection with the financing of insurance premiums or self-insurance obligations or take-or-pay obligations contained in supply agreements, and (c) in respect of guarantees, warranty or contractual service obligations, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, letters of credit and banker’s acceptances for operating purposes or to secure any Indebtedness or other obligations referred to in clauses (1) through (9) or this clause (11), payment (other than for payment of Indebtedness) and completion guarantees, in each case provided or incurred (including Guarantees thereof) in the ordinary course of business; or
(12)Indebtedness outstanding on the Issue Date not referred to in clause (4) above and any extension, renewal, replacement, refinancing or refunding of any Indebtedness existing on the Issue Date or referred to in clauses (1), (2) and (4); provided that any Indebtedness incurred to so extend, renew, replace, refinance or refund shall be incurred within 360 days of the maturity, retirement or other repayment or prepayment of the Indebtedness referred to in this clause or clauses (1), (2) and (4) above and the principal amount of the Indebtedness incurred to so extend, renew, replace, refinance or refund shall not exceed the principal amount of Indebtedness being extended, renewed, replaced, refinanced or refunded plus any premium or fee (including tender premiums) or other reasonable amounts payable, plus all accrued interest on such Indebtedness and the amount of fees, expenses and other costs incurred, in connection with any such extension, renewal, replacement, refinancing or refunding.
(c)Notwithstanding Sections 4.09(a) and (b), the Company or any Subsidiary of the Company may, create, incur, issue, assume, Guarantee or otherwise become liable for or suffer to exist Indebtedness that would otherwise be subject to the restrictions set forth in Sections 4.09(a) and (b), without Guaranteeing the Notes, if after giving effect thereto, Aggregate Debt does not exceed an amount equal to the greater of (a) $2,500,000,000, and (b) 2.5 times EBITDA of the Company for the Measurement Period immediately preceding the date of the creation or incurrence of the Subsidiary Debt. Any Subsidiary also may, without Guaranteeing the payment of the principal of, premium, if any, and interest on the Notes, extend, renew, replace, refinance or refund any Subsidiary Debt permitted pursuant to the preceding sentence, provided that any Subsidiary Debt incurred to so extend, renew, replace, refinance or refund shall be incurred within 360 days of the maturity, retirement or other repayment or prepayment of the Subsidiary Debt being extended, renewed, replaced, refinanced or refunded
and the principal amount of the Subsidiary Debt incurred to so extend, renew, replace, refinance or refund shall not exceed the principal amount of Subsidiary Debt being extended, renewed, replaced, refinanced or refunded plus any premium or fee (including tender premiums) or other reasonable amounts payable, plus all accrued interest on such Subsidiary Debt and the amount of fees, expenses and other costs incurred, in connection with any such extension, renewal, replacement, refinancing or refunding.
(d)Notwithstanding anything to the contrary, in the event that any Wholly Owned Subsidiary of the Company guarantees the obligations of the Company under the Credit Agreement, such Wholly Owned Subsidiary shall, subject to the receipt of any necessary regulatory approvals, also provide a Note Guarantee by executing and delivering to the Trustee a supplemental indenture and Notation of Guarantee in accordance with the terms of this Indenture.
Section 4.10 [Intentionally Omitted].
Section 4.11 [Intentionally Omitted].
Section 4.12 Limitation on Liens.
(a)The Company shall not, and shall not permit any of its Subsidiaries, directly or indirectly, to enter into, create, incur, assume or suffer to exist any Lien on any Principal Property, whether now owned or hereafter acquired, in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except:
(1)Liens existing as of the Issue Date;
(2)Liens granted after the Issue Date created in favor of the Holders of the Notes;
(3)Liens created in substitution of, or as replacements for, any Liens described in clauses (1) and (2) above; provided that based on a good faith determination of Senior Management, the Principal Property encumbered under any such substitute or replacement Lien is substantially similar in nature to the Principal Property encumbered by the otherwise permitted Lien which is being replaced; and
(4)Permitted Liens.
(b)Notwithstanding Section 4.12(a), the Company or any Subsidiary of the Company may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in Section 4.12(a) if after giving effect thereto, Aggregate Debt does not exceed an amount equal to the greater of (a) $2,500,000,000, and (b) 2.5 times EBITDA of the Company for the Measurement Period immediately preceding the date of the creation or incurrence of the Lien. The Company or any Subsidiary of the Company also may, without equally and ratably securing the Notes, create or incur Liens that extend, renew, substitute or replace (including successive extensions, renewals, substitutions or replacements), in whole or in part, any Lien permitted pursuant to the preceding sentence.
Section 4.13 Business Activities.
The Company shall not, and shall not permit any Subsidiary to, engage in any business other than Permitted Businesses, except to such extent as would not be material to the Company and its Subsidiaries taken as a whole.
Section 4.14 Payment of Taxes and Other Claims.
The Company shall, and shall cause each of its Subsidiaries to, pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (a) 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 (b) all lawful claims for labor, materials and supplies except, in each case, any such tax, assessment, charge or claim as is being contested in good faith by appropriate actions or where the failure to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim is not materially adverse to the Holders.
Section 4.15 Offer to Repurchase upon Change of Control.
(a)If a Change of Control occurs, unless the Company at such time has given notice of redemption under Section 3.07(d) or 3.07(e) with respect to all outstanding Notes, each Holder will have the right to require the Company to repurchase all or any part (in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess thereof) of that Holder’s Notes pursuant to an offer to purchase on the terms set forth in this Indenture (the “Change of Control Offer”). In the Change of Control Offer, the Company will offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest on the Notes repurchased, to, but excluding, the Change of Control Payment Date (the “Change of Control Payment”). Within 30 days following any Change of Control, unless the Company at such time has given notice of redemption under Section 3.07(d) or Section 3.07(e) with respect to all outstanding Notes, the Company will give notice to the Trustee Holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the date specified in the notice (the “Change of Control Payment Date”), which date will be no earlier than 30 days and no later than 60 days from the date such notice is given, pursuant to the procedures required by this Indenture and described in such notice. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.15 by virtue of such conflict.
(b)On or prior to 11:00 a.m., New York City time, on the Business Day immediately preceding the Change of Control Payment Date, the Company shall, to the extent lawful, deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered.
(c)On the Change of Control Payment Date, the Company shall, to the extent lawful:
(i)accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer; and
(ii)deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company.
(d)The Paying Agent shall promptly deliver to each Holder properly tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each new Note will be in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess
thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(e)The Company shall not be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer or (ii) a valid notice of redemption for all of the Notes has been given, or will be given contemporaneously with the Change of Control, pursuant to Section 3.07(d) or (e) unless and until such notice has been validly revoked (in the case of a redemption pursuant to Section 3.07(d)) or there is a default in the payment of the applicable redemption price. A Change of Control Offer may be made in advance of a Change of Control or conditional upon the occurrence of a Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made.
(f)In the event that Holders of not less than 90% in aggregate principal amount of the then outstanding Notes accept a Change of Control Offer and the Company (or any third party making such Change of Control Offer in lieu of the Company as described above) purchases all of the Notes held by such Holders, the Company shall have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the Change of Control Payment Date relating to the Change of Control Offer described above, to redeem all of the Notes that remain outstanding following such Change of Control Payment Date at a redemption price equal to the Change of Control Payment, plus to the extent not included in the Change of Control Payment, accrued and unpaid interest on the Notes that remain outstanding, to, but excluding, the date of purchase.
Section 4.16 Payments for Consent.
The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid and is paid to all Holders that so consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement.
Section 4.17 Additional Guarantees.
On or after the Issue Date, the Company shall cause each Subsidiary that is required to Guarantee the payment of principal of, premium, if any, and interest on the Notes pursuant to Section 4.09 to become a Guarantor, within 10 Business Days of the creation, assumption, incurrence or Guarantee of the applicable Subsidiary Debt, and the Company shall cause each such Subsidiary to execute and deliver to the Trustee within such 10 Business Day period (i) a supplemental indenture in substantially the form attached hereto as Exhibit E and (ii) a Notation of Guarantee in substantially the form attached hereto as Exhibit D, pursuant to which such Subsidiary will unconditionally Guarantee, on a joint and several basis, the full and prompt payment of the principal of, premium, if any and interest on the Notes and all other obligations under this Indenture on the same terms and conditions as those set forth in this Indenture.
Each Note Guarantee will be limited to an amount not to exceed the maximum amount that can be Guaranteed by that Subsidiary without rendering the Note Guarantee, as it relates to such Subsidiary, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
Each Note Guarantee shall be automatically released in accordance with the provisions of this Indenture described under Article 11.
Section 4.18 [Intentionally Omitted].
Section 4.19 Suspension of Guarantees Upon Change in Ratings.
(a)If on any date following the Issue Date (1) the Notes are rated Investment Grade by either of the Rating Agencies; and (2) no Default or Event of Default shall have occurred and be continuing, then, beginning on such date (the “Suspension Date”) and subject to the provisions of Section 4.19(b), the Note Guarantees shall be deemed released and the Company’s obligation under Section 4.17 shall be suspended (collectively, the “Suspended Provisions”).
(b)During any Suspension Period, any Subsidiary Debt incurred prior to or outstanding as of the Suspension Date shall be deemed to have been incurred in compliance with Section 4.09.
(c)In the event that the Notes are no longer rated Investment Grade by both Rating Agencies or an Event of Default shall have occurred and be continuing, the Suspended Provisions will be reinstituted as of and from the date on which the Notes are no longer rated Investment Grade by both Rating Agencies or an Event of Default has occurred and is continuing (any such date, a “Reversion Date”). The period of time between the Suspension Date and the Reversion Date is referred to as the “Suspension Period.” Notwithstanding that the Suspended Provisions may be reinstated, no Default or Event of Default will be deemed to have occurred as a result of a failure to comply with the Suspended Provisions during the Suspension Period.
(d)The Company and its Subsidiaries may honor any contractual commitments to take actions following a Reversion Date without causing a Default or Event of Default; provided that such contractual commitments were entered into during the Suspension Period and not in contemplation of a reversion of the Suspended Provisions.
(e)The Company shall provide an Officers’ Certificate to the Trustee indicating the commencement of any Suspension Period or the Reversion Date. The Trustee will have no obligation to (i) independently determine or verify if such events have occurred, (ii) make any determination regarding the impact of actions taken during the Suspension Period on the Company and its Subsidiaries’ future compliance with their covenants or (iii) notify the Holders of the commencement of the Suspension Period or the Reversion Date.
Section 4.20 Compliance with Laws.
The Company shall comply, and shall cause each of its Subsidiaries to comply, with all applicable statutes, rules, regulations, orders and restrictions of the United States, all states and municipalities thereof, and of any governmental department, commission, board, regulatory authority, bureau, agency and instrumentality of the foregoing, in respect of the conduct of their respective businesses and the ownership of their respective properties, except, in any such case, to the extent the failure to so comply would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of the Company and its Subsidiaries taken as a whole.
Section 4.21 Waiver of Stay, Extension or Usury Laws.
The Company and each Guarantor covenants (to the extent permitted by applicable law) 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 Company 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 permitted by applicable law) the Company and each Guarantor hereby expressly waives all benefit or advantage of any such law, and covenants (to the extent permitted by applicable law) that it shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
(a)The Company may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving entity); or (2) sell, assign, transfer, convey, lease or otherwise dispose of all or substantially all of the properties or assets of the Company and its Subsidiaries, taken as a whole, in one or more related transactions, to another Person, unless:
(i)either: (A) the Company is the surviving entity; or (B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made is a corporation or limited liability company organized or existing under the laws of any member state of the European Union, the United States, any state of the United States or the District of Columbia (the Company or such Person, including the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, as the case may be, being herein called the “Successor Company”); provided that at any time the Successor Company is a limited liability company, there shall be a co-issuer of the Notes that is a corporation that satisfies the requirements of this Section 5.01(a);
(ii)the Successor Company (if other than the Company) assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture;
(iii)immediately after such transaction, no Default or Event of Default exists; and
(iv)the Company delivers an Officers’ Certificate and Opinion of Counsel stating that such transaction complies with this Indenture and, if applicable, all conditions precedent in this Indenture to the execution of the supplemental indenture have been satisfied.
The foregoing provision shall also apply to any Guarantor.
(b)For purposes of this Article 5, the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of the Company.
(c)For the avoidance of doubt, it is agreed that, for all purposes under this Indenture, a sale, transfer or disposition of the properties or assets of the Company and its Subsidiaries that, in the aggregate accounted for no more than two-thirds of the Company’s aggregate EBITDA during the four most recent consecutive fiscal quarters prior to the date of such sale, transfer or disposition for which financial statements are available (as specified in an Officers’ Certificate delivered to the Trustee), shall be deemed not to be a sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of the Company.
(d)Upon the execution and delivery of the supplemental indenture referred to in Section 5.01(a) (ii), the predecessor company shall be released from its obligations under this Indenture and the Successor Company shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture, but, in the case of a lease of all or substantially all its assets, the predecessor shall not be so released.
(e)Notwithstanding the foregoing, clause (iii) of Section 5.01(a) shall not apply to (A) a sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Subsidiaries, (B) any Subsidiary consolidating with, merging into or selling, assigning, transferring, conveying, leasing or otherwise disposing of all or part of its properties and assets to the Company or to another Subsidiary (provided that, in the event that such Subsidiary is a Guarantor, it may consolidate with, merge into or sell, assign, transfer, convey, lease or otherwise dispose of all or part of its properties and assets solely to the Company or another Guarantor) or (C) the Company merging with an Affiliate solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
(a)Each of the following is an “Event of Default”:
(i)the Company defaults in payment when due and payable, upon redemption, acceleration or otherwise, of principal of, or premium, if any, on the Notes;
(ii)the Company defaults in the payment when due of interest on or with respect to the Notes and such default continues for a period of 30 days;
(iii)the Company defaults in the performance of, or breaches any covenant, warranty or other agreement contained in, this Indenture (other than a default in the performance or breach of a covenant, warranty or agreement which is specifically dealt with in clauses (i) or (ii) above) and such default or breach continues for a period of 60 days after the notice specified below;
(iv)a default under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any Indebtedness for money borrowed by the Company or any Subsidiary or the payment of which is Guaranteed by the Company or any Subsidiary (other than Indebtedness owed to the Company or a Subsidiary), whether such Indebtedness or Guarantee now exists or is created after the Issue Date, if (A) such default either (1) results from the failure to pay any such Indebtedness at its stated final maturity (after giving effect to any applicable grace periods) or (2) relates to an obligation other than the obligation to pay principal of any such Indebtedness at its stated final maturity and results in the holder or holders of such Indebtedness causing such Indebtedness to become due prior to its stated maturity and (B) the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness in default for failure to pay principal at stated final maturity (after giving effect to any applicable grace periods), or the maturity of which has been so accelerated, aggregate in excess of $50.0 million (or its foreign currency equivalent) at any one time outstanding;
(v)the Company or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(A)commences a voluntary case;
(B)consents to the entry of an order for relief against it in an involuntary case;
(C)consents to the appointment of a custodian of it or for all or substantially all of its property;
(D)makes a general assignment for the benefit of its creditors;
(E)takes any comparable action under any foreign laws relating to insolvency;
(F)generally is not able to pay its debts as they become due; or
(G)takes any corporate action to authorize or effect any of the foregoing;
(vi) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A)is for relief against the Company or any Significant Subsidiary in an involuntary case;
(B)appoints a custodian of the Company or any Significant Subsidiary or for all or substantially all of the property or assets of the Company or any Significant Subsidiary; or
(C)orders the liquidation of the Company or any Significant Subsidiary,
and the order or decree remains unstayed and in effect for 60 days;
(vii)the failure by the Company or any Significant Subsidiary to pay final judgments aggregating in excess of $50.0 million, which final judgments remain unpaid, undischarged and unstayed for a period of more than 60 days after the applicable judgment becomes final, and, with respect to any such judgments covered by insurance, an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly stayed; or
(viii)the Note Guarantee of a Significant Subsidiary or any group of Subsidiaries that, taken together as of the date of the most recent audited financial statements of the Company, would constitute a Significant Subsidiary ceases to be in full force and effect (except as contemplated by the terms hereof) or any Guarantor denies or disaffirms its obligations under this Indenture or any Note Guarantee, other than by reason of the release of such Note Guarantee in accordance with the terms of this Indenture.
(b)If a Default for a failure to report or failure to deliver a required certificate in connection with another default (the “Initial Default”) occurs, then at the time such Initial Default is cured, such Default for a failure to report or failure to deliver a required certificate in connection with another default that resulted solely because of that Initial Default will also be cured without any further action.
(c)Any Default or Event of Default for the failure to comply with the time periods prescribed in Section 4.03 or otherwise to deliver any notice or certificate pursuant to any other provision of this Indenture shall be deemed to be cured upon the delivery of any such report required by Section 4.03 or such notice or certificate, as applicable, even though such delivery is not within the prescribed period specified in this Indenture.
Section 6.02 Acceleration.
(a)If an Event of Default specified in clause (v) or (vi) of Section 6.01(a) occurs and is continuing, then all unpaid principal of, and premium, if any, and accrued and unpaid interest on all of the outstanding Notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
(b)If any Event of Default (other than an Event of Default specified in clauses (v) or (vi) of Section 6.01(a)) shall occur and be continuing, the Trustee or the Holders of at least 25% in principal amount of outstanding Notes under this Indenture may declare the principal of, premium, if any, and accrued interest on such Notes to be immediately due and payable by notice in writing to the Company and the Trustee (if given by the Holders) specifying the respective Event of Default and that it is a “notice of acceleration,” and the same shall become immediately due and payable.
(c)At any time after a declaration of acceleration of the unpaid principal, premium (if any) and accrued and unpaid interest has occurred with respect to the Notes as described in Section 6.02(a) or (b), the Holders of a majority in aggregate principal amount of the then outstanding Notes may rescind and cancel such declaration and its consequences by written notice to the Company and the Trustee:
(i)if the rescission would not conflict with any judgment or decree;
(ii)if all existing Events of Default have been cured or waived except nonpayment of principal, premium, if any, or accrued interest that has become due solely because of the acceleration;
(iii) to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid;
(iv) if the Company has paid the Trustee its reasonable compensation and reimbursed the Trustee for its expenses (including the fees and expenses of its counsel), disbursements and advances; and
(v)in the event of the cure or waiver of an Event of Default under this Indenture of the type described in clause (v) and (vi) of Section 6.01(a), the Trustee shall have received an Officers’ Certificate that such Event of Default has been cured or waived.
No such rescission shall affect any subsequent Default or impair any right consequent thereto.
Section 6.03 Other Remedies.
(a)If a 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 interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
(b)The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon a Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Default. No remedy is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by law.
(c)In the event of any Event of Default specified in clause (iv) of Section 6.01(a), such Event of Default and all consequences thereof (excluding, however, any resulting payment default, other than as a result of the acceleration of the Notes) shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 20 days after such Event of Default arose: (x) the Indebtedness or Guarantee that is the basis for such Event of Default has been discharged or (y) the holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default or (z) the default that is the basis for such Event of Default is no longer continuing, it being understood that in no event shall an acceleration of the principal amount of, premium, if any, and accrued interest on the Notes, as described above, be automatically annulled, waived or rescinded upon the happening of any such events.
(d)Holders may not enforce this Indenture or the Notes, except as provided in this Indenture. The Trustee is under no obligation to exercise any of its rights or powers under this Indenture at the request, order or direction of any of the Holders, unless such Holders have offered to the Trustee reasonable indemnity.
Section 6.04 Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of Notes at the time then outstanding may on behalf of the Holders of all the Notes waive any Default with respect to such Notes and its consequences by providing written notice thereof to the Company and the Trustee, except a Default in the payment of the principal of, premium, if any, or interest on the Notes or a covenant or provision of this Indenture which cannot be modified or amended without the consent of the Holder of each outstanding Note affected. In the case of any such waiver, the Company, the Trustee and the Holders shall be restored to their former positions and rights under this Indenture, respectively; provided that no such waiver shall extend to any subsequent or other Default or impair any right consequent thereto.
Section 6.05 Control by Majority.
Subject to the other provisions of this Indenture and applicable law, the Holders of not less than a majority in aggregate principal amount of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it. The Trustee may refuse to follow any direction that conflicts with any law or this Indenture, that the Trustee determines may be unduly prejudicial to the rights of another Holder, or that may involve the Trustee in personal liability; provided that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. In the event the Trustee takes any action or follows any direction pursuant to this Indenture, the Trustee shall be entitled to indemnification satisfactory to the Trustee against any loss or expense caused by taking such action or following such direction.
Section 6.06 Limitation on Suits.
A Holder may not pursue any remedy with respect to this Indenture or the Notes unless:
(i)the Holder gives to the Trustee written notice of a continuing Event of Default;
(ii)the Holder or Holders of at least 25% in principal amount of the outstanding Notes make a written request to the Trustee to pursue the remedy;
(iii)such Holder or Holders offer and provide to the Trustee indemnity reasonably satisfactory to the Trustee against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 45 days after receipt of the request and the offer and the provision of indemnity; and
(v)during such 45-day period the Holder or Holders of a majority in aggregate principal amount of the outstanding Notes do not give the Trustee a direction in accordance with Section 6.04 which, in the opinion of the Trustee, is inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over such other Holder.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal of and interest 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 the Holder.
Section 6.08 Collection Suit by Trustee.
If a Default in payment of principal or interest specified in clauses (i) or (ii) of Section 6.01(a) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company or any other obligor on the Notes for the whole amount of principal and accrued interest and fees remaining unpaid, 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.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relating to the Company, its creditors or 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 each of the Trustee and the Agents any amount due to it for the compensation, expenses, disbursements and advances of the Trustee, the Agents and their respective agents and counsel, and any other amounts due the Trustee and the Agents under Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. The Trustee shall be entitled to participate as a member of any official committee of creditors in the matters as it deems necessary or advisable.
Section 6.10 Priorities.
Subject to the provisions of Article 10, if the Trustee collects any money or property pursuant to this Article 6, it shall pay out the money or property in the following order:
First: to the Trustee and the Agents for amounts due under Section 7.07;
Second: to Holders for interest accrued on the Notes, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for interest;
Third: to Holders for principal amounts due and unpaid on the Notes, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal; and
Fourth: to the Company or, if applicable, the Guarantors, as their respective interests may appear.
The Trustee, upon prior notice to the Company, may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits
and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10% in principal amount of the outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.
(a)The Trustee, prior to the occurrence of an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge and after the curing of all such Events of Defaults which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. If an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge has occurred and is continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b)Except during the continuance of an Event of Default:
(i)the duties of the Trustee will be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii)in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, with respect to certificates or opinions specifically required by any provision hereof to be furnished to it, the Trustee will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture; provided, however, that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished to it hereunder.
(c)The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i)this paragraph (c) does not limit the effect of paragraph (b) of this Section 7.01;
(ii)the Trustee will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(iii)the Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.
(d)No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability for the performance of any of its duties hereunder or the exercise of any of its rights or powers. The Trustee will be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, unless such Holder has offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.
(e)The Trustee will not be liable for interest on, and will not be obligated to invest, any money received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Section 7.02 Rights of Trustee.
(a)The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b)Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c)The Trustee may execute any of the trusts or powers hereunder and perform any duties hereunder either directly or through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent appointed with due care.
(d)The Trustee will not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e)Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company will be sufficient if signed by an Officer of the Company.
(f)The Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity or security satisfactory to it against the losses, liabilities and expenses that might be incurred by it in compliance with such request or direction.
(g)In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(h)The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.
(i)The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Agents, and the Trustee, in each of its capacities hereunder, each Agent and each agent, custodian, and other Person employed to act hereunder.
(j)The Trustee may request that the Company and each Guarantor deliver an Officers’ Certificate setting forth the names of individuals and titles of Officers authorized at such time to take specified actions pursuant to this Indenture.
(k)The right of the Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act.
(l)The Trustee shall have no obligation to (i) independently determine or verify the rating of any Notes or if a commencement of any Suspension Period or the Reversion Date has occurred, (ii) make any determination regarding the impact of actions taken during the
Suspension Period on the Company and its Subsidiaries’ future compliance with their covenants or (iii) notify the Holders of the commencement of the Suspension Period or the Reversion Date.
(m)Notwithstanding any provision herein to the contrary, in no event shall the Trustee 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, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like which restrict or prohibit the providing of the services contemplated by this Indenture, inability to obtain material, equipment, or communications or computer facilities, or the failure of equipment or interruption of communications or computer facilities, and other causes beyond its control whether or not of the same class or kind as specifically named above.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the Commission for permission to continue as trustee (if this Indenture has been qualified under the TIA) or resign. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee’s Disclaimer.
The Trustee will not be responsible for and makes no representation as to the validity or adequacy of this Indenture, any related offering material or the Notes, it shall not be accountable for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of this Indenture, it will not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it will not be responsible for any statement or recital herein, any statement in the Notes, the Offering Memorandum or any other document in connection with the sale of the Notes or pursuant to this Indenture or the legality or validity of the Notes or this Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is known to the Trustee in accordance with Section 7.02(h), the Trustee will provide to Holders a notice of the Default or Event of Default within 90 days after the Trustee has notice thereof. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest on, any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders.
Section 7.06 [Intentionally Omitted].
Section 7.07 Compensation and Indemnity.
(a)The Company will pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services hereunder as agreed between the Company and the Trustee. The Trustee’s compensation will not be limited by any law on compensation of a trustee of an express trust. The Company will reimburse the Trustee promptly upon request for all reasonable and documented disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses will include the reasonable and documented compensation, disbursements and expenses of the Trustee’s agents and counsel.
(b)The Company and each Guarantor, jointly and severally, will indemnify the Trustee and any director, officer, employee or agent of the Trustee and hold each of them harmless for, from and against any and all losses, liabilities, claims, damages or expenses
incurred by it (i) arising out of or in connection with the acceptance or administration of its duties under this Indenture, including, without limitation, the reasonable and documented costs and expenses (including the costs and expenses of the Trustee’s agents and counsel) of enforcing this Indenture against the Company and the Guarantors (including this Section 7.07) and defending itself against any claim (whether asserted by the Company, the Guarantors, any Holder or any other Person) or (ii) arising out of or in connection with the exercise or performance of any of its powers or duties hereunder and/or the exercise of its rights, except to the extent any such loss, liability or expense may be attributable to its own negligence, bad faith or willful misconduct. The Trustee will notify the Company promptly of any claim of which a Responsible Officer has received written notice for which it may seek indemnity. Failure by the Trustee to so notify the Company will not relieve the Company or any of the Guarantors of their obligations hereunder. The Company or such Guarantor, as the case may be, will defend the claim and the Trustee will cooperate in the defense. The Trustee may have separate counsel and the Company and the Guarantors, as applicable, will pay the reasonable and documented fees and expenses of such counsel; provided, however, that the Company and any Guarantor shall not be required to pay such fees and expenses if it assumes such indemnified party’s defense and, in such indemnified party’s reasonable judgment, there is no conflict of interest or potential conflict of interest between the Company and the Guarantors, as applicable, and such party in connection with such defense. Neither the Company nor any Guarantor need pay for any settlement made without its consent, which consent will not be unreasonably withheld.
(c)The obligations of the Company and the Guarantors under this Section 7.07 will survive payment of the Notes, resignation or removal of the Trustee or any Agent, the satisfaction and discharge of this Indenture or other termination of this Indenture.
(d)To secure the Company’s and the Guarantors’ payment obligations in this Section 7.07, the Trustee will have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien will survive the satisfaction and discharge of this Indenture.
(e)When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(a)(v) or (vi) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
Section 7.08 Replacement of Trustee.
(a)A resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.
(b)The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Company. The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in writing. The Company may remove the Trustee if:
(i)the Trustee fails to comply with Section 7.10 hereof;
(ii)the Trustee is adjudged bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(iii) a custodian, receiver or public officer takes charge of the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
(c)If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company will promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount
of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
(d)If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company, or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(e)If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10 hereof, such Holder may petition at the expense of the Company any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(f)A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee will mail a notice of its succession to Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’s and the Guarantors’ obligations under Section 7.07 hereof will continue for the benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger Etc.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business (including any corporate trust business contemplated by this Indenture) to, another corporation, the successor corporation without any further act will be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation 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 trust powers, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50.0 million as set forth in its most recent published annual report of condition.
Section 7.11 Preferential Collection of Claims Against the Company.
The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may at any time, at the option of its Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes and Note Guarantees upon compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Company and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been released from their obligations with respect to all outstanding Notes (including the Note Guarantees) on the date the
conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Guarantees), which will thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in clauses (i) and (ii) below, and to have satisfied all their other obligations under such Notes, the Note Guarantees and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute instruments acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder:
(i)the rights of Holders of outstanding Notes issued hereunder to receive payments in respect of the principal of, or interest or premium, if any, on such Notes when such payments are due from the trust referred to below;
(ii)the Company’s obligations with respect to the Notes issued hereunder concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment;
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the obligations of the Company and the Guarantors in connection therewith; and
(iv) this Article 8.
Subject to compliance with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this he Company and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of their obligations under the covenants contained in Sections 4.03, 4.05, 4.08, 4.09, 4.12, 4.13, 4.15, 4.16, 4.17 and 5.01(a)(iii) hereof with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes will 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 will continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes will not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and the Note Guarantees, the Company and the Guarantors may omit to comply with and will have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply will not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes and Note Guarantees, will be unaffected thereby. In addition, upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, and clauses (iii), (iv), (v) (with respect to a Significant Subsidiary), (vi) (with respect to a Significant Subsidiary), (vii) and (viii) of Section 6.01(a) will not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
(a)In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 hereof:
(i)the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders cash in U.S. dollars, non-callable U.S. Government Securities, or a combination of cash in U.S. dollars and non-callable U.S. Government Securities, in amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants delivered to the Trustee, to pay the principal of, and interest and premium, if any, on the outstanding Notes issued hereunder on the Stated Maturity or on the applicable redemption date, as the case may be, and the Company must specify whether such Notes are being defeased to maturity or to a particular redemption date;
(ii)in the case of an election under Section 8.02 hereof, the Company has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the Issue Date, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel will confirm that, the Holders of the outstanding Notes issued hereunder will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(iii) in the case of an election under Section 8.03 hereof, the Company has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes issued hereunder will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(iv) 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, or arising in connection with, the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowing);
(v)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 Company or any Guarantor is a party or by which the Company or any Guarantor is bound;
(vi) the Company must deliver to the Trustee an Officers’ Certificate stating that the deposit referred to in clause (i) was not made by the Company with the intent of preferring the Holders over the other creditors of the Company or any Guarantor or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or any Guarantor or others; and
(vii)the Company 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 of the Notes have been complied with.
(b)Notwithstanding the foregoing, the Opinion of Counsel required by clauses (a)(ii) and (a)(iii) above with respect to a Legal Defeasance or a Covenant Defeasance, as applicable, need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable on the
maturity date 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 Company.
(c)Upon satisfaction of the conditions set forth herein and upon the request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
Section 8.05 Deposited Money and U.S. Government Securities to Be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money, non-callable U.S. Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable U.S. Government Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.
Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to the Company from time to time upon the request of the Company any money, non-callable U.S. Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a)(ii) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium, if any, or interest on, any Note and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company) will be discharged from such trust; and the Holder of such Note will thereafter be permitted to look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, will 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 Company cause to be published once, in The New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable U.S. Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s and the Guarantors’ obligations under this Indenture and the Notes and the Note Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium, if any, or interest on, any
Note following the reinstatement of its obligations, the Company will 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 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Without the consent of any Holder, the Company, the Guarantors and the Trustee may amend or supplement this Indenture, the Notes or the Note Guarantees:
(i)to cure any ambiguity, mistake, defect or inconsistency;
(ii)to provide for uncertificated Notes in addition to or in place of certificated Notes;
(iii) to provide for the assumption by a Successor Company or a successor company of a Guarantor, as applicable, of the Company’s or such Guarantor’s obligations under this Indenture;
(iv) to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights hereunder of any Holder;
(v)to secure the Notes;
(vi) to add a Note Guarantee;
(vii)to conform the text of this Indenture or the Notes to any provision of the “Description of Notes” included in the Offering Memorandum relating to the Notes;
(viii)to provide for the issuance of Additional Notes in accordance with the provisions set forth in this Indenture; or
(ix)to release a Guarantor from its Note Guarantee; provided that such release is in accordance with the applicable provisions of this Indenture;
provided, that the Company has delivered to the Trustee an Opinion of Counsel and an Officers’ Certificate, each stating that such amendment or supplement complies with the provisions of this Section 9.01.
Section 9.02 With Consent of Holders of Notes.
(a)Subject to Section 6.07, the Company, the Guarantors and the Trustee, together, with the written consent of the Holder or Holders of a majority in aggregate 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), may amend or supplement this Indenture or the Notes without notice to any other Holders. Subject to Section 6.07, the Holder or Holders of a majority in aggregate principal amount of the Notes then outstanding may waive any existing default or compliance with any provision of this Indenture or the Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes) without notice to any other Holders (except a default in respect of the payment of principal of, premium, if any, or interest on the Notes or a covenant or provision of this Indenture which cannot be modified or amended without the consent of the Holder of each outstanding Note affected).
(b)Notwithstanding Section 9.02(a), without the consent of each Holder of an outstanding Note affected, an amendment, supplement or waiver, including a waiver pursuant to Section 6.04, may not:
(i)reduce the principal amount of Notes issued hereunder whose Holders must consent to an amendment, supplement or waiver;
(ii)reduce the principal of or change the fixed maturity of any Note issued hereunder or alter the provisions with respect to the redemption of the outstanding Notes issued hereunder (other than provisions relating to the covenants described above under Section 4.15, except as set forth in clause (x) below);
(iii) reduce the rate of or change the time for payment of interest on any Note issued hereunder;
(iv)waive a Default or Event of Default in the payment of principal of, or interest or premium, if any, on the outstanding Notes issued hereunder (except a rescission of acceleration of the Notes issued hereunder by the Holders of a majority in aggregate principal amount of the then outstanding Notes issued hereunder with respect to a nonpayment default and a waiver of the payment default that resulted from such acceleration);
(v)make any Note payable in money other than that stated in the Notes;
(vi) make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders hereunder to receive payments of principal of, or interest or premium, if any, on the Notes or impair the right of any Holder to institute suit for the enforcement of any payment on or with respect to the Notes;
(vii)waive a redemption payment with respect to any Note issued hereunder (other than a payment required by Section 4.15, except as set forth in clause (x) below);
(viii)make any change in the ranking or priority of any Note issued hereunder that would adversely affect the Holders;
(ix)modify the Note Guarantees in any manner adverse to the Holders;
(x)amend, change or modify in any material respect the obligation of the Company to make and consummate a Change of Control Offer in respect of a Change of Control that has occurred; or
(xi)make any change in the preceding amendment and waiver provisions.
(c)It shall not be necessary for the consent of the Holders under this Section to approve the particular form of any proposed amendment, supplement or waiver but it shall be sufficient if such consent approves the substance thereof.
(d)After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company shall give to the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.
Section 9.03 [Intentionally Omitted].
Section 9.04 Revocation and Effect of Consents.
(a)Until an amendment, waiver or supplement becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder 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 or subsequent Holder may revoke the consent as to his Note or portion of his Note by notice to the Trustee or the Company received before the date on which the Trustee receives an Officers’ Certificate certifying that the Holders of the requisite principal amount of Notes have consented (and not theretofore revoked such consent) to the amendment, supplement or waiver.
(b)The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver which record date shall be at least 30 days prior to the first solicitation of such consent. If a record date is fixed, then notwithstanding the last sentence of the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date. The Company shall inform the Trustee in writing of the fixed record date if applicable.
(c)After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless it makes a change described in any of clauses (i) through (xi) of Section 9.02(b), in which case, the amendment, supplement or waiver shall bind only each Holder of a Note who has consented to it and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note; provided, that any such waiver shall not impair or affect the right of any Holder to receive payment of principal of and interest 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 without the consent of such Holder.
Section 9.05 Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note, the Company may require the Holder of the Note to deliver it to the Trustee. The Company shall provide the Trustee with an appropriate notation on the Note about the changed terms and cause the Trustee to return it to the Holder at the Company’s expense. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms. Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver authorized pursuant to this Article 9; provided, that the Trustee may, but shall not be obligated to, execute any such amendment, supplement or waiver which affects the Trustee’s own rights, duties or immunities under this Indenture. The Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel and an Officers’ Certificate each stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article 9 is authorized or permitted by this Indenture and constitutes the legal, valid and binding obligations of the Company enforceable in accordance with its terms. Such Opinion of Counsel and Officers’ Certificate shall be at the expense of the Company.
ARTICLE 10
GUARANTEES
Section 10.01 Guarantee.
(a)Subject to this Article 10, each of the Guarantors hereby, jointly and severally, and fully and unconditionally, Guarantees (and in the case of a Guarantor incorporated under laws of Malaysia, such Guarantor shall also Guarantee as principal debtor and not as surety only) to each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and enforceability of, this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (i) the principal of, premium, if any, and accrued and unpaid interest and defaulted interest, if any, on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium, if any, and interest and defaulted interest, if any, on the Notes (pursuant to Section 2.12), if lawful (subject in all cases to any applicable grace period provided herein), and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full, 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 any of such other obligations, the same will be promptly paid in full when due in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Failing payment when due of any amount so Guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a Guarantee of payment and not a Guarantee of collection.
(b)Each Guarantor hereby agrees that, to the maximum extent permitted under applicable law, its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes or the Trustee with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Subject to Section 6.06, each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. The Guarantee contemplated by the Note Guarantee issued by the Guarantor incorporated under laws of Malaysia is, unless otherwise released pursuant to and in accordance with Section 10.05 below, a continuing guarantee and will extend to the ultimate balance of sums payable by the Company under the Notes and this Indenture, regardless of any intermediate payment or discharge in whole or in part.
(c)If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to any of the Company or the Guarantors, any amount paid by any of them to the Trustee or such Holder, the Note Guarantees, to the extent theretofore discharged, shall be reinstated with full force and effect.
(d)Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders or the Trustee in respect of any obligations Guaranteed hereby until payment in full of all obligations Guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Guaranteed hereby may be accelerated as provided in Article 6 for the purposes of its Note 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 declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of its Note Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders or the Trustee under any Note Guarantee.
(e)To the fullest extent permitted by law, each Guarantor organized under the laws of Mexico unconditionally and irrevocably waives, any right to which it may be entitled, to the extent applicable, under Articles 2813, 2814,2815,2816, 2817, 2818, 2819, 2820, 2821, 2822,
2823, 2824, 2826, 2827, 2830, 2835, 2836, 2837, 2838, 2839, 2840, 2842, 2844, 2846, 2847, 2848 and 2849 of the Federal Civil Code (Código Civil Federal) and the corresponding provisions of the Civil Codes of the States of Mexico and the Federal District.
Section 10.02 Limitation on Guarantor Liability.
(a)Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b)Notwithstanding anything to the contrary, nothing in this Indenture may cause the aggregate amount of Sensor-Nite NV’s liability with respect to all Indebtedness guaranteed by Sensor-Nite NV at or prior to the Issue Date, including, without limitation, pursuant to this Indenture and its Note Guarantee, to exceed the greater of (i) 90% of Sensor-Nite NV’s own funds (eigen vermogen/capitaux propres, as defined in Article 617 of the Belgian Companies Code) as derived from its latest audited financial statements available at the time any demand for payment is made and (ii) $40 million.
(c)Notwithstanding anything to the contrary in this Indenture (including in particular this Article 10) and the Notes, the obligations and liabilities of any Guarantor of the Notes incorporated in France (a “French Guarantor”) are subject to the limitations set out in this Section 10.02(c). The obligations and liabilities of any French Guarantor under this Indenture (including in particular this Article 10) and the Notes shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance within the meaning of article L. 225 216 of the French Commercial Code and/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 laws or regulations having the same effect, as interpreted by French courts. The obligations and liabilities of any French Guarantor under this Indenture (including in particular this Article 10) and the Notes for the Company’s obligations under this Indenture and the Notes shall be limited, at any time, to an amount equal to the aggregate of all amounts made available under the Notes and the Indenture to the Company to the extent directly or indirectly on lent to such French Guarantor and/or its direct and indirect Subsidiaries under intercompany loan agreements (excluding, for the avoidance of doubt, any cash pooling arrangements or other cash management agreements, provided that the proceeds of the Notes shall not be used, in whole or in part, to finance, directly or indirectly, such cash pooling arrangements or other cash management agreements) and outstanding at the date a payment is to be made by such French Guarantor under this Indenture (including in particular this Article 10) and the Notes, it being specified that any payment made by a French Guarantor under this Indenture (including in particular this Article 10) and the Notes in respect of the Company’s obligations shall reduce pro tanto the outstanding amount of the intercompany loans due by such French Guarantor or its relevant direct or indirect Subsidiary under the intercompany loan agreements referred to above and that any repayment of the intercompany loans by such French Guarantor or its relevant direct or indirect Subsidiary shall reduce pro tanto the amount payable by such French Guarantor under this Indenture (including in particular this Article 10) and the Notes. It is acknowledged that no
French Guarantor is acting jointly and severally with the other Guarantors and no French Guarantor shall therefore be considered as “co debiteur solidaire” as to its obligations pursuant to the guarantee given pursuant to this Indenture (including in particular this Article 10) and the Notes.
(d)Notwithstanding anything herein to the contrary, the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 to guarantee the obligations thereunder of (i) the Company and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i)90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in article 34 of the Luxembourg law dated 19 December 2002 relating to the Register of Commerce and Companies as well as the accounting and the annual accounts of companies, as amended) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii)90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in article 34 of the Luxembourg law dated 19 December 2002 relating to the Register of Commerce and Companies as well as the accounting and the annual accounts of companies, as amended) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture.
The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Section 10.03 Execution and Delivery of Guarantee.
(a)To evidence its Note Guarantee set forth in Section 10.01, each Guarantor hereby agrees that a notation of such Note Guarantee (a “Notation of Guarantee”) substantially in the form attached hereto as Exhibit D shall be endorsed by an Officer of such Guarantor by manual or facsimile signature on each Note authenticated and delivered by the Trustee and that this Indenture shall be executed on behalf of such Guarantor by one of its Officers.
(b)Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 shall remain in full force and effect notwithstanding any failure to endorse on each Note a Notation of Guarantee.
(c)If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed, the Note Guarantee shall be valid nevertheless.
(d)The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.
(e)If required by Section 4.17, the Company shall cause such Subsidiaries to execute supplemental indentures to this Indenture and Notations of Guarantee in accordance with Section 4.17 and this Article 10, to the extent applicable.
Section 10.04 Guarantors May Consolidate, Etc., on Certain Terms.
Each Guarantor may consolidate with or merge into or sell its assets to the Company or another Guarantor without limitation, or with, into or to any other Persons upon the terms and conditions set forth in Article 5.
Section 10.05 Releases.
The Note Guarantee of a Guarantor will be automatically released in the event that:
(a)there is a sale, disposition or other transfer (including through merger or consolidation) of all of the Capital Stock (or any sale, disposition or other transfer of Capital Stock (including through merger or consolidation) following which the applicable Guarantor is no longer a Subsidiary), or all or substantially all the assets, of the applicable Guarantor;
(b)in the case of any Subsidiary which after the Issue Date is required to provide a Note Guarantee pursuant to Section 4.17, the release or discharge of the Guarantee by such Subsidiary of all Indebtedness of the Company or any Subsidiary or the repayment of all the Indebtedness or Disqualified Stock, in each case, which resulted in an obligation to provide a Note Guarantee;
(c)if the Company exercises its Legal Defeasance option or its Covenant Defeasance option as described under Article 8 or if its obligations under this Indenture are discharged in accordance with the terms of this Indenture as described under Article 11; or
(d)such Guarantor is also a guarantor or borrower under the Credit Agreement as in effect on the Issue Date and, at the time of release of its Note Guarantee, (x) has been released from its Guarantee of, and all pledges and security, if any, granted in connection with the Credit Agreement, (y) is not an obligor under any Indebtedness (other than Indebtedness permitted to be incurred pursuant to clause (3), (5), (6), (7), (8), (9), (10) and (11) of Section 4.09(b) and (z) does not Guarantee any Indebtedness in excess of $50.0 million (or its foreign currency equivalent) at such time outstanding of the Company or any of the other Guarantors.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge.
(a)This Indenture will be discharged and will cease to be of further effect as to all Notes issued hereunder, when:
(i)Either:
(A)all the 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 or segregated and held in trust by the Company and thereafter repaid to the Company, have been delivered to the Trustee for cancellation; or
(B)all the Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the giving of a notice of redemption or otherwise or will become due and payable by reason of the giving of a notice of redemption or otherwise within one year and the Company has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereof, in amounts as will be sufficient, without consideration of any reinvestment of interest, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants delivered to the Trustee, to pay and discharge the entire
Indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption;
(ii)in the case of subclause (i)(B) above, no Default or Event of Default has occurred and is continuing under this Indenture on the date of the deposit or will occur as a result of the deposit (other than a Default or Event of Default resulting from or arising in connection with borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings) and the deposit will not result in a breach or violation of, or constitute a default under, any other material instrument to which the Company is a party or by which the Company is bound;
(iii)the Company has paid or caused to be paid all sums payable by it under this Indenture; and
(iv)the Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes issued hereunder at maturity or the redemption date, as the case may be.
(b)In addition, the Company 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.
(c)Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to subclause (B) of clause (i) of Section 11.01(a), the provisions of Sections 11.02 and 8.06 hereof will survive such satisfaction and discharge. In addition, nothing in this Section 11.01 will be deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the satisfaction and discharge of this Indenture
Section 11.02 Application of Trust Money.
Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or U.S. Government Securities in accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s and any Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof; provided that if the Company has made any payment of principal of, premium, if any, or interest on, any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Securities held by the Trustee or Paying Agent.
ARTICLE 12
MISCELLANEOUS
Section 12.01 [Intentionally Omitted].
Section 12.02 Notices.
Any notice, demand, instruction, request, direction or communication by the Company, any Guarantor or the Trustee to the others is duly given if in English and in writing and delivered in Person or by first class mail (registered or certified, return receipt requested), facsimile transmission or other electronic transmission or overnight air courier guaranteeing next day delivery, to the others’ address:
If to the Company and/or any Guarantor:
Sensata Technologies B.V.
c/o Sensata Technologies, Inc.
529 Pleasant Street
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Financial Officer
With a copy to:
McDermott Will & Emery LLP
227 West Monroe Street
Chicago, Illinois 60606
Facsimile No.: (312) 277-8999
Attention: Stephanie McCann, Esq.
If to the Trustee:
The Bank of New York Mellon
Corporate Trust Division
101 Barclay Street, 7th Floor East
New York, NY 10286
Facsimile No.: (212) 815-5390
Attention: Corporate Trust Division
The Company, any Guarantor or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.
All notices and communications to the Trustee or any Agent shall be deemed to have been duly given upon actual receipt thereof by such party. All other notices and communications (other than those sent to Holders) will be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder of a Global Note will be delivered to the Depositary in accordance with its customary procedures. Any notice or communication to a Holder of a Definitive Note will be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Failure to mail a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders.
Except with respect to the Trustee and the Agents, if a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
In respect of this Indenture, the Trustee shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give
such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission; and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information. Each other party agrees to assume all risks arising out of the use of electronic methods, including any non-secure method, such as, but without limitation, by facsimile or electronic mail, to submit instructions, directions, reports, notices or other communications or information to the Trustee, including without limitation, the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties.
If the Company gives a notice or communication to Holders, it will give a copy to the Trustee and each Agent at the same time.
Section 12.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
Section 12.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take or refrain from taking any action under this Indenture, the Company shall furnish to the Trustee:
(i)an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05 hereof) 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; and
(ii)an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
Section 12.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) must comply with the provisions of TIA § 314(e) and must include:
(i)a statement substantially to the effect that the Person making such certificate or opinion has read such covenant or condition;
(ii)a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii)a statement substantially to the effect that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
(iv)a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied; provided, however, that with respect to matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate or certificates of public officials.
Section 12.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders.
No director, officer, employee, incorporator or stockholder of the Company, any of its Subsidiaries or any of its direct or indirect parent companies, as such, will have any liability for any obligations of the Company or any Guarantor under any Notes, this Indenture, the Note Guarantees, 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 such Notes. The waiver may not be effective to waive liabilities under the federal securities laws, and it is the view of the Commission that such waiver is against public policy.
Section 12.08 Governing Law.
THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 12.09 Jurisdiction; Waiver of Jury Trial.
(a)each of the Company and the Guarantors hereby consents to the non-exclusive jurisdiction of any court of the State of New York or any U.S. federal court, in each case, sitting in the Borough of Manhattan, The City of New York, New York, United States, and any appellate court from any thereof in any action or proceeding arising out of or related to the Notes, this Indenture or the Note Guarantees. Each of the Company and the Guarantors hereby appoints CT Corporation System located at 111 Eighth Avenue, New York, New York 10011 as its authorized agent upon which service of process may be served in any action or proceeding brought in any court of the State of New York or any U.S. federal court sitting in the Borough of Manhattan, The City of New York in connection with this Indenture, the Notes or the Note Guarantees.
(b)EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 12.10 Waiver of immunities.
To the extent that the Company or any Guarantor may in any jurisdiction claim for itself or its assets immunity from a suit, execution, attachment, whether in aid of execution, before judgment or otherwise, or other legal process in connection with and as set out in this Indenture, the Notes or the Note Guarantees and to the extent that in any jurisdiction there may be immunity attributed to the Company or the Guarantors or the Company’s or any Guarantor’s assets, whether or not claimed, the Company or any Guarantor, as applicable, irrevocably agrees for the benefit of the Holders not to claim, and irrevocably waives, the immunity to the full extent permitted by law.
Section 12.11 Currency Rate Indemnity.
The U.S. dollar is the sole currency of account and payment for all sums payable by the Company or any Guarantor under or in connection with the Notes, including damages. Any amount with respect to the Notes or the guarantees thereof 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 Company or any Guarantor or otherwise by any Holder or by the Trustee, in respect of any sum expressed to be due to it from the Company or any Guarantor will only constitute a discharge to the Company or any Guarantor 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).
Section 12.12 Successors.
All agreements of the Company in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this Indenture will bind its successors. All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 10.04 hereof.
Section 12.13 Severability.
In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, then (to the extent permitted by applicable law) the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
Section 12.14 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy will be an original, but all of them together represent the same agreement. Delivery of an executed counterpart of a signature page to this Indenture by facsimile or .pdf attachment to an email or by other electronic means shall be effective as delivery of a manually executed counterpart of this Indenture.
Section 12.15 Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
Dated as of March 26, 2015
SIGNATURES
SENSATA TECHNOLOGIES, B.V.
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature Page – Sensata Technologies B.V. – Indenture]
SENSATA TECHNOLOGIES, INC.
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Chief Operating Officer
[Signature Page – Sensata Technologies B.V. – Indenture]
SENSATA TECHNOLOGIES MASSACHUSETTS, INC.
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Chief Financial Officer
[Signature Page – Sensata Technologies B.V. – Indenture]
SENSATA TECHNOLOGIES U.S., LLC
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature Page – Sensata Technologies B.V. – Indenture]
SENSATA TECHNOLOGIES U.S. II, LLC
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature Page – Sensata Technologies B.V. – Indenture]
SENSATA TECHNOLOGIES BERMUDA LTD.
By: /s/ Steve Reynolds
Name: Steve Reynolds
Title: Director
[Signature Page – Sensata Technologies B.V. – Indenture]
SENSATA TECHNOLOGIES HOLDING COMPANY US B.V.
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature Page – Sensata Technologies B.V. – Indenture]
SENSATA TECHNOLOGIES HOLDING COMPANY MEXICO B.V.
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature Page – Sensata Technologies B.V. – Indenture]
SENSATA TECHNOLOGIES US COÖERATIEF U.A.
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature Page – Sensata Technologies B.V. – Indenture]
SENSATA TECHNOLOGIES DE MÉXICO, S. DE R.L. DE C.V.
By: /s/ Santiago Sepulveda
Name: Santiago Sepulveda
Title: Attorney in fact
[Signature Page – Sensata Technologies B.V. – Indenture]
SENSATA TECHNOLOGIES JAPAN LIMITED
By: /s/ Akira Hayashi
Name: Akira Hayashi
Title: Representative Director
[Signature Page – Sensata Technologies B.V. – Indenture]
SENSATA TECHNOLOGIES BULGARIA EOOD (formerly known as SENSOR-NITE INDUSTRIAL EOOD)
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature Page – Sensata Technologies B.V. – Indenture]
SENSOR-NITE NV
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature Page – Sensata Technologies B.V. – Indenture]
Signed by Martha Sullivan (name of director)
for and on behalf of /s/ Martha Sullivan
ST SCHRADER HOLDING COMPANY UK LIMITED Director
[Signature Page – Sensata Technologies B.V. – Indenture]
ST AUGUST LUX COMPANY S.À.R.L.,
Société à responsablité limitée
Registered office: 6D route de Trèves, L-2633 Senningberg
Grand-Duchy of Luxembourg
Share capital: USD 25,000
R.C.S. Luxembourg: B 192229
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature Page – Sensata Technologies B.V. – Indenture]
ST AUGUST LUX INTERMEDIATE HOLDCO S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 25,000
R.C.S. Luxembourg: B 192214
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature Page – Sensata Technologies B.V. – Indenture]
AUGUST LUX HOLDING COMPANY S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 16,376
R.C.S. Luxembourg: B 167704
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature Page – Sensata Technologies B.V. – Indenture]
AUGUST BRAZIL HOLDING COMPANY
Société à responsabilité limitée
Registered office: 6D route de Trèves, L-2633 Senningberg
Grand-Duchy of Luxembourg
Share capital: USD 16,375
R.C.S. Luxembourg: B 168084
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature Page – Sensata Technologies B.V. – Indenture]
AUGUST LUXUK HOLDING COMPANY,
Société à responsabilité limitée
Registered office: 6D route de Trèves, L-2633 Senningberg
Grand-Duchy of Luxembourg
Share capital: USD 16,375
R.C.S. Luxembourg: B 167757
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature Page – Sensata Technologies B.V. – Indenture]
AUGUST FRANCE HOLDING COMPANY, S.A.S
By: /s/ Jean-Michel Bolmont
Name: Jean-Michel Bolmont
Title: Chairman
[Signature Page – Sensata Technologies B.V. – Indenture]
SENSATA-TECHNOLOGIES FRANCE S.A.S.
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature Page – Sensata Technologies B.V. – Indenture]
GIVEN under the Common Seal of
SENSATA FINANCE IRELAND LIMITED
and DELIVERED as a DEED:
/s/ Graeme Thompson
Graeme Thompson
/s/ Paul McCabe
Paul McCabe
[Signature Page – Sensata Technologies B.V. – Indenture]
Signed by Martha Sullivan (name of director)
for and on behalf of /s/ Martha Sullivan
AUGUST UK HOLDCO LIMITED Director
[Signature Page – Sensata Technologies B.V. – Indenture]
THE BANK OF NEW YORK MELLON, as Trustee, Registrar and Paying Agent
By: /s/ John T. Needham, Jr.
Name: John T. Needham, Jr.
Title: Vice President
[Signature Page – Sensata Technologies B.V. – Indenture]
EXHIBIT A
[Face of Note]
[Insert legends required by Indenture]
[Insert as appropriate:
144A CUSIP No.: 81725WAJ2
144A ISIN: US817WAJ27
Reg S CUSIP No.: N78840AL4
Reg S ISIN: USN78840AL45]
5.000% Senior Notes Due 2025
No. [A][S]-[•] $__
SENSATA TECHNOLOGIES B.V.
promise to pay to CEDE & CO. or registered assigns, the principal sum of ____________ DOLLARS [if the Note is a Global Note, add the following: (as revised by the Schedule of Increases and Decreases in Global Note, attached hereto)] on October 1, 2025.
Interest Payment Dates: April 1 and October 1, commencing October 1, 2015.
Additional provisions of this Note are set forth on the other side of this Note.
Record Dates: March 15 and September 15.
Dated: [●]
SENSATA TECHNOLOGIES B.V.
By:
Name:
Title:
Dated:
Dated: ____________________
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK MELLON, as Trustee
By:
Authorized Signatory
[Reverse of Note]
5.000% Senior Notes due 2025
Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
(1)INTEREST. Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Company”), promises to pay interest on the principal amount of this Note at 5.000% per annum from March 26, 2015 until maturity. The Company will pay interest, if any, semi-annually in arrears on April 1 and October 1 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from March 26, 2015 until the principal hereof is due. The first Interest Payment Date shall be October 1, 2015. The Company will pay interest on overdue principal at the rate borne by the Notes, and it shall pay interest on overdue installments of interest at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
(2)METHOD OF PAYMENT. The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the March 15 or September 15 next preceding the Interest Payment Date (whether or not a Business Day), even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Company will pay principal, premium, if any, and interest on Definitive Notes at the office of the Paying Agent. Such payment will be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
(3)PAYING AGENT AND REGISTRAR. Initially, The Bank of New York Mellon, as the Trustee, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.
(4)INDENTURE. The Company issued the Notes under the Indenture dated as of March 26, 2015 (the “Indenture”) among the Company, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all the terms and provisions of the Indenture, and Holders are referred to the Indenture for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
The Notes are unsecured senior obligations of the Company. This Note is one of the Initial Notes referred to in the Indenture. The Notes include the Initial Notes and any Additional Notes issued in exchange for Initial Notes or Additional Notes pursuant to the Indenture. The Initial Notes and any Additional Notes are treated as a single class of securities under the Indenture. The Indenture imposes certain limitations on the ability of the Company and its Subsidiaries to, among other things, incur Indebtedness, create or incur Liens and enter into sale and leaseback transactions. The Indenture also imposes limitations on the ability of the Company and each Guarantor to consolidate or merge with or into any other Person or convey, transfer or lease all or substantially all of its property.
To Guarantee the due and punctual payment of the principal and interest on the Notes and all other amounts payable by the Company under the Indenture and the Notes when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise,
according to the terms of the Notes and the Indenture, the Guarantors have, jointly and severally, unconditionally Guaranteed the obligations of the Company under the Notes on an unsecured senior basis pursuant to the terms of the Indenture.
(5)OPTIONAL REDEMPTION.
(a)Except pursuant to Section 3.07(d) or (e) of the Indenture, the Notes will not be optionally redeemable by the Company; provided, however, the Company may acquire the Notes by means other than an optional redemption.
(b)At any time and from time to time, upon not less than 30 nor more than 60 days’ notice to the Holders, the Company may redeem some or all of the Notes at a price calculated by the Company of 100% of the principal amount of the Notes redeemed plus the Applicable Premium, plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of Holders of record on the record date to receive interest due on the interest payment date).
(c)The Company may, at its option, redeem the Notes, in whole but not in part, at any time upon not less than 15 days’ nor more than 30 days’ notice to the Holders (which notice shall be irrevocable and given in accordance with Section 3.03 of the Indenture), at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the redemption date, premium, if any, and all Additional Amounts, if any, then due and which will become due on the date of redemption as a result of the redemption or otherwise, if the Company determines in good faith that the Company or any Guarantor is, or on the next date on which any amount would be payable in respect of the Notes, would be obligated to pay Additional Amounts in respect of the Notes pursuant to the terms and conditions thereof, which the Company or such Guarantor, as the case may be, cannot avoid by the use of reasonable measures available to it (including, without limitation, making payment through a Paying Agent located in another jurisdiction), as a result of:
(1)any change in, or amendment to, the laws or treaties (or any regulations, official guidance or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction affecting taxation which becomes effective on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction that arises after the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under the Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder); or
(2)any change in the official application, administration, or interpretation of the laws, treaties, regulations, official guidance or rulings of any Relevant Taxing Jurisdiction (including a holding, judgment, or order by a court of competent jurisdiction), on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction that arises after the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under the Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder).
Notwithstanding the foregoing, the Company may not redeem the Notes under this provision if a Relevant Taxing Jurisdiction changes and the Company is obligated to pay Additional Amounts as a result of a Change in Tax Law of such Relevant Taxing Jurisdiction which was officially announced at the time the latter became a Relevant Taxing Jurisdiction.
Notwithstanding the foregoing, no such notice of redemption will be given (a) earlier than 90 days prior to the earliest date on which the Company or any Guarantor, would be obliged to make such payment of Additional Amounts or withholding if a payment in respect
of the Notes or the relevant Note Guarantee, as the case may be, were then due and (b) unless at the time such notice is given, the obligation to pay Additional Amounts remains in effect.
(d)Except for redemption pursuant to clause (c) above, notices of optional redemption will be given at least 30 but not more than 60 days before the redemption date to each Holder of Notes to be redeemed in accordance with Section 12.02 of the Indenture, except that (x) redemption notices may be given more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture.
(6)MANDATORY REDEMPTION. The Company is not required to make any mandatory redemption or sinking fund payments with respect to the Notes.
(7)REPURCHASE AT THE OPTION OF HOLDER. If a Change of Control occurs, unless the Company at such time has given notice of redemption with respect to all outstanding Notes, each Holder will have the right to require the Company to repurchase all or any part (in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess thereof) of that Holder’s Notes pursuant to a change of control offer (the “Change of Control Offer”) on the terms set forth in the Indenture. In the Change of Control Offer, the Company will offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest on the Notes repurchased, to, but excluding, the Change of Control Payment Date. Within 30 days following any Change of Control, unless the Company at such time has given notice of redemption with respect to all outstanding Notes, the Company will give notice to each Holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is given.
(8)DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in minimum denominations of $2,000 (the “Minimum Dollar Denomination”) and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not register the transfer of or exchange any Note selected for redemption in whole or in part or subject to purchase in a Change of Control Offer, except the unredeemed or unpurchased portion of any Note being redeemed or purchased in part. Also, the Company need not exchange or register the transfer of any Notes for a period of 15 days before the day the Company gives notice of redemption of the Notes or makes a Change of Control Offer and ending at the close of business on the day notice of redemption is given or the Change of Control Offer is made.
(9)PERSONS DEEMED OWNERS. The registered Holder of a Note shall be treated as its owner for all purposes.
(10)AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent of the Company and Holders of a majority in aggregate principal amount of the then outstanding Notes, including Additional Notes, if any, voting as a single class, and any existing Default or Event or Default or compliance with any provision of the Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes, including Additional Notes, if any, voting as a single class. Without the consent of any Holder of a Note, the Indenture, the Notes or the Note Guarantees may be amended or supplemented:
(i)to cure any ambiguity, mistake, defect or inconsistency;
(ii)to provide for uncertificated Notes in addition to or in place of certificated Notes;
(iii)to provide for the assumption by a Successor Company or a successor company of a Guarantor, as applicable, of the Company’s or such Guarantor’s obligations under the Indenture;
(iv)to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights hereunder of any Holder;
(v)to secure the Notes;
(vi)to add a Note Guarantee;
(vii)to conform the text of the Indenture or the Notes to any provision of the “Description of Notes” included in the Offering Memorandum relating to the Notes;
(viii)to provide for the issuance of Additional Notes in accordance with the provisions set forth in the Indenture; or
(ix)to release a Guarantor from its Note Guarantee; provided that such release is in accordance with the applicable provisions of the Indenture;
provided that the Company has delivered to the Trustee an Opinion of Counsel and an Officers’ Certificate, each stating that such amendment or supplement complies with the provisions of the Indenture.
(11)DEFAULTS AND REMEDIES. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency with respect to the Company, any Subsidiary of the Company that is a Significant Subsidiary or any group of Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary, all outstanding Notes will become due and payable immediately without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Holders of a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may, on behalf of the Holders of all of the Notes, rescind an acceleration or waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of the principal of, premium, if any, or interest on the Notes or a covenant or provision of the Indenture which cannot be modified or amended without the consent of the Holder of each outstanding Note affected. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required, upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default and the remedial action the Company proposes to take in connection therewith.
(12)DISCHARGE AND DEFEASANCE. Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes, the Note Guarantees and the Indenture if the Company deposits with the Trustee money or U.S. Government Securities for the payment of principal of and interest on the Notes to redemption or maturity, as the case may be.
(13)TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.
(14)NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Company, the Parent or any Subsidiary, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
(15)AUTHENTICATION. This Note will not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
(16)ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(17)CUSIP NUMBERS, ISINS. The Company has caused CUSIP numbers and ISINs to be printed on the Notes, and the Trustee may use CUSIP numbers and ISINs in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption, and reliance may be placed only on the other identification numbers placed thereon.
(18)GOVERNING LAW THE LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES.
(19)JURISDICTION; WAIVER OF JURY TRIAL. (a) Each of the Company and the Guarantors has consented to the non-exclusive jurisdiction of any court of the State of New York or any U.S. federal court, in each case, sitting in the Borough of Manhattan, The City of New York, New York, United States, and any appellate court from any thereof in any action or proceeding arising out of or related to this Note, the Indenture or the Note Guarantees. Each of the Company and the Guarantors has appointed C T Corporation System located at 111 8th Avenue, New York, New York 10011 as its authorized agent upon which service of process may be served in any action or proceeding brought in any court of the State of New York or any U.S. federal court sitting in the Borough of Manhattan, The City of New York in connection with the Indenture, this Note or the Note Guarantees.
(b)EACH OF THE PARTIES TO THE INDENTURE HAS IRREVOCABLY WAIVED ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE INDENTURE, THIS NOTE, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(20)WAIVER OF IMMUNITIES. To the extent that the Company or any Guarantor may in any jurisdiction claim for itself or its assets immunity from a suit, execution, attachment, whether in aid of execution, before judgment or otherwise, or other legal process in connection with and as set out in the Indenture, this Note or the Note Guarantees and to the extent that in any jurisdiction there may be immunity attributed to the Company or the Guarantors or the Company’s or any Guarantor’s assets, whether or not claimed, the Company or any Guarantor, as applicable, has irrevocably agreed for the benefit of the Holders not to claim, and irrevocably waived, the immunity to the full extent permitted by law.
(21)CURRENCY RATE INDEMNITY The U.S. dollar is the sole currency of account and payment for all sums payable by the Company or any Guarantor under or in connection with the Notes, including damages. Any amount with respect to the Notes or the guarantees thereof 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 Company or any Guarantor or otherwise by any Holder or by the Trustee, in respect of any sum expressed to be due to it from the Company or any Guarantor will only constitute a discharge to the Company or any Guarantor 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.
The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:
Sensata Technologies B.V.,
c/o Sensata Technologies Inc.
529 Pleasant Street
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Financial Officer
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I)or (we) assign and transfer this Note to:
(Insert assignee’s legal name)
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Date: ___________________
Your signature:
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 4.15 of the Indenture, check the box below:
☐ Section 4.15
If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.15 of the Indenture, state the amount you elect to have purchased:
$
Date:
Your Signature: ___________________________
(Sign exactly as your name
appears on the face of this Note)
Tax Identification No.: ________________
Signature Guarantee*: __________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
SCHEDULE OF INCREASES AND DECREASES OF INTERESTS IN THE GLOBAL NOTE
[To be inserted for Rule 144A Global Note]
The following transfer or exchange of a part of this Rule 144A Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Rule 144A Global Note, or to reflect a redemption or repurchase of the Notes and cancellation, have been made:
| | | | | | | | | | | | | | |
| Date of Increase or Decrease | Amount of decrease in Principal Amount at Maturity of this Global Note | Amount of increase in Principal Amount at Maturity of this Global Note |
Principal Amount at Maturity of this Global Note following such decrease (or increase) | Signature of authorized officer of Trustee or Custodian |
[To be inserted for Regulation S Global Note]
The following transfer or exchange of a part of this Regulation S Global Note for an interest in another Global Note or for a Definitive Note or of other Restricted Global Notes or Definitive Note for an interest in this Regulation S Global Note, or to reflect a redemption or repurchase of the Notes and cancellation, have been made:
| | | | | | | | | | | | | | |
| Date of Increase or Decrease | Amount of decrease in Principal Amount at Maturity of this Global Note | Amount of increase in Principal Amount at Maturity of this Global Note |
Principal Amount at Maturity of this Global Note following such decrease (or increase) | Signature of authorized officer of Trustee or Custodian |
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Sensata Technologies B.V.
c/o Sensata Technologies, Inc.
529 Pleasant Street
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Administrative and Financial Officer
The Bank of New York Mellon
Corporate Trust Division
101 Barclay Street, 7th Floor East
New York, NY 10286
Facsimile No.: (212) 815-5390
Attention: Corporate Trust Division
Re: 5.000% Senior Notes due 2025
Reference is hereby made to the Indenture, dated as of March 26, 2015 (the “Indenture”), among Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands, as issuer (the “Company”), the Guarantors party thereto and The Bank of New York Mellon, a New York banking corporation, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
_____________________, (the “Transferor”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $______ in such Note[s] or interests (the “Transfer”), to ___________________(the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. __ Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.
2. __Check if Transferee will take delivery of a beneficial interest in a Legended Regulation S Global Note or a Restricted Definitive Note pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated,
the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Legended Regulation S Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.
3. __ Check and complete if Transferee will take delivery of a beneficial interest in a Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):
(a)such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;
or
(b)such Transfer is being effected to the Company or a subsidiary thereof;
or
(c)such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act;
or
(d)such Transfer is being effected to an Institutional Accredited Investor and pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Note or Restricted Definitive Notes and the requirements of the exemption claimed, which certification is supported by if such Transfer is in respect of a principal amount of Notes at the time of transfer of less than $100,000, an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the effect that such Transfer is in compliance with the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Notes and in the Indenture and the Securities Act.
4. __ Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a)__ Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
(b)__ Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
(c)__ Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company.
_______________________________________
Insert Name of Transferor
By:
Name:
Title:
Dated
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) __ a beneficial interest in the:
(i)___ 144A Global Note (CUSIP __________), or
(ii)___ Regulation S Global Note (CUSIP __________); or
(b) ___ a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) ___ a beneficial interest in the:
(iii)___ 144A Global Note (CUSIP __________), or
(iv)___ Regulation S Global Note (CUSIP __________), or
(v)___ Unrestricted Global Note (CUSIP __________); or
(b) ___ a Restricted Definitive Note; or
(c) ___ an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Sensata Technologies B.V.
c/o Sensata Technologies, Inc.
529 Pleasant Street
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Administrative and Financial Officer
The Bank of New York Mellon
Corporate Trust Division
101 Barclay Street, 7th Floor East
New York, NY 10286
Facsimile No.: (212) 815-5390
Attention: Corporate Trust Division
Re: 5.000% Senior Notes due 2025
Reference is hereby made to the Indenture, dated as of March 26, 2015 (the “Indenture”), among Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands, as issuer (the “Company”), the Guarantors party thereto and The Bank of New York Mellon, a New York banking corporation, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
(the “Owner”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $ (CUSIP ; ISIN ) in such Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note
(a)___ Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(b)___ Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(c)___ Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(d)___ Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes
(a)___ Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.
(b)___ Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE] 144A Global Note, Regulation S Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company.
__________________________________________
INSERT NAME OF TRANSFEROR
By:
Name:
Title:
Date: __________________
EXHIBIT D
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally Guaranteed, to the extent set forth in and subject to the provisions in the Indenture dated as of March 26, 2015 (as amended, modified or supplemented from time to time, the “Indenture”) among Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands, the guarantors party thereto, and The Bank of New York Mellon, a New York banking corporation, as trustee (the “Trustee”), (a) prompt payment of the principal of, premium, if any, and accrued and unpaid interest and defaulted interest, if any, on the Notes when due, whether at maturity, by acceleration, redemption or otherwise, and the prompt payment of interest on overdue principal, premium, if any, and interest and defaulted interest, if any, on the Notes (pursuant to Section 2.12 of the Indenture), if lawful (subject in all cases to any applicable grace periods provided in the Indenture and the Notes) when due, and all other obligations of the Company to the Holders or the Trustee under the Indenture and the Notes will be promptly paid in full, all in accordance with the terms of the Indenture and the Notes and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same will be promptly paid in full when due in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the Note Guarantee and the Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee (including Sections 12.08 and 12.09 of the Indenture on Governing Law and Jurisdiction, respectively). Each Holder of a Note, by accepting the same, agrees to and shall be bound by such provisions. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS HEREOF, each Guarantor has caused this Notation of Guarantee to be signed manually or by facsimile by its duly authorized officer.
[NAME OF GUARANTOR]
EXHIBIT E
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of , 20__ by and among (the “New Guarantor”), a subsidiary of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Company”), the Company, the existing Guarantors and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
WITNESSETH
WHEREAS, the Company and the existing Guarantors have heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified, the “Indenture”), dated as of March 26, 2015 providing for the issuance of 5.000% Senior Notes due 2025 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantor shall execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantor shall unconditionally Guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Company and the existing Guarantors are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Guarantor, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The New Guarantor hereby agrees, jointly and severally with all existing Guarantors (if any), to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture, and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Company, any parent entity of the Company or any Subsidiary, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to the New Guarantor shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. SUBMISSION TO JURISDICTION. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE IN RESPECT OF SUBMISSION TO JURISDICTION SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantee of the New Guarantor or this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
Dated: ___________, 20__
[NEW GUARANTOR]
By:
Name:
Title:
SENSATA TECHNOLOGIES B.V.
By:
Name:
Title:
[NEW GUARANTOR]
By:
Name:
Title:
[EXISTING GUARANTORS]
By:
Name:
Title:
THE BANK OF NEW YORK MELLON as Trustee
By:
Name:
Title:
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of April 24, 2015, among Sensata Technologies Holland B.V. (the “New Guarantor”), a subsidiary of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Company”), the Company, the existing Guarantors and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
WITNESSETH
WHEREAS, the Company and the existing Guarantors have heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified, the “Indenture”), dated as of March 26, 2015 providing for the issuance of 5.000% Senior Notes due 2025 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantor shall execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantor shall unconditionally Guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Company and the existing Guarantors are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Guarantor, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The New Guarantor hereby agrees, jointly and severally with all existing Guarantors (if any), to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture, and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Company, any parent entity of the Company or any Subsidiary, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to the New Guarantor shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be hound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. SUBMISSION TO JURISDICTION. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE IN RESPECT OF SUBMISSION TO JURISDICTION SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantee of the New Guarantor or this Supplemental Indenture.
[REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
SENSATA TECHNOLOGIES HOLLAND B.V.
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES B.V.
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES, INC.
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Chief Operating Officer
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES
MASSACHUSETTS INC.
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Chief Financial Officer
SENSATA TECHNOLOGIES U.S., LLC
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES U.S. II, LLC
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES BERMUDA LTD.
By: /s/ Steve Reynolds
Name: Steve Reynolds
Title: Director
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES HOLDING COMPANY US B.V.
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES HOLDING COMPANY MEXICO B.V.
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES US
COÖERATIEF U.A.
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES DE MÉXICO, S. DE R.L. DE C.V.
By: /s/ Santiago Sepulveda
Name: Santiago Sepulveda
Title: Attorney in fact
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES JAPAN LIMITED
By: /s/ Akira Hayashi
Name: Akira Hayashi
Title: Representative Director
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES BULGARIA EOOD (formerly known as SENSOR-NITE INDUSTRIAL EOOD)
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Supplemental Indenture]
SENSOR-NITE NV
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Supplemental Indenture]
Signed by Martha Sullivan (name of director)
for and on behalf of /s/ Martha Sullivan
ST SCHRADER HOLDING COMPANY UK LIMITED Director
[Signature page to Supplemental Indenture]
ST AUGUST LUX COMPANY S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 25,000
R.C.S. Luxembourg: B 192229
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Supplemental Indenture]
ST AUGUST LUX INTERMEDIATE HOLDCO S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 25,000
R.C.S. Luxembourg: B 192214
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Supplemental Indenture]
AUGUST LUX HOLDING COMPANY,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 16,376
R.C.S. Luxembourg: B 167704
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Supplemental Indenture]
AUGUST BRAZIL HOLDING COMPANY,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 16,375
R.C.S. Luxembourg: B 168084
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Supplemental Indenture]
AUGUST LUXUK HOLDING COMPANY,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 16,375
R.C.S. Luxembourg: B 167757
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Supplemental Indenture]
AUGUST FRANCE HOLDING COMPANY, S.A.S.
By: /s/ Jean-Michel Bolmont
Name: Jean-Michel Bolmont
Title: Chairman
[Signature page to Supplemental Indenture]
SENSATA-TECHNOLOGIES FRANCE S.A.S.
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Supplemental Indenture]
GIVEN under the Common Seal of
SENSATA FINANCE IRELAND LIMITED
and DELIVERED as a DEED:
/s/ Graeme Thompson
Graeme Thompson
/s/ Paul McCabe
Paul McCabe
[Signature page to Supplemental Indenture]
Signed by Martha Sullivan (name of director)
for and on behalf of /s/ Martha Sullivan
AUGUST UK HOLDCO LIMITED Director
THE BANK OF NEW YORK MELLON, as Trustee, Registrar and Paying Agent
By: /s/ Catherine F. Donohue
Name: Catherine F. Donohue
Title: Vice President
[Signature page to Supplemental Indenture]
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of April 24, 2015, among Sensata Technologies Malaysia Sdn. Bhd. (the “New Guarantor”), a subsidiary of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Company”), the Company, the existing Guarantors and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
WITNESSETH
WHEREAS, the Company and the existing Guarantors have heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified, the “Indenture”), dated as of March 26, 2015 providing for the issuance of 5.000% Senior Notes due 2025 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantor shall execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantor shall unconditionally Guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Company and the existing Guarantors are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Guarantor, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. DEFINED TERMS. Defined Minis used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The New Guarantor hereby agrees, jointly and severally with all existing Guarantors (if any), to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture, and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Company, any parent entity of the Company or any Subsidiary, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not he effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to the New Guarantor shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY. AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. SUBMISSION TO JURISDICTION. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE IN RESPECT OF SUBMISSION TO JURISDICTION SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantee of the New Guarantor or this Supplemental Indenture.
[REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY]
IN WITNESS WHEREOF, the parties hereto have caused this Supplement Indenture to be duly executed and attested, all as of the date first above written.
SENSATA TECHNOLOGIES MALAYSIA
SDN. BHD.
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES B.V.
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES, INC.
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Chief Operating Officer
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES MASSACHUSETTS, INC.
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Chief Financial Officer
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES U.S., LLC
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES U.S. II, LLC
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES BERMUDA LTD.
By: /s/ Steve Reynolds
Name: Steve Reynolds
Title: Director
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES HOLDING COMPANY US B.V.
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES HOLDING COMPANY MEXICO B.V.
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES US COÖERATIEF U.A.
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES DE MÉXICO, S. DE R.L. DE C.V.
By: /s/ Santiago Sepulveda
Name: Santiago Sepulveda
Title: Attorney-in-fact
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES JAPAN LIMITED
By: /s/ Akira Hayashi
Name: Akira Hayashi
Title: Representative Director
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES BULGARIA EOOD (formerly known as SENSOR-NITE INDUSTRIAL EOOD)
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Supplemental Indenture]
SENSOR-NITE NV
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Supplemental Indenture]
Signed by Martha Sullivan (name of director)
for and on behalf of /s/ Martha Sullivan
ST SCHRADER HOLDING COMPANY UK LIMITED Director
[Signature page to Supplemental Indenture]
ST AUGUST LUX COMPANY S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 25,000
R.C.S. Luxembourg: B 192229
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Supplemental Indenture]
ST AUGUST LUX INTERMEDIATE HOLDCO S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 25,000
R.C.S. Luxembourg: B 192214
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Supplemental Indenture]
AUGUST LUX HOLDING COMPANY,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 16,376
R.C.S. Luxembourg: B 167704
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Supplemental Indenture]
AUGUST BRAZIL HOLDING COMPANY,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 16,375
R.C.S. Luxembourg: B 168084
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Supplemental Indenture]
AUGUST LUXUK HOLDING S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 16,375
R.C.S. Luxembourg: B 167757
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Supplemental Indenture]
AUGUST FRANCE HOLDING COMPANY S.A.S.
By: /s/ Jean-Michel Bolmont
Name: Jean-Michel Bolmont
Title: Chairman
[Signature page to Supplemental Indenture]
SENSATA-TECHNOLOGIES FRANCE S.A.S.
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Supplemental Indenture]
GIVEN under the Common Seal of
SENSATA FINANCE IRELAND LIMITED
and DELIVERED as a DEED:
/s/ Graeme Thompson
Graeme Thompson
/s/ Paul McCabe
Paul McCabe
[Signature page to Supplemental Indenture]
Signed by Martha Sullivan (name of director)
for and on behalf of /s/ Martha Sullivan
AUGUST UK HOLDCO LIMITED Director
[Signature page to Supplemental Indenture]
THE BANK OF NEW YORK MELLON, as Trustee, Registrar and Paying Agent
By: /s/ Catherine F. Donohue
Name: Catherine F. Donohue
Title: Vice President
[Signature page to Supplemental Indenture]
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of June 30, 2015, among STI Holdco, Inc., a Delaware corporation (the “New Guarantor”), a subsidiary of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Company”), the Company, the existing Guarantors and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
WITNESSETH
WHEREAS, the Company and the existing Guarantors have heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified, the “Indenture”), dated as of March 26, 2015 providing for the issuance of 5.000% Senior Notes due 2025 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantor shall execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantor shall unconditionally Guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Company and the existing Guarantors are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Guarantor, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The New Guarantor hereby agrees, jointly and severally with all existing Guarantors (if any), to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture, and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Company, any parent entity of the Company or any Subsidiary, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to the New Guarantor shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. SUBMISSION TO JURISDICTION. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE IN RESPECT OF SUBMISSION TO JURISDICTION SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantee of the New Guarantor or this Supplemental Indenture.
[REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
STI HOLDCO, INC.
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES B.V.
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in Fact
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES, INC.
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Chief Operating Officer
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES
MASSACHUSETTS, INC.
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Chief Financial Officer
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES U.S., LLC
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES U.S. II, LLC
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES BERMUDA LTD.
By: /s/ Steve Reynolds
Name: Steve Reynolds
Title: Director
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES HOLDING COMPANY US B.V.
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES HOLDING
COMPANY MEXICO B.V.
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES US COÖPERATIEF U.A.
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES DE MÉXICO,
S. DE R.L. DE C.V.
By: /s/ Santiago Sepulveda
Name: Santiago Sepulveda
Title: Attorney-in-Fact
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES JAPAN LIMITED
By: /s/ Akira Hayashi
Name: Akira Hayashi
Title: Representative Director
SENSATA TECHNOLOGIES BULGARIA EOOD (formerly known as SENSOR-NITE INDUSTRIAL EOOD)
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Supplemental Indenture]
SENSOR-NITE NV
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Supplemental Indenture]
Signed by Martha Sullivan (name of director)
for and on behalf of /s/ Martha Sullivan
ST SCHRADER HOLDING COMPANY UK LIMITED Director
[Signature page to Supplemental Indenture]
ST AUGUST LUX COMPANY S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 25,000
R.C.S. Luxembourg: B 192229
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Supplemental Indenture]
ST AUGUST LUX INTERMEDIATE HOLDCO S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 25,000
R.C.S. Luxembourg: B 192214
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Supplemental Indenture]
AUGUST LUX HOLDING COMPANY,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 16,376
R.C.S. Luxembourg: B 167704
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Supplemental Indenture]
AUGUST BRAZIL HOLDING COMPANY,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 16,375
R.C.S. Luxembourg: B 168084
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Supplemental Indenture]
AUGUST LUXUK HOLDING S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 16,375
R.C.S. Luxembourg: B 167757
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Supplemental Indenture]
AUGUST FRANCE HOLDING COMPANY S.A.S.
By: /s/ Jean-Michel Bolmont
Name: Jean-Michel Bolmont
Title: Chairman
[Signature page to Supplemental Indenture]
SENSATA-TECHNOLOGIES FRANCE S.A.S.
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Supplemental Indenture]
GIVEN under the Common Seal of
SENSATA FINANCE IRELAND LIMITED
and DELIVERED as a DEED:
/s/ Paul Qualley
p.p. Goodbody Secretarial Limited Secretary
/s/ Paul McCabe
Paul McCabe
[Signature page to Supplemental Indenture]
Signed by Martha Sullivan (name of director)
for and on behalf of /s/ Martha Sullivan
AUGUST UK HOLDCO LIMITED Director
SENSATA TECHNOLOGIES HOLLAND B.V.
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Supplemental Indenture]
SENSATA TECHNOLOGIES MALAYSIA
SDN. BHD.
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature page to Supplemental Indenture]
THE BANK OF NEW YORK MELLON as Trustee
By: /s/ Catherine F. Donohue
Name: Catherine F. Donohue
Title: Vice President
[Signature page to Supplemental Indenture]
Execution Version
FOURTH SUPPLEMENTAL INDENTURE
FOURTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of November 27, 2015, among Sensata Technologies UK Financing Co. plc, CDI Netherlands B.V. and Sensata Finance Ireland II Limited (collectively, the “New Guarantors”), subsidiaries of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Company”), the Company, the existing Guarantors and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
WITNESSETH
WHEREAS, the Company and the existing Guarantors have heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified, the “Indenture”), dated as of March 26, 2015 providing for the issuance of 5.000% Senior Notes due 2025 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantors shall execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantors shall unconditionally Guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantees”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Company and the existing Guarantors are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Guarantors, the Company, the existing Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each of the New Guarantors hereby agrees, jointly and severally with all existing Guarantors, to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture, and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Company, any parent entity of the Company or any Subsidiary, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to the New Guarantors shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. JURISDICTION; WAIVER OF JURY TRIAL. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantees of the New Guarantors or this Supplemental Indenture.
[REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
SENSATA TECHNOLOGIES B.V., as the Issuer
By: /s/ Serife Demir
Name Serife Demir
Title: Attorney in fact
[Signature page to Fourth Supplemental Indenture]
Signed by Jeffrey Cote (name of director)
for and on behalf of
/s/ Jeffrey Cote
SENSATA TECHNOLOGIES UK FINANCING Director
CO. PLC, as a New Guarantor
[Signature page to Fourth Supplemental Indenture]
CDI NETHERLANDS B.V., as a New Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
[Signature page to Fourth Supplemental Indenture]
SIGNED AND DELIVERED as a DEED
for and on behalf of
SENSATA FINANCE IRELAND II LIMITED
as a New Guarantor,
by its lawfully appointed attorney: /s/ Graeme Thompson
Name: Graeme Thompson
Title: Attorney
in the presence of:
Louise Johnston
Signature of Witness
Solicitor
Occupation of Witness
North Well Quay Dublin 1
Address of Witness
[Signature page to Fourth Supplemental Indenture]
Signed by Martha Sullivan (name of director)
for and on behalf of /s/ Martha Sullivan
Director
AUGUST UK HOLDCO LIMITED,
as an Existing Guarantor
Signed by Martha Sullivan (name of director)
for and on behalf of /s/ Martha Sullivan
Director
ST SCHRADER HOLDING COMPANY UK LIMITED,
as an Existing Guarantor
[Signature page to Fourth Supplemental Indenture]
SENSATA TECHNOLOGIES FRANCE S.A.S.,
as an Existing Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: President (Président)
[Signature page to Fourth Supplemental Indenture]
AUGUST FRANCE HOLDING COMPANY
S.A.S., as an Existing Guarantor
By: /s/ Jean-Michel Bolmont
Name: Jean-Michel Bolmont
Title: President (Président)
[Signature page to Fourth Supplemental Indenture]
ST AUGUST LUX COMPANY S.À.R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Treves, L-2633
Senninberg
Grand Duchy of Luxembourg
Share capital: USD 25,000
R.C.S. Luxembourg: B 192229
as an Existing Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager
[Signature page to Fourth Supplemental Indenture]
ST AUGUST LUX INTERMEDIATE
HOLDCO S.À.R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Treves, L-2633
Senninberg
Grand Duchy of Luxembourg
Share capital: USD 25,000
R.C.S. Luxembourg: B 192214
as an Existing Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager
[Signature page to Fourth Supplemental Indenture]
AUGUST LUX HOLDING COMPANY,
Société à responsabilité limitée
Registered office: 6D, route de Treves, L-2633
Senninberg
Grand Duchy of Luxembourg
Share capital: USD 16,736
R.C.S. Luxembourg: B 167704
as an Existing Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager
[Signature page to Fourth Supplemental Indenture]
AUGUST BRAZIL HOLDING COMPANY
Société à responsabilité limitée
Registered office: 6D, route de Treves, L-2633
Senninberg
Grand Duchy of Luxembourg
Share capital: USD 16,735
R.C.S. Luxembourg: B 168084
as an Existing Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager
[Signature page to Fourth Supplemental Indenture]
AUGUST LUXUK HOLDING COMPANY,
Société à responsabilité limitée
Registered office: 6D, route de Treves, L-2633
Senninberg
Grand Duchy of Luxembourg
Share capital: USD 16,375 R.C.S. Luxembourg: B 167757
as an Existing Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager
[Signature page to Fourth Supplemental Indenture]
GIVEN under the COMMON SEAL of
SENSATA FINANCE IRELAND LIMITED
as an Existing Guarantor,
and DELIVERED as a DEED: /s/ Graeme Thompson
Graeme Thompson
Director
/s/ [illegible]
p.p. Goodbody Secretarial Limited
Secretary
[Signature page to Fourth Supplemental Indenture]
SENSATA TECHNOLOGIES, INC., as an
Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Chief Operating Officer
SENSATA TECHNOLOGIES MASSACHUSETTS, INC., as an Existing
Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Chief Financial Officer
SENSATA TECHNOLOGIES U.S. LLC,
as an Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Manager
SENSATA TECHNOLOGIES U.S. II, LLC, as
an Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Manager
STI HOLDCO, INC., as an Existing
Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature page to Fourth Supplemental Indenture]
SENSATA TECHNOLOGIES HOLDING
COMPANY US B.V., as an Existing Guarantor
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
SENSATA TECHNOLOGIES HOLLAND B.V., as an Existing Guarantor
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
SENSATA TECHNOLOGIES HOLDING
COMPANY MEXICO B.V., as an Existing
Guarantor
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
SENSATA TECHNOLOGIES US
COÖPERATIEF U.A, as an Existing Guarantor
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Fourth Supplemental Indenture]
SENSOR-NITE NV, as an Existing Guarantor
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Fourth Supplemental Indenture]
SENSATA TECHNOLOGIES BULGARIA EOOD (formerly known as Sensor-Nite Industrial EOOD)
By: /s/ Serife Demir
Name: Serife Demir
Title: Attorney in fact
[Signature page to Fourth Supplemental Indenture]
SENSATA TECHNOLOGIES BERMUDA LTD., as an Existing Guarantor
By: /s/ Steve Reynolds
Name: Steve Reynolds
Title: Director
[Signature page to Fourth Supplemental Indenture]
SENSATA TECHNOLOGIES DE MÉXICO,
S. DE R.L. DE C.V., as an Existing Guarantor
By: /s/ Santiago Sepulveda
Name: Santiago Sepulveda
[Signature page to Fourth Supplemental Indenture]
SENSATA TECHNOLOGIES JAPAN
LIMITED, as an Existing Guarantor
By: /s/ Xiaodong Ye
Name: Xiaodong Ye
Title: Representative Director
[Signature page to Fourth Supplemental Indenture]
SENSATA TECHNOLOGIES MALAYSIA
SDN, BHD., as an Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature page to Fourth Supplemental Indenture]
THE BANK OF NEW YORK MELLON, as
Trustee, Registrar and Paying Agent
By:/s/ Teresa Wyszomierski
Name: Teresa Wyszomierski
Title: Vice President
[Signature page to Fourth Supplemental Indenture]
FIFTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of February 24, 2016, among Custom Sensors & Technologies US Corporation, Custom Sensors & Technologies US, LLC, Custom Sensors & Technologies Newco, Ltd., Custom Sensors & Technologies, Inc., Kavlico Corporation, Crydom, Inc., Newall Electronics, Inc. and BEI North America, LLC (collectively, the “New Guarantors”), subsidiaries of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Company”), the Company, the existing Guarantors and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
WITNESSETH
WHEREAS, the Company and the existing Guarantors have heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified, the “Indenture”), dated as of March 26, 2015 providing for the issuance of 5.000% Senior Notes due 2025 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantors shall execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantors shall unconditionally Guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantees”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Company and the existing Guarantors are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Guarantors, the Company, the existing Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each of the New Guarantors hereby agrees, jointly and severally with all existing Guarantors, to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture, and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Company, any parent entity of the Company or any Subsidiary, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to the New Guarantors shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. JURISDICTION; WAIVER OF JURY TRIAL. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantees of the New Guarantors or this Supplemental Indenture.
[REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
SENSATA TECHNOLOGIES B.V., as the Issuer
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
[Signature page to Fifth Supplemental Indenture]
CUSTOM SENSORS & TECHNOLOGIES
US CORPORATION, as a New Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
CUSTOM SENSORS & TECHNOLOGIES
US, LLC, as a New Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
CUSTOM SENSORS & TECHNOLOGIES
INC., as a New Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
KAVLICO CORPORATION, as a New Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
CRYDOM, INC., as a New Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
[Signature page to Fifth Supplemental Indenture]
NEWALL ELECTRONICS, INC., as a New
Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
BEI NORTH AMERICA, LLC, as a New Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
Signed by Jeffrey Cote (name of director)
for and on behalf of /s/ Jeffrey Cote Director
CUSTOMS SENSORS & TECHNOLOGIES NEWCO, LTD.,
as a New Guarantor
[Signature page to Fifth Supplemental Indenture]
Signed by Jeffrey Cote (name of director)
for and on behalf of /s/ Jeffrey Cote
Director
SENSATA TECHNOLOGIES UK FINANCING CO. PLC,
as an Existing Guarantor
[Signature page to Fifth Supplemental Indenture]
Signed by Martha Sullivan (name of director)
for and on behalf of /s/ Martha Sullivan
AUGUST UK HOLDCO LIMITED Director
as an Existing Guarantor
Signed by Martha Sullivan (name of director)
for and on behalf of /s/ Martha Sullivan
Director
ST SCHRADER HOLDING COMPANY UK LIMITED,
as an Existing Guarantor
[Signature page to Fifth Supplemental Indenture]
AUGUST FRANCE HOLDING COMPANY
S.A.S., as an Existing Guarantor
By: /s/ Jean-Michel Bolmont
Name: Jean-Michel Bolmont
Title: President (Président)
[Signature page to Fifth Supplemental Indenture]
SENSATA TECHNOLOGIES FRANCE S.A.S.,
as an Existing Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: President (Président)
[Signature page to Fifth Supplemental Indenture]
ST AUGUST LUX COMPANY S.À.R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Treves, L-2633
Senninberg
Grand Duchy of Luxembourg
Share capital: USD 25,000
R.C.S. Luxembourg: B 192229
as an Existing Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Fifth Supplemental Indenture]
ST AUGUST LUX INTERMEDIATE HOLDCO
S.À.R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Treves, L-2633
Senninberg
Grand Duchy of Luxembourg
Share capital: USD 25,000
R.C.S. Luxembourg: B 192214
as an Existing Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Fifth Supplemental Indenture]
AUGUST LUX HOLDING COMPANY, S.À.R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Treves, L-2633
Senninberg
Grand Duchy of Luxembourg
Share capital: USD 16,376
R.C.S. Luxembourg: B 167704
as an Existing Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Fifth Supplemental Indenture]
AUGUST BRAZIL HOLDING COMPANY
S.À.R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Treves, L-2633
Senninberg
Grand Duchy of Luxembourg
Share capital: USD 16,375
R.C.S. Luxembourg: B 168084
as an Existing Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Fifth Supplemental Indenture]
AUGUST LUXUK HOLDING COMPANY
S.À.R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Treves, L-2633
Senninberg
Grand Duchy of Luxembourg
Share capital: USD 16,375
R.C.S. Luxembourg: B 167757
as an Existing Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Fifth Supplemental Indenture]
SENSATA FINANCE IRELAND LIMITED, as an Existing Guarantor
By: /s/ Graeme Thompson
Name: Graeme Thompson
Title: Director
SENSATA FINANCE IRELAND II
LIMITED, as an Existing Guarantor
By: /s/ Graeme Thompson
Name: Graeme Thompson
Title: Director
[Signature page to Fifth Supplemental Indenture]
SENSATA TECHNOLOGIES, INC., as an
Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Chief Operating Officer
SENSATA TECHNOLOGIES MASSACHUSETTS, INC., as an Existing
Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Chief Financial Officer
SENSATA TECHNOLOGIES U.S. LLC,
as an Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Manager
SENSATA TECHNOLOGIES U.S. II, LLC, as an Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Manager
STI HOLDCO, INC., as an Existing
Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature page to Fifth Supplemental Indenture]
SENSATA TECHNOLOGIES BULGARIA EOOD (formerly known as
Sensor-Nite Industrial EOOD), as an Existing Guarantor
By: /s/ Gerben Ensing
Name: Gerben Ensing
Title: Director
[Signature page to Fifth Supplemental Indenture]
SENSATA TECHNOLOGIES BERMUDA LTD., as an Existing Guarantor
By: /s/ Steve Reynolds
Name: Steven Reynolds
Title: Director
[Signature page to Fifth Supplemental Indenture]
SENSATA TECHNOLOGIES HOLDING
COMPANY US B.V., as an Existing Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
SENSATA TECHNOLOGIES HOLLAND B.V., as an Existing Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
SENSATA TECHNOLOGIES HOLDING
COMPANY MEXICO B.V., as an Existing
Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
SENSATA TECHNOLOGIES US
COÖPERATIEF U.A, as an Existing Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
CDI NETHERLANDS B.V., as an
Existing Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
[Signature page to Fifth Supplemental Indenture]
SENSOR-NITE NV, as an Existing Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
[Signature page to Fifth Supplemental Indenture]
SENSATA TECHNOLOGIES DE MÉXICO,
S. DE R.L. DE C.V., as an Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature page to Fifth Supplemental Indenture]
SENSATA TECHNOLOGIES JAPAN LIMITED, as an Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature page to Fifth Supplemental Indenture]
SENSATA TECHNOLOGIES MALAYSIA, as
an Existing Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature page to Fifth Supplemental Indenture]
THE BANK OF NEW YORK MELLON, as
Trustee, Registrar and Paying Agent
By: /s/ Teresa Wyszomierski
Name: Teresa Wyszomierski
Title: Vice President
[Signature page to Fifth Supplemental Indenture]
SIXTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of October 10, 2017, among SENSATA TECHNOLOGIES B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Issuer”), each of the Guarantors under the Indenture referred to below (the “Guarantors”), and THE BANK OF NEW YORK MELLON, as Trustee under the Indenture referred to below (the “Trustee”).
WITNESSETH:
WHEREAS the Issuer has heretofore executed and delivered to the Trustee an indenture dated as of March 26, 2015 (as amended, supplemented or otherwise modified to date, the “Indenture”), by and among the Issuer, the Guarantors and the Trustee, providing for the issuance of 5.000% Senior Notes due 2025 of the Issuer (the “Notes”);
WHEREAS, upon the terms and subject to the conditions set forth in that certain Consent Solicitation Statement dated October 2, 2017 (as amended and/or supplemented to date, the “Consent Solicitation Statement”), the Issuer solicited the consents of the Holders of the Notes to the amendments to the Indenture described in the Consent Solicitation Statement and set forth in Section 2 of this Supplemental Indenture (the “Proposed Amendments”);
WHEREAS, in accordance with Section 9.02(a) of the Indenture, the approval by written consent of the Holders of at least a majority of the aggregate principal amount of the Notes outstanding as of September 2, 2017 (the “Record Date”), which is the record date fixed by the Issuer in accordance with Section 9.04 of the Indenture, of which Record Date the Trustee has been duly notified in writing by the Issuer in accordance with Section 9.04, is sufficient to approve the aforesaid Proposed Amendments in accordance with the Indenture;
WHEREAS, the Holders of at least a majority of the aggregate principal amount of the Notes outstanding as of the Record Date (the “Requisite Consent”) have delivered consents approving the Proposed Amendments and the execution of this Supplemental Indenture, which such consents have not been withdrawn or revoked;
WHEREAS, pursuant to Section 9.02(a) of the Indenture, the Issuer and the Guarantors desire to execute this Supplemental Indenture in order to give effect to the Proposed Amendments, as provided hereinafter (subject to the conditions set forth in Section 3 below);
WHEREAS, all conditions precedent set forth in the Consent Solicitation Statement and the Indenture to the execution and delivery of this Supplemental Indenture by the Issuer, the Guarantors and the Trustee have been satisfied, and all things necessary have been done to make this Supplemental Indenture, when executed and delivered by the Issuer and the Guarantors, the legal, valid and binding agreement of the Issuer and the Guarantors; and
WHEREAS, the Issuer and the Guarantors have requested that the Trustee execute and deliver this Supplemental Indenture;
NOW, THEREFORE in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties to this Supplemental Indenture hereby agree as follows:
SECTION 1. Definitions. For all purposes of this Supplemental Indenture, except as otherwise herein expressly provided or unless the context otherwise requires: (i) the terms and expressions used herein shall have the same meanings as corresponding terms and expressions used in the Indenture; and (ii) 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.
SECTION 2. Amendments. The Indenture is hereby amended as follows:
(a) The definition of “Change of Control” set forth in Section 1.01 of the Indenture (Definitions) is hereby amended and restated in its entirety as follows:
“Change of Control” means the occurrence of any of the following:
(1) the sale, lease, transfer or other conveyance, in one or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person; or
(2) the Company becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company or any entity of which it is a Subsidiary; provided that so long as the Company is a Subsidiary of Parent, no Person or group shall be deemed to be or become a beneficial owner, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company or any entity of which it is a Subsidiary, as applicable, unless such Person or group shall be or become, directly or indirectly, a beneficial owner of more than 50% of the total voting power of the Voting Stock of Parent.
(b) All references in the Indenture and any Global Note representing the Notes, as amended by Section 2 hereof, to any of the provisions modified as provided herein, or to terms defined in such provisions, shall also be deemed modified in accordance with the terms of this Supplemental Indenture.
SECTION 3. Effectiveness of Proposed Amendments. This Supplemental Indenture shall be effective as a binding agreement upon execution hereof by the Issuer, the Guarantors and the Trustee; provided, however, that the Proposed Amendments set forth in Section 2 hereof shall not become effective and operative until the Issuer’s delivery of an Officers’ Certificate to the Trustee confirming that the Issuer has paid the Consent Fee (as defined in the Consent Solicitation Statement) to the consenting Holders of Notes in accordance with the Consent Solicitation Statement (it being understood the Proposed Amendments shall become immediately and fully effective and operative upon delivery of such notice of payment). If (a) the Consent Fee has not been paid on or prior to the earlier of (i) the date of the consummation of the Re-Domiciliation Transaction (as defined in the Consent Solicitation Statement) and (ii) March 29, 2018, or (b) at any time following the execution of this Supplemental Indenture, the Issuer notifies the Trustee in writing that the Issuer no longer wishes to give effect to the Proposed Amendments and does not intend to pay the Consent Fee at any time, then this Supplemental Indenture shall, from and after, in the case of clause (a) above, the earlier of the dates, and in the case of clause (b) above, the date of the Issuer’s delivery of such notice to the Trustee, become and be null and void ab initio. The Issuer shall be under no obligation to pay the Consent Fee in the event the Issuer no longer wishes to give effect to the Proposed Amendments.
SECTION 4. Ratification of Indenture; Supplemental Indenture Part of Indenture. Except as expressly waived, amended or otherwise modified 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.
SECTION 5. Governing Law. This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York, but without giving effect to applicable principles of conflicts of laws to the extent that the application of the laws of another jurisdiction would be required thereby.
SECTION 6. Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made by the Issuer.
SECTION 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. Delivery of an executed counterpart of a signature page to this Supplemental Indenture by facsimile or other electronic transmission (i.e., a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart thereof.
SECTION 8. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction thereof.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
SENSATA TECHNOLOGIES B.V.,
as the Issuer
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
[Signature page to Sixth Supplemental Indenture re: 5.000% Senior Notes]
CUSTOM SENSORS & TECHNOLOGIES
US CORPORATION, as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
CUSTOM SENSORS & TECHNOLOGIES
US, LLC, as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
CUSTOM SENSORS & TECHNOLOGIES,
INC., as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
KAVLICO CORPORATION, as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
CRYDOM, INC., as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
NEWALL ELECTRONICS, INC., as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
[Signature page to Sixth Supplemental Indenture re: 5.000% Senior Notes]
BEI NORTH AMERICA, LLC, as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
Signed by Jeffrey Cote (name of director)
for and on behalf of /s/ Jeffrey Cote
CUSTOM SENSORS & TECHNOLOGIES NEWCO, LTD., Director
as Guarantor
[Signature page to Sixth Supplemental Indenture re: 5.000% Senior Notes]
Signed by Jeffrey Cote (name of director)
for and on behalf of /s/ Jeffrey Cote
SENSATA TECHNOLOGIES UK FINANCING CO. PLC, Director
as Guarantor
[Signature page to Sixth Supplemental Indenture re: 5.000% Senior Notes]
Signed by Martha Sullivan (name of director)
for and on behalf of /s/ Martha Sullivan
AUGUST UK HOLDCO LIMITED, Director
as Guarantor
Signed by Martha Sullivan (name of director)
for and on behalf of /s/ Martha Sullivan
ST SCHRADER HOLDING COMPANY UK LIMITED, Director
as Guarantor
[Signature page to Sixth Supplemental Indenture re: 5.000% Senior Notes]
AUGUST FRANCE HOLDING COMPANY S.A.S., as Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: President (Président)
[Signature page to Sixth Supplemental Indenture re: 5.000% Senior Notes]
SENSATA TECHNOLOGIES FRANCE S.A.S., as Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: President (Président)
[Signature page to Sixth Supplemental Indenture re: 5.000% Senior Notes]
ST AUGUST LUX COMPANY S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
Senningerberg
Grand-Duchy of Luxembourg
Share capital: USD 25,000
R.C.S. Luxembourg: B 192229
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Sixth Supplemental Indenture re: 5.000% Senior Notes]
ST AUGUST LUX INTERMEDIATE HOLDCO S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
SenningerBerg
Grand-Duchy of Luxembourg
Share capital: USD 25,000
R.C.S. Luxembourg: B 192214
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Sixth Supplemental Indenture re: 5.000% Senior Notes]
AUGUST LUX HOLDING COMPANY S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
SenningerBerg
Grand-Duchy of Luxembourg
Share capital: USD 16,376
R.C.S. Luxembourg: B 167704
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Sixth Supplemental Indenture re: 5.000% Senior Notes]
AUGUST BRAZIL HOLDING COMPANY S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
SenningerBerg
Grand-Duchy of Luxembourg
Share capital: USD 16,375
R.C.S. Luxembourg: B 168084
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Sixth Supplemental Indenture re: 5.000% Senior Notes]
AUGUST LUXUK HOLDING S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633
SenningerBerg
Grand-Duchy of Luxembourg
Share capital: USD 16,375
R.C.S. Luxembourg: B 167757
as Guarantor
By: /s/ Jim Kirslis
Name: Jim Kirslis
Title: Manager (Class A)
[Signature page to Sixth Supplemental Indenture re: 5.000% Senior Notes]
SENSATA FINANCE IRELAND LIMITED, as Guarantor
By: /s/ Graeme Thompson
Name: Graeme Thompson
Title: Director
SENSATA FINANCE IRELAND II LIMITED, as Guarantor
By: /s/ Graeme Thompson
Name: Graeme Thompson
Title: Director
[Signature page to Sixth Supplemental Indenture re: 5.000% Senior Notes]
SENSATA TECHNOLOGIES, INC., as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Chief Operating Officer
SENSATA TECHNOLOGIES U.S., LLC., as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Manager
SENSATA TECHNOLOGIES U.S. II, LLC., as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Manager
STI HOLDCO, INC., as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature page to Sixth Supplemental Indenture re: 5.000% Senior Notes]
SENSATA TECHNOLOGIES BULGARIA EOOD (formerly known as Sensor-Nite Industrial EOOD), as Guarantor
By: /s/ Gerrit Ensing
Name: Gerrit Ensing
Title: Director
[Signature page to Sixth Supplemental Indenture re: 5.000% Senior Notes]
SENSATA TECHNOLOGIES BERMUDA LTD., as Guarantor
By: /s/ Steven Reynolds
Name: Steven Reynolds
Title: Director
[Signature page to Sixth Supplemental Indenture re: 5.000% Senior Notes]
SENSATA TECHNOLOGIES HOLDING, COMPANY US B.V., as Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
SENSATA TECHNOLOGIES HOLLAND B.V., as Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
SENSATA TECHNOLOGIES HOLDING, COMPANY MEXICO B.V., as Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
SENSATA TECHNOLOGIES US COÖPERATIEF U.A., as Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
CDI NETHERLANDS B.V., as Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
[Signature page to Sixth Supplemental Indenture re: 5.000% Senior Notes]
SENSOR-NITE NV, as Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
[Signature page to Sixth Supplemental Indenture re: 5.000% Senior Notes]
SENSATA TECHNOLOGIES DE MÉXICO, S. DE R.L. DE C.V., as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature page to Sixth Supplemental Indenture re: 5.000% Senior Notes]
SENSATA TECHNOLOGIES JAPAN LIMITED, as Guarantor
By: /s/ Yann Etienvre
Name: Yann Etienvre
Title: Director
[Signature page to Sixth Supplemental Indenture re: 5.000% Senior Notes]
SENSATA TECHNOLOGIES MALAYSIA, as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
[Signature page to Sixth Supplemental Indenture re: 5.000% Senior Notes]
THE BANK OF NEW YORK MELLON, as Trustee, Registrar and Paying Agent
By: /s/ Teresa Wyszomierski
Name: Teresa Wyszomierski
Title: Vice President
[Signature page to Sixth Supplemental Indenture re: 5.000% Senior Notes]
SEVENTH SUPPLEMENTAL INDENTURE
SEVENTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of May 24, 2021, among GIGAVAC, LLC (the “New US Guarantor”), a subsidiary of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Issuer”), Sensata Technologies Malta Ltd (the “New Maltese Guarantor”), a subsidiary of the Issuer, Sensata Malta Holding Ltd (the “New Maltese Holdco Guarantor” and, together with the New Maltese Guarantor and the New US Guarantor, the “New Guarantors”), a subsidiary of the Issuer, the Issuer, the existing Guarantors and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Issuer and certain of its Subsidiaries have heretofore executed and delivered to the Trustee an indenture, dated as of March 26, 2015 (as amended, supplemented or otherwise modified, the “Indenture”), providing for the issuance by the Issuer of 5.000% Senior Notes due 2025 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantors shall execute and deliver to the Trustee a supplemental indenture pursuant to which each New Guarantor shall unconditionally Guarantee all of the Issuer’s obligations under the Notes and the Indenture on the terms and conditions set forth herein and therein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Issuer and the existing Guarantors are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, each New Guarantor, the Issuer, the existing Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture, and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Issuer, any parent entity of the Issuer or any Subsidiary, as such, will have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to each New Guarantor shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. JURISDICTION; WAIVER OF JURY TRIAL. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantee of each New Guarantor or this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
GIGAVAC, LLC, as the New US Guarantor
By: Sensata Technologies, Inc., its sole member
By: /s/ Frank E. DeVita
Name: Frank E. DeVita
Title: Treasurer
SENSATA TECHNOLOGIES MALTA LTD, as the New Maltese Guarantor
By: /s/ Shannon M. Votava
Name: Shannon M. Votava, Esq.
Title: Director
SENSATA MALTA HOLDING LTD, as the New Maltese Subsidiary Guarantor
By: /s/ Shannon M. Votava
Name: Shannon M. Votava, Esq.
Title: Director
SENSATA TECHNOLOGIES B.V., as the Issuer
By: /s/ Gerrit H. Ensing
Name: Gerrit H. Ensing
Title: Director
[Signature page to Seventh Supplemental Indenture]
SENSATA TECHNOLOGIES, INC.
BEI NORTH AMERICA LLC
CRYDOM, INC.
CUSTOM SENSORS & TECHNOLOGIES, INC.
CUSTOM SENSORS & TECHNOLOGIES US CORPORATION
CUSTOM SENSORS & TECHNOLOGIES US LLC
KAVLICO CORPORATION
NEWALL ELECTRONICS INC., each as a
Guarantor
By: /s/ Paul Vasington
Name: Paul Vasington
Title: EVP and Chief Financial Officer
SENSATA TECHNOLOGIES US, LLC
SENSATA TECHNOLOGIES US II, LLC, each as a Guarantor
By: /s/ Paul Vasington
Name: Paul Vasington
Title: Manager
STI HOLDCO, INC., as a Guarantor
By /s/ Paul Vasington
Name: Paul Vasington
Title: Director
[Signature page to Seventh Supplemental Indenture]
CDI NETHERLANDS B.V.
SENSATA TECHNOLOGIES HOLDING COMPANY MEXICO, B.V.
SENSATA TECHNOLOGIES HOLLAND B.V., each as a Guarantor
By: /s/ Gerrit H. Ensing
Name: Gerrit H. Ensing
Title: Director
SENSATA TECHNOLOGIES BULGARIA EOOD, as a Guarantor
By: /s/ Gerrit H. Ensing
Name: Gerrit H. Ensing
Title: Director
[Signature page to Seventh Supplemental Indenture]
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita______________ |
AUGUST UK HOLDCO LIMITED, as a Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita______________ |
CUSTOM SENSORS & TECHNOLOGIES NEWCO LTD., as a Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita______________ |
SENSATA TECHNOLOGIES UK FINANCING CO. PLC, as a Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita______________ |
ST SCHRADER HOLDING COMPANY UK LIMITED, as a Guarantor | Director |
[Signature page to Seventh Supplemental Indenture]
SENSATA TECHNOLOGIES BERMUDA
LTD., as a Guarantor
By: /s/ George Verras
Name: George Verras
Title: Director
[Signature page to Seventh Supplemental Indenture]
SENSATA TECHNOLOGIES JAPAN
LIMITED, as a Guarantor
By: /s/ Song Changhwan
Name: Song Changhwan
Title: Representative Director
[Signature page to Seventh Supplemental Indenture]
AUGUST BRAZIL HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 168084,
as a Guarantor
By: /s/ Joseph Barberia
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST BRAZIL HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 168084,
as a Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager (Class B)
[Signature page to Seventh Supplemental Indenture]
AUGUST LUX HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167704,
as a Guarantor
By /s/ Joseph Barberia
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST LUX HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167704,
as a Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager (Class B)
[Signature page to Seventh Supplemental Indenture]
AUGUST LUXUK HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167757.
as a Guarantor
By /s/ Joseph Barberia
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST LUXUK HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167757.
as a Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager (Class B)
[Signature page to Seventh Supplemental Indenture]
ST AUGUST LUX COMPANY S.A.R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192229,
as a Guarantor
By /s/ Joseph Barberia
Name: Joseph Barberia
Title: Manager (Class A)
ST AUGUST LUX COMPANY S.A.R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192229,
as a Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager (Class B)
[Signature page to Seventh Supplemental Indenture]
ST AUGUST LUX INTERMEDIATE HOLDCO
S.A.R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192214,
as a Guarantor
By: /s/ Joseph Barberia
Name: Joseph Barberia
Title: Manager (Class A)
ST AUGUST LUX INTERMEDIATE HOLDCO
S.A.R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192214,
as a Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager (Class B)
[Signature page to Seventh Supplemental Indenture]
THE BANK OF NEW YORK MELLON, as Trustee
By: /s/ Wanda Camacho
Name: Wanda Camacho
Title: Vice President
[Signature page to Seventh Supplemental Indenture]
EIGHTH SUPPLEMENTAL INDENTURE
EIGHTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of October 24, 2022, among Dynapower Company LLC, a Delaware limited liability company (“Dynapower”) and an indirect subsidiary of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Issuer”), Xirgo Technologies, LLC, a Delaware limited liability company (“Xirgo”) and an indirect subsidiary of the Issuer, SmartWitness USA, LLC, an Illinois limited liability company (“SmartWitness” and, together with Dynapower and Xirgo, the “New Guarantors” and each a “New Guarantor”) and an indirect subsidiary of the Issuer, the Issuer, the existing Guarantors and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Issuer and certain of its Subsidiaries have heretofore executed and delivered to the Trustee an indenture, dated as of March 26, 2015 (as amended, supplemented or otherwise modified, the “Indenture”), providing for the issuance by the Issuer of 5.000% Senior Notes due 2025 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantors shall execute and deliver to the Trustee a supplemental indenture pursuant to which each New Guarantor shall unconditionally Guarantee all of the Issuer’s obligations under the Notes and the Indenture on the terms and conditions set forth herein and therein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Issuer and the existing Guarantors are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, each New Guarantor, the Issuer, the existing Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture, and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Issuer, any parent entity of the Issuer or any Subsidiary, as such, will have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Indenture or the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to each New Guarantor shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. JURISDICTION; WAIVER OF JURY TRIAL. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantee of each New Guarantor or this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
DYNAPOWER COMPANY LLC, as a New Guarantor
By: DP Acquisition Corporation, its sole member
By: /s/ Frank E. DeVita__________________
Name: Frank E. DeVita
Title: Treasurer
XIRGO TECHNOLOGIES, LLC, as a New Guarantor
By: Xirgo Technologies Intermediate Holdings,
LLC, its sole member
By: Sensata Technologies, Inc., its managing
member
By: /s/ Frank E. DeVita_______________
Name: Frank E. DeVita
Title: Treasurer
SMARTWITNESS USA, LLC, as a New Guarantor
By: SmartWitness Holdings, Inc., its sole member
By: /s/ Frank E. DeVita__________________
Name: Frank E. DeVita
Title: Treasurer
SENSATA TECHNOLOGIES B.V., as the Issuer
By: /s/ Maria G. Freve__________________
Name: Maria G. Freve
Title: Director
[Signature Page to Supplemental Indenture - 2025 Notes]
STI HOLDCO, INC.
SENSATA TECHNOLOGIES, INC.
BEI NORTH AMERICA, LLC
CRYDOM, INC.
CUSTOM SENSORS & TECHNOLOGIES, INC.
CUSTOM SENSORS & TECHNOLOGIES US CORPORATION
CUSTOM SENSORS & TECHNOLOGIES US LLC
GIGAVAC, LLC
KAVLICO CORPORATION
NEWALL ELECTRONICS INC., each as a Guarantor
By: /s/ Frank E. DeVita__________________
Name: Frank E. DeVita
Title: Treasurer
[Signature Page to Supplemental Indenture - 2025 Notes]
CDI NETHERLANDS B.V.
SENSATA TECHNOLOGIES HOLDING COMPANY MEXICO, B.V.
SENSATA TECHNOLOGIES HOLLAND B.V., each as a Guarantor
By: /s/ Maria G. Freve__________________
Name: Maria G. Freve
Title: Director
[Signature Page to Supplemental Indenture - 2025 Notes]
SENSATA TECHNOLOGIES BULGARIA EOOD, as a Guarantor
By: /s/ Frank E. DeVita__________________
Name: Frank E. DeVita
Title: Director
[Signature Page to Supplemental Indenture - 2025 Notes]
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita_________________ |
AUGUST UK HOLDCO LIMITED, as a Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita_________________ |
CUSTOM SENSORS & TECHNOLOGIES NEWCO LTD., as a Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita_________________ |
SENSATA TECHNOLOGIES UK FINANCING CO. PLC, as a Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita_________________ |
ST SCHRADER HOLDING COMPANY UK LIMITED, as a Guarantor | Director |
[Signature Page to Supplemental Indenture - 2025 Notes]
AUGUST BRAZIL HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 168084,
as a Guarantor
By: /s/ Joseph Barberia__________________
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST BRAZIL HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 168084,
as a Guarantor
By: /s/ Dylan Davies__________________
Name: Dylan Davies
Title: Manager (Class B)
[Signature Page to Supplemental Indenture - 2025 Notes]
AUGUST LUX HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167704,
as a Guarantor
By: /s/ Joseph Barberia__________________
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST LUX HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167704,
as a Guarantor
By: /s/ Dylan Davies__________________
Name: Dylan Davies
Title: Manager (Class B)
[Signature Page to Supplemental Indenture - 2025 Notes]
AUGUST LUXUK HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167757,
as a Guarantor
By: /s/ Joseph Barberia__________________
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST LUXUK HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167757,
as a Guarantor
By: /s/ Dylan Davies__________________
Name: Dylan Davies
Title: Manager (Class B)
[Signature Page to Supplemental Indenture - 2025 Notes]
ST AUGUST LUX COMPANY S.À R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192229,
as a Guarantor
By: /s/ Joseph Barberia__________________
Name: Joseph Barberia
Title: Manager (Class A)
ST AUGUST LUX COMPANY S.À R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192229,
as a Guarantor
By: /s/ Dylan Davies__________________
Name: Dylan Davies
Title: Manager (Class B)
[Signature Page to Supplemental Indenture - 2025 Notes]
ST AUGUST LUX INTERMEDIATE HOLDCO S.À R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192214,
as a Guarantor
By: /s/ Joseph Barberia__________________
Name: Joseph Barberia
Title: Manager (Class A)
ST AUGUST LUX INTERMEDIATE HOLDCO S.À R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192214,
as a Guarantor
By: /s/ Dylan Davies__________________
Name: Dylan Davies
Title: Manager (Class B)
[Signature Page to Supplemental Indenture - 2025 Notes]
SENSATA TECHNOLOGIES JAPAN LIMITED, as a Guarantor
By: /s/ Maria Gonzalez Freve_______________
Name: Maria Gonzalez Freve
Title: Representative Director
[Signature Page to Supplemental Indenture - 2025 Notes]
SENSATA MALTA HOLDING LTD.
SENSATA TECHNOLOGIES MALTA LTD., each as a Guarantor
By: /s/ Maria G. Freve__________________
Name: Maria G. Freve
Title: Director
[Signature Page to Supplemental Indenture - 2025 Notes]
THE BANK OF NEW YORK MELLON, as Trustee
By: /s/ Teresa H. Wyszomierski_______________
Name: Teresa H. Wyszomierski
Title: Vice President
[Signature Page to Supplemental Indenture - 2025 Notes]
SENSATA TECHNOLOGIES, INC.
AND
THE GUARANTORS NAMED HEREIN
$450,000,000
4.375% SENIOR NOTES DUE 2030
___________________
INDENTURE
Dated as of September 20, 2019
___________________
THE BANK OF NEW YORK MELLON
Trustee
___________________
TABLE OF CONTENTS
Page
| | | | | | | | |
| ARTICLE 1 |
| DEFINITIONS AND INCORPORATION BY REFERENCE |
| Section 1.01 | Definitions. | 1 |
| Section 1.02 | Other Definitions. | 22 |
| Section 1.03 | Incorporation by Reference of Certain Provisions and Defined Terms in the Trust Indenture Act. | 22 |
| Section 1.04 | Rules of Construction. | 23 |
| | |
| ARTICLE 2 |
| THE NOTES |
| Section 2.01 | Form and Dating. | 23 |
| Section 2.02 | Execution and Authentication. | 25 |
| Section 2.03 | Agents. | 25 |
| Section 2.04 | Paying Agent to Hold Money in Trust. | 26 |
| Section 2.05 | Holder Lists. | 26 |
| Section 2.06 | Transfer and Exchange. | 26 |
| Section 2.07 | Replacement Notes. | 38 |
| Section 2.08 | Outstanding Notes. | 38 |
| Section 2.09 | Treasury Notes. | 39 |
| Section 2.10 | Temporary Notes. | 39 |
| Section 2.11 | Cancellation. | 39 |
| Section 2.12 | Defaulted Interest. | 39 |
| Section 2.13 | CUSIP Numbers and ISIN Numbers. | 40 |
| | |
| ARTICLE 3 |
| REDEMPTION AND PREPAYMENT |
| Section 3.01 | Notices to Trustee. | 40 |
| Section 3.02 | Selection of Notes to Be Redeemed. | 40 |
| Section 3.03 | Notice of Optional Redemption. | 41 |
| Section 3.04 | Effect of Notice of Redemption. | 41 |
| Section 3.05 | Deposit of Redemption Price. | 42 |
| Section 3.06 | Notes Redeemed in Part. | 42 |
| Section 3.07 | Optional Redemption. | 42 |
| | |
| | | | | | | | |
| ARTICLE 4 |
| COVENANTS |
| Section 4.01 | Payment of Notes. | 44 |
| Section 4.02 | Maintenance of Office or Agency. | 48 |
| Section 4.03 | Reports. | 48 |
| Section 4.04 | Compliance Certificate. | 50 |
| Section 4.05 | Corporate Existence. | 50 |
| Section 4.06 | [Intentionally Omitted]. | 51 |
| Section 4.07 | [Intentionally Omitted]. | 51 |
| Section 4.08 | Limitation on Sale and Lease‑Back Transactions. | 51 |
| Section 4.09 | Limitation on Subsidiary Debt. | 51 |
| Section 4.10 | [Intentionally Omitted]. | 54 |
| Section 4.11 | [Intentionally Omitted]. | 54 |
| Section 4.12 | Limitation on Liens. | 54 |
| Section 4.13 | Business Activities. | 54 |
| Section 4.14 | Payment of Taxes and Other Claims. | 54 |
| Section 4.15 | Offer to Repurchase upon Change of Control. | 55 |
| Section 4.16 | Payments for Consent. | 56 |
| Section 4.17 | Additional Guarantees. | 56 |
| Section 4.18 | [Intentionally Omitted]. | 57 |
| Section 4.19 | Suspension of Guarantees Upon Change in Ratings. | 57 |
| Section 4.20 | Compliance with Laws. | 57 |
| Section 4.21 | Waiver of Stay, Extension or Usury Laws. | 57 |
| | |
| ARTICLE 5 |
| SUCCESSORS |
| Section 5.01 | Merger, Consolidation, or Sale of Assets. | 58 |
| | |
| ARTICLE 6 |
| DEFAULTS AND REMEDIES |
| Section 6.01 | Events of Default. | 59 |
| Section 6.02 | Acceleration. | 61 |
| Section 6.03 | Other Remedies. | 62 |
| Section 6.04 | Waiver of Past Defaults. | 63 |
| Section 6.05 | Control by Majority. | 63 |
| Section 6.06 | Limitation on Suits. | 63 |
| Section 6.07 | Rights of Holders of Notes to Receive Payment. | 64 |
| Section 6.08 | Collection Suit by Trustee. | 64 |
| Section 6.09 | Trustee May File Proofs of Claim. | 64 |
| Section 6.10 | Priorities. | 64 |
| | | | | | | | |
| Section 6.11 | Undertaking for Costs. | 65 |
| | |
| ARTICLE 7 |
| TRUSTEE |
| Section 7.01 | Duties of Trustee. | 65 |
| Section 7.02 | Rights of Trustee. | 66 |
| Section 7.03 | Individual Rights of Trustee. | 67 |
| Section 7.04 | Trustee’s Disclaimer. | 68 |
| Section 7.05 | Notice of Defaults. | 68 |
| Section 7.06 | [Intentionally Omitted]. | 68 |
| Section 7.07 | Compensation and Indemnity. | 68 |
| Section 7.08 | Replacement of Trustee. | 69 |
| Section 7.09 | Successor Trustee by Merger, Etc. | 70 |
| Section 7.10 | Eligibility; Disqualification. | 70 |
| Section 7.11 | Preferential Collection of Claims Against the Issuer. | 70 |
| | |
| ARTICLE 8 |
| LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
| Section 8.01 | Option to Effect Legal Defeasance or Covenant Defeasance. | 70 |
| Section 8.02 | Legal Defeasance and Discharge. | 70 |
| Section 8.03 | Covenant Defeasance. | 71 |
| Section 8.04 | Conditions to Legal or Covenant Defeasance. | 72 |
| Section 8.05 | Deposited Money and U.S. Government Securities to Be Held in Trust; Other Miscellaneous Provisions. | 73 |
| Section 8.06 | Repayment to the Issuer. | 73 |
| Section 8.07 | Reinstatement. | 74 |
| | |
| ARTICLE 9 |
| AMENDMENT, SUPPLEMENT AND WAIVER |
| Section 9.01 | Without Consent of Holders of Notes. | 74 |
| Section 9.02 | With Consent of Holders of Notes. | 75 |
| Section 9.03 | [Intentionally Omitted]. | 76 |
| Section 9.04 | Revocation and Effect of Consents. | 76 |
| Section 9.05 | Notation on or Exchange of Notes. | 77 |
| Section 9.06 | Trustee to Sign Amendments, Etc. | 77 |
| | |
| | | | | | | | |
| ARTICLE 10 |
| GUARANTEES |
| Section 10.01 | Guarantee. | 77 |
| Section 10.02 | Limitation on Guarantor Liability. | 78 |
| Section 10.03 | Execution and Delivery of Guarantee. | 79 |
| Section 10.04 | Guarantors May Consolidate, Etc., on Certain Terms. | 79 |
| Section 10.05 | Releases. | 80 |
| | |
| ARTICLE 11 |
| SATISFACTION AND DISCHARGE |
| Section 11.01 | Satisfaction and Discharge. | 80 |
| Section 11.02 | Application of Trust Money. | 81 |
| | |
| ARTICLE 12 |
| MISCELLANEOUS |
| Section 12.01 | [Intentionally Omitted]. | 82 |
| Section 12.02 | Notices. | 82 |
| Section 12.03 | Communication by Holders of Notes with Other Holders of Notes. | 83 |
| Section 12.04 | Certificate and Opinion as to Conditions Precedent. | 83 |
| Section 12.05 | Statements Required in Certificate or Opinion. | 84 |
| Section 12.06 | Rules by Trustee and Agents. | 84 |
| Section 12.07 | No Personal Liability of Directors, Officers, Employees and Stockholders. | 84 |
| Section 12.08 | Governing Law. | 84 |
| Section 12.09 | Jurisdiction; Waiver of Jury Trial. | 84 |
| Section 12.10 | Waiver of Immunities. | 85 |
| Section 12.11 | Currency Rate Indemnity. | 85 |
| Section 12.12 | Successors. | 85 |
| Section 12.13 | Severability. | 85 |
| Section 12.14 | Counterpart Originals. | 86 |
| Section 12.15 | Table of Contents, Headings, Etc. | 86 |
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF NOTATION OF GUARANTEE
Exhibit E FORM OF SUPPLEMENTAL INDENTURE
INDENTURE dated as of September 20, 2019 among Sensata Technologies, Inc. a Delaware corporation (the “Issuer”), the Guarantors (as defined herein) and The Bank of New York Mellon, a New York banking corporation, as Trustee. The Issuer is an indirect wholly owned subsidiary of Sensata Technologies Holding plc (“Parent”) and an indirect wholly owned subsidiary of Sensata Technologies B.V. (“STBV”) on the Issue Date.
The Issuer, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined herein) of (a) the $450,000,000 aggregate principal amount of the Issuer’s 4.375% Senior Notes due 2030 (the “Initial Notes”) and (b) any Additional Notes (as defined herein) that may be issued after the date hereof (all such securities in clauses (a) and (b) being referred to collectively as the “Notes”):
Article 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
“144A Global Note” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will initially be issued in a denomination equal to the outstanding principal amount at maturity of the Notes initially sold in reliance on Rule 144A.
“2023 Notes” means the $500,000,000 aggregate principal amount of 4.875% Senior Notes due 2023 issued by STBV and Guaranteed by the Issuer and certain other of STBV’s Subsidiaries.
“2024 Notes” means the $400,000,000 aggregate principal amount of 5.625% Senior Notes due 2024 issued by STBV and Guaranteed by the Issuer and certain other of STBV’s Subsidiaries.
“2025 Notes” means the $700,000,000 aggregate principal amount of 5.00% Senior Notes due 2025 issued by STBV and Guaranteed by the Issuer and certain other of STBV’s Subsidiaries.
“2026 Notes” means the $750,000,000 aggregate principal amount of 6.250% Senior Notes due 2026 issued by STUK and Guaranteed by STBV, the Issuer and certain other of STBV’s Subsidiaries.
“Adjusted Treasury Rate” means, with respect to any redemption date:
(1) the yield that represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the Remaining Life, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined and the Adjusted Treasury Rate shall be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month); or
(2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
The Adjusted Treasury Rate shall be calculated by the Issuer on the third Business Day preceding the redemption date.
“Additional Notes” means additional Notes (other than the Initial Notes) issued under this Indenture after the Issue Date in accordance with Sections 2.02 and 4.09 hereof, as part of the same series as the Initial Notes.
“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” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), 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.
“Agent” means any Registrar, co-registrar, Paying Agent, transfer agent, additional paying agent or other agent appointed hereunder.
“Aggregate Debt” means the sum of the following as of the date of determination: (1) the sum of the then outstanding aggregate principal amount of (a) the Indebtedness of STBV and its Subsidiaries incurred after the Issue Date and secured by Liens not permitted by Section 4.12(a) and (b) Indebtedness of STBV and its Subsidiaries secured by a Lien under the Credit Agreement that is outstanding on the Issue Date less the amount of such Indebtedness that has subsequently been repaid; (2) the then outstanding aggregate principal amount of all Subsidiary Debt incurred after the Issue Date and not permitted by Section 4.09(b); provided that any such Subsidiary Debt will be excluded from this clause (2) to the extent that such Subsidiary Debt is included in clause (1) or (3) of this definition; and (3) the then existing Attributable Liens of STBV and its Subsidiaries in respect of sale and lease-back transactions entered into after the Issue Date pursuant to Section 4.08(b); provided that any such Attributable Liens will be excluded from this clause (3) to the extent that the Indebtedness relating thereto is included in clause (1) or (2) of this definition.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the relevant Depositary that apply to such transfer or exchange.
“Attributable Liens” means in connection with a sale and lease-back transaction the lesser of: (1) the fair market value of the assets subject to such transaction, as determined in good faith by STBV’s Board of Directors; and (2) the present value (discounted at a rate of 10% per annum compounded monthly) of the obligations of the lessee for rental payments during the shorter of the term of the related lease or the period through the first date on which STBV or the applicable Subsidiary may terminate the lease.
“Bankruptcy Law” means (i) Title 11, United States Code or any similar U.S. federal or state law for the relief of debtors or the administration or liquidation of debtors’ estates for the benefit of their creditors, (ii) the Dutch Bankruptcy Law or any similar Dutch federal or
state law for the relief of debtors or the administration or liquidation of debtors’ estates for the benefit of their creditors and (iii) any other similar federal or local law for the relief of debtors or the administration or liquidation of debtors’ estates for the benefit of their creditors in any other applicable jurisdiction, now or hereinafter in effect.
“Beneficial Owner” or “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” will 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,” “Beneficially Owned” and “Beneficial Ownership” 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 having only one general partner, the board of directors of the general partner of the partnership;
(3) with respect to a limited liability company, the conseil de gérance, the conseil d’administration, the managing member or members or any controlling committee of managing members or other governing body thereof; and
(4) with respect to any other Person, the board or committee of such Person serving a similar function.
“Business Day” means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York are authorized or required by law to close.
“Capital Lease” 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 such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP (except for temporary treatment of construction related expenditures under ASC 840-40-15-5, which will ultimately be treated as operating leases upon a sale lease-back transaction).
“Capital Stock” means:
(1) in the case of a corporation, capital stock, shares or share capital;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock;
(3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
(4) 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.
“Cash Equivalents” means any of the following:
(1) readily marketable obligations issued or directly and fully guaranteed or insured by the United States, any state, commonwealth or territory of the United States or any agency or instrumentality thereof, having (i) one of the three highest ratings from either Moody’s or S&P and (ii) maturities of not more than two years from the date of acquisition thereof; provided that the full faith and credit of the United States is pledged in support thereof;
(2) time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) is a lender under the Credit Agreement or (ii)(A) is organized under the laws of the United States, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof, the District of Columbia or the Commonwealth of Puerto Rico and is a member of the Federal Reserve System and (B) has combined capital and surplus of at least $250,000,000 (any such bank in the foregoing clauses (i) or (ii) being an “Approved Domestic Bank”), in each case with maturities of not more than one year from the date of acquisition thereof;
(3) commercial paper and variable or fixed rate notes issued by an Approved Domestic Bank (or by the parent company thereof) or any variable rate note issued by, or guaranteed by a domestic corporation rated “A-2” (or the equivalent thereof) or better by S&P or “P-2” (or the equivalent thereof) or better by Moody’s, in each case with maturities of not more than one year from the date of acquisition thereof;
(4) repurchase agreements entered into by any Person with a bank or trust company or recognized securities dealer (including any lender under the Credit Agreement), in each case, having capital and surplus in excess of $250,000,000 for direct obligations issued by or fully guaranteed or insured by the government or any agency or instrumentality of the United States;
(5) investments, classified in accordance with GAAP as current assets of STBV or any of its Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions having capital of at least $250,000,000 and the portfolios of which are limited such that 95% of such investments are of the character, quality and maturity described in clauses (1), (2), (3), or (4) of this definition;
(6) solely with respect to STBV and any Foreign Subsidiary, non-U.S. Dollar denominated (i) certificates of deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Person maintains its chief executive office and principal place of business, provided such country is a member of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least “A-2” or the equivalent thereof or from Moody’s is at least “P-2” or the equivalent thereof (any such bank being an “Approved Foreign Bank”) and maturing within one year of the date of
acquisition and (ii) equivalents of demand deposit accounts which are maintained with an Approved Foreign Bank; and
(7) readily marketable obligations issued or directly and fully guaranteed or insured by the government or any agency or instrumentality of the United Kingdom, the Netherlands or any member nation of the European Union whose legal tender is the euro and which are denominated in euro or any other foreign currency comparable in credit quality and tenor to those referred to above and customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Subsidiary organized in such jurisdiction, having (i) one of the three highest ratings from either Moody’s or S&P and (ii) maturities of not more than one year from the date of acquisition thereof; provided that the full faith and credit of the United Kingdom, the Netherlands or any such member nation of the European Union is pledged in support thereof.
“Change of Control” means the occurrence of any of the following:
(1) the sale, lease, transfer or other conveyance, in one or a series of related transactions, of all or substantially all of the assets of STBV and its Subsidiaries, taken as a whole, to any Person; or
(2) STBV or the Issuer, as applicable, becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Issuer or STBV or any entity of which the Issuer or STBV is a Subsidiary; provided that so long as STBV or the Issuer, as applicable, is a Subsidiary of Parent, no Person or group shall be deemed to be or become a beneficial owner, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of STBV or the Issuer or any entity of which the Issuer or STBV is a Subsidiary, as applicable, unless such Person or group shall be or become, directly or indirectly, a beneficial owner of more than 50% of the total voting power of the Voting Stock of Parent.
“Clearstream” means Clearstream Banking, S.A. and any successor thereto.
“Code” means the United States Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to the Code are to the Code, as in effect on the Issue Date, and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.
“Commission” means the U.S. Securities and Exchange Commission.
“Comparable Treasury Issue” means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Notes, calculated as if the maturity date of such Notes were the applicable First Par Call Date
(the “Remaining Life”), that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the Remaining Life of such Notes.
“Comparable Treasury Price” means, for any redemption date, (1) the average of four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations the average of all such quotations.
“Consolidated Depreciation and Amortization Expense” means, with respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees, and other non-cash charges (excluding any non-cash item that represents an accrual or reserve for a cash expenditure for a future period) of such Person and its Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.
“Consolidated Interest Expense” means, with respect to any Person for any period, the sum, without duplication, of: (a) consolidated interest expense of such Person and its Subsidiaries for such period (including amortization of original issue discount, non-cash interest payments (other than imputed interest as a result of purchase accounting), commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing, the interest component of Capital Leases, net payments (if any) pursuant to interest rate Hedging Obligations (any net receipts pursuant to such interest rate Hedging Obligations shall be included as a reduction to Consolidated Interest Expense), but excluding amortization of deferred financing fees or expensing of any bridge or other financing fees, and any loss on the early extinguishment of Indebtedness, in each case, relating to the Specified Financings) and (b) consolidated capitalized interest of such Person and its Subsidiaries for such period, whether paid or accrued and less (c) interest income actually received or receivable in cash for such period; provided, however, that Securitization Fees shall be deemed not to constitute Consolidated Interest Expense.
“Consolidated Net Income” means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided, however, that
(1) any net after-tax extraordinary, unusual or nonrecurring gains or losses (including, without limitation, severance, relocation, signing bonus, transition and other restructuring costs and litigation settlements or losses) shall be excluded;
(2) the Net Income for such period shall not include the cumulative effect of a change in accounting principle(s) during such period;
(3) any net after-tax gains or losses attributable to asset dispositions other than in the ordinary course of business (as determined in good faith by the Board of Directors of STBV) and any gain (or loss) realized upon the sale or other disposition of any Capital Stock of any Person shall be excluded;
(4) the Net Income for such period of any Person that is not a Subsidiary of such Person, or that is accounted for by the equity method of accounting, shall be excluded; provided that, to the extent not already included, Consolidated Net Income of such Person shall be (A) increased by the amount of
dividends or other distributions that are actually paid in cash (or to the extent converted into cash) to the referent Person or a Subsidiary thereof in respect of such period and (B) decreased by the amount of any equity of STBV in a net loss of any such Person for such period to the extent STBV has funded such net loss;
(5) [reserved];
(6) non-cash compensation charges, including any such charges arising from stock options, restricted stock grants or other equity-incentive programs shall be excluded;
(7) any net after-tax gains or losses (less all fees and expenses or charges relating thereto) attributable to the early extinguishment or conversion of Indebtedness or Hedging Obligations shall be excluded;
(8) unrealized gains and losses from Hedging Obligations or “embedded derivatives” that require the same accounting treatment as Hedging Obligations shall be excluded;
(9) the effect of any non-cash items resulting from any amortization, write-up, write-down, write-off or impairment of assets (including intangible assets, goodwill and deferred financing costs but excluding inventory) in connection with any future acquisition, merger, consolidation or similar transaction or any other non-cash impairment charges incurred subsequent to the Issue Date resulting from the application of SFAS Nos. 142 and 144 (excluding any such non-cash item to the extent that it represents an accrual of or reserve for cash expenditures in any future period except to the extent such item is subsequently reversed) shall be excluded;
(10) any purchase accounting adjustments (including the impact of writing up inventory or deferred revenue at fair value), amortization, impairments, write-offs, or non-cash charges with respect to purchase accounting with respect to any acquisition, merger, consolidation, disposition or similar transaction, shall be excluded;
(11) any reasonable expenses or charges incurred in connection with any Equity Offering, investment, acquisition, recapitalization or Indebtedness permitted to be incurred under this Indenture (in each case whether or not consummated) or the offering of the Notes, shall be excluded;
(12) the amount of any restructuring charges or reserves (which, for the avoidance of doubt, shall include retention, severance, systems establishment cost, excess pension charges, contract termination costs, including future lease commitments, and costs to consolidate facilities and relocate employees), shall be excluded; and
(13) any gains or losses relating to foreign currency transactions, including those relating to mark-to-market of Indebtedness denominated in foreign currencies resulting from the application of GAAP, including pursuant to FAS No. 52, shall be excluded.
To the extent not already included in Consolidated Net Income of such Person and its Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net
Income shall include the amount of proceeds received from business interruption insurance and reimbursements of any expenses or charges that are covered by indemnification or other reimbursement provisions in connection with any sale, conveyance, transfer or disposition of assets permitted under this Indenture.
“Contingent Obligations” means, with respect to any Person, any obligation of such Person Guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, or (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.
“Corporate Trust Office of the Trustee” will be the address of the Trustee specified in Section 12.02 hereof or such other address as to which the Trustee may give notice to the Issuer.
“Credit Agreement Borrower” means (i) prior to the effectiveness of the Credit Facilities Amendment, STBV and STFC and (ii) from and after the effectiveness of the Credit Facilities Amendment (if it occurs), the Issuer.
“Credit Agreement” means that certain credit agreement, dated as of May 12, 2011, among the Credit Agreement Borrower, the “Parent” (as defined therein), Morgan Stanley Senior Funding, Inc., as Administrative Agent, and the financial institutions from time to time party thereto, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, as amended, restated, supplemented, modified, renewed, refunded, replaced (whether at maturity or thereafter) or refinanced from time to time in one or more agreements or indentures (in each case with the same or new lenders or institutional investors), including any agreement adding or changing the borrower or guarantor or extending the maturity thereof or otherwise restructuring all or any portion of the Indebtedness thereunder or increasing the amount loaned or issued thereunder or altering the maturity thereof and including the Credit Facilities Amendment (to the extent applicable).
“Credit Facilities Amendment” means that certain amendment to the Credit Agreement intended to be entered into by STBV, the Issuer and certain other subsidiaries of STBV substantially contemporaneously with the issuance of the Notes, pursuant to which, among other things, (i) STBV and STFC will cease to be borrowers under the Credit Agreement, the Issuer will become the sole borrower under the Credit Agreement and assume substantially all of STBV’s and STFC’s obligations thereunder, (ii) STBV will become a guarantor of the Issuer’s obligations under the Credit Agreement, and (iii) the Released Guarantors will be released from their Guarantees thereunder
“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.
“Definitive Note” means a certificated non-Global Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Increases and Decreases in the Global Note” attached thereto.
“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.01(d) hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture, including DTC, Euroclear and/or Clearstream.
“Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person which, by its terms (or by the terms of any security into which it is convertible or for which it is putable or exchangeable), or upon the happening of any event, matures or is mandatorily redeemable (other than as a result of a change of control or asset sale), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than as a result of a change of control or asset sale), in whole or in part, in each case prior to the date that is 91 days after the earlier of the final maturity date of the Notes or the date the Notes are no longer outstanding; provided, however, that if such Capital Stock is issued to any plan for the benefit of employees of STBV or any of its Subsidiaries or transferred by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by STBV or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
“DTC” means The Depository Trust Company.
“EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication,
(1) the provision for taxes based on income or profits, plus franchise or similar taxes, of such Person for such period deducted in computing Consolidated Net Income, plus
(2) Consolidated Interest Expense of such Person for such period to the extent the same was deducted in calculating such Consolidated Net Income, plus
(3) Consolidated Depreciation and Amortization Expense of such Person for such period to the extent such depreciation and amortization were deducted in computing Consolidated Net Income, plus
(4) any other non-cash charges, expenses or losses (including any impairment charges and the impact of purchase accounting, including, but not limited to, the amortization of inventory step-up) reducing Consolidated Net Income for such period (excluding any such charge that represents an accrual or reserve for a cash expenditure for a future period), plus
(5) any net gain or loss resulting from Hedging Obligations relating to currency exchange risk, plus
(6) the amount of any expense for minority interests consisting of Subsidiary income attributable to minority equity interests of third parties in any Guarantor deducted (and not added back) in such period in calculating Consolidated Net Income, plus
(7) Securitization Fees to the extent deducted in calculating Consolidated Net Income for such period, plus
(8) any net after-tax income or loss from discontinued operations and any net after-tax gains or losses on disposal of discontinued operations, less
(9) non-cash items increasing Consolidated Net Income of such Person for such period (excluding any items which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges made in any prior period).
If acquisitions, dispositions, mergers or consolidations (as determined in accordance with GAAP) have been made by STBV or any Subsidiary of STBV during the Measurement Period or subsequent to such Measurement Period and on or prior to or simultaneously with the date on which EBITDA is calculated (the “Calculation Date”), then EBITDA shall be calculated on a pro forma basis assuming that all such acquisitions, dispositions, mergers or consolidations had occurred on the first day of such Measurement Period.
For purposes of this definition, whenever pro forma effect is to be given to an acquisition, disposition, merger or consolidation and the amount of income or earnings relating thereto, the pro forma calculations shall be determined in good faith by a responsible financial or accounting Officer of STBV and shall comply with the requirements of Rule 11-02 of Regulation S-X promulgated by the Commission, except that such pro forma calculations may include operating expense reductions for such period resulting from the transaction which is being given pro forma effect that (A) have been realized or (B) for which the steps necessary for realization have been taken (or are taken concurrently with such transaction) or (C) for which the steps necessary for realization are reasonably expected to be taken within the twenty-four month period following such transaction and, in each case, including, but not limited to, (a) reduction in personnel expenses, (b) reduction of costs related to administrative functions, (c) reduction of costs related to leased or owned properties and (d) reductions from the consolidation of operations and streamlining of corporate overhead; provided that, in each case, such adjustments are set forth in a certificate signed by a responsible financial or accounting Officer of STBV which states (i) the amount of such adjustment or adjustments and (ii) in the case of items (B) or (C) above, that such adjustment or adjustments are based on the reasonable good faith beliefs of the Officer executing such certificate at the time of such execution.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“Equity Offering” means any public or private sale of common stock or Preferred Stock of the Issuer or any of its direct or indirect parent companies (excluding Disqualified Stock), other than (i) public offerings with respect to common stock of the Issuer or of any of its direct or indirect parent companies registered on Form S-4 or Form S-8 or (ii) an issuance to any Subsidiary of STBV.
“Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system, and any successor thereto.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Foreign Subsidiary” means, with respect to any Person, any Subsidiary of such Person that is not organized or existing under the laws of the United States, any state thereof or the District of Columbia.
“GAAP” means generally accepted accounting principles in the United States which are in effect on the Issue Date; provided, however, that leases shall continue to be classified and accounted for on a basis consistent with that reflected in the financial statements of STBV for the fiscal year ended December 31, 2018 for purposes of all covenant compliance determinations and all other pertinent determinations and purposes under this Indenture, notwithstanding any change in GAAP relating thereto, including with respect to ASC 842. Notwithstanding the foregoing any reports or financial information required to be delivered pursuant to Section 4.03 shall be prepared in accordance with GAAP as in effect on the date thereof. At any time after the adoption of IFRS by STBV for its financial statements and reports for all financial reporting purposes, STBV may elect to apply IFRS for all purposes of this Indenture, in lieu of GAAP, and, upon any such election, references herein to GAAP shall be construed to mean IFRS as in effect from time to time; provided that (1) any such election once made shall be irrevocable and shall only be made once, except as may be necessary to comply with applicable law, rule or regulation, (2) all financial statements and reports required to be provided after such election pursuant to this Indenture shall be prepared on the basis of IFRS and (3) from and after such election, all ratios, computations and other determinations (A) based on GAAP contained in this Indenture shall be computed in conformity with IFRS and (B) in this Indenture that require the application of GAAP for periods that include fiscal quarters ended prior to STBV’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP. STBV shall give notice of any election to the Trustee and the Holders of Notes within 15 days of such election. For the avoidance of doubt, solely making an election (without any other action) referred to in this definition will not be treated as an incurrence of Indebtedness. For purposes of this description, the term “consolidated” with respect to any Person means such Person consolidated with its Subsidiaries.
“Global Note Legend” means the legend set forth in Section 2.06(g)(ii) hereof, which is required to be placed on all Global Notes issued under this Indenture.
“Global Notes” means the 144A Global Note and the Regulation S Global Note.
“Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness or other obligations. When used as a verb, “Guarantee” shall have a corresponding meaning.
“Guarantees Release” means the release of the Guarantees of the Released Guarantors under the Credit Agreement and the release of the Guarantees of the Released Guarantors with respect to the Existing Notes.
“Guarantor” means any Person that provides a Note Guarantee, either on the Issue Date or after the Issue Date in accordance with the terms of this Indenture; provided that upon the release and discharge of such Person from its Note Guarantee in accordance with this Indenture, such Person shall cease to be a Guarantor. On the Issue Date, the Guarantors will be STBV and each Subsidiary of STBV (other than the Issuer) that is a guarantor under the Credit Agreement, giving effect to the Credit Facilities Amendment.
“Hedging Obligations” means, with respect to any Person, the obligations of such Person under:
(1) currency exchange, interest rate or commodity swap agreements, currency exchange, interest rate or commodity cap agreements and currency exchange, interest rate or commodity collar agreements; and
(2) other agreements or arrangements designed to manage, hedge or protect such Person with respect to fluctuations in currency exchange, interest rates or commodity prices.
“Holder” means a Person in whose name a Note is registered in the register maintained by the Registrar.
“IFRS” means the International Financial Reporting Standards as issued by the International Accounting Standards Board.
“Indebtedness” means, with respect to any Person,
(a) any indebtedness (including principal and premium) of such Person, whether or not contingent:
(i) in respect of borrowed money,
(ii) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or, without duplication, reimbursement agreements in respect thereof),
(iii) representing the deferred and unpaid balance of the purchase price of any property (including Capital Leases), except (a) any such balance that constitutes a trade payable or similar obligation to a trade creditor in each case accrued in the ordinary course of business and (b) any earn-out obligations, until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP, or
(iv) representing any interest rate Hedging Obligations,
if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon the balance sheet (excluding the notes thereto) of such Person prepared in accordance with GAAP;
(b) Disqualified Stock of such Person;
(c) to the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on the Indebtedness of another Person (other than by endorsement of negotiable instruments for collection in the ordinary course of business); and
(d) to the extent not otherwise included, Indebtedness of another Person secured by a Lien on any asset owned by such Person (whether or not such Indebtedness is assumed by such Person);
provided, however, that notwithstanding the foregoing, Indebtedness shall be deemed not to include (a) Contingent Obligations incurred in the normal course of business and not in respect of borrowed money, (b) obligations under or in respect of Securitization Financings, or (c) items that would appear as a liability on a balance sheet prepared in accordance with GAAP as a result of the application of EITF 97-10, “The Effect of Lessee Involvement in Asset Construction.”
“Indenture” means this Indenture, as amended or supplemented from time to time.
“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Issuer.
“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.
“Initial Notes” has the meaning assigned to it in the preamble to this Indenture.
“Institutional Accredited Investor” means an institution that is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not also QIBs.
“Investment Grade” means (1) BBB – (with a stable outlook) or above, in the case of S&P (or its equivalent under any successor Rating Categories of S&P) and Baa3 (with a stable outlook) or above, in the case of Moody’s (or its equivalent under any successor Rating Categories of Moody’s), or (2) the equivalent to the foregoing in respect of the Rating Categories of any other Rating Agencies.
“Issue Date” means September 20, 2019.
“Issuer” means Sensata Technologies, Inc. a Delaware corporation.
“Joint Venture” means, with respect to any Person, any partnership, corporation or other entity in which up to and including 50% of the Equity Interests is owned, directly or indirectly, by such Person or one or more of its Subsidiaries. A Joint Venture shall not be treated as a Subsidiary.
“Legended Regulation S Global Note” means a Global Note in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will initially be issued in a denomination equal to the outstanding principal amount at maturity of the Notes initially sold in reliance on Rule 903 of Regulation S.
“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, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to constitute a Lien.
“Measurement Period” means, at any date of determination, the most recently completed four fiscal quarters of STBV or Parent for which financial statements have been filed with the Commission, or in the event that, at any date of determination, neither STBV nor Parent is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the most recently completed four fiscal quarters of STBV for which internal financial statements are available.
“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
“Net Income” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends or accretion of any Preferred Stock.
“Non-U.S. Person” means a Person who is not a U.S. Person.
“Note Guarantee” means any Guarantee of the obligations of the Issuer under this Indenture and the Notes issued hereunder by a Guarantor in accordance with the provisions of this Indenture.
“Notes” has the meaning assigned to it in the preamble to this Indenture. The Initial Notes and any Additional Notes shall be treated as a single class for all purposes under this Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes.
“Offering Memorandum” means that certain final offering memorandum, dated September 10, 2019, relating to the offering and sale of the Notes.
“Officer” means the Chairman of the Board, the Chief Executive Officer, the President, Chief Operating Officer, the Chief Financial Officer, the Chief Accounting Officer, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary, director or managing director, or any equivalent of the foregoing, or any Person duly authorized to act for on behalf, of the Issuer or any Guarantor, as applicable.
“Officers’ Certificate” means a certificate signed on behalf of the Issuer or any Guarantor, as applicable, by two Officers of the Issuer or such Guarantor, as applicable, one of whom is the Chairman of the Board of Directors, the Chief Executive Officer, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, the Chief Accounting Officer, or a director or managing director, or the equivalent, of the Issuer or such Guarantor, as applicable.
“Opinion of Counsel” means an opinion from legal counsel that meets the requirements of Section 12.05 hereof. The counsel may be an employee of or counsel to STBV or any Subsidiary of STBV.
“Parent” means Sensata Technologies Holding plc, a public limited liability company incorporated under the laws of England and Wales or any successor or other entity that serves as a parent company to STBV.
“Participant” means, with respect to the Depositary, a Person who has an account with the Depositary.
“Permitted Bank Indebtedness” means any Indebtedness of STBV or any Subsidiary of STBV pursuant to one or more credit facilities with banks or other lenders providing for revolving credit loans or term loans or the issuance of letters of credit or bankers’ acceptances or the like and Guarantees of such Indebtedness by STBV or any Subsidiary of STBV; provided that the aggregate principal amount of such Permitted Bank Indebtedness at any time outstanding does not exceed $500,000,000.
“Permitted Business” means the business and any services, activities or businesses incidental, or directly related or similar to, any line of business engaged in by STBV and its Subsidiaries as of the Issue Date or any business activity that is a reasonable extension, development or expansion thereof or ancillary thereto.
“Permitted Liens” means:
(1) Liens securing Permitted Bank Indebtedness;
(2) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations;
(3) (a) Liens given to secure the payment of the purchase price or other acquisition, installation or construction costs incurred in connection with the acquisition (including acquisition through merger or consolidation) of any Principal Property, including Capital Lease transactions in connection with any such acquisition and including any purchase money Liens, and (b) Liens existing on any Principal Property at the time of acquisition (including acquisition through merger or consolidation) thereof or at the time of acquisition by STBV or any Subsidiary of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (a), the Liens shall be given within 12 months after such acquisition and shall attach solely to the Principal Property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof;
(4) Liens in favor of STBV or a Subsidiary of STBV;
(5) Liens on any Principal Property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such Principal Property;
(6) Liens imposed by law, such as carriers’, warehousemen’s and mechanic’s Liens and other similar Liens arising in the ordinary course of business, Liens in connection with legal proceedings and Liens arising solely by virtue of any statutory or common law provision relating to banker’s Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution;
(7) Liens for taxes, assessments or other governmental charges not yet overdue for a period of more than 30 days or subject to penalties for non-payment or which are being contested in good faith by appropriate proceedings;
(8) Liens to secure the performance of bids, trade or commercial contracts, government contracts, purchase, construction, sales and servicing contracts (including utility contracts), leases, statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business and to secure letters of credit, Guarantees, bonds or other sureties given in connection with the foregoing or in connection with workers’ compensation, unemployment insurance or other types of social security or similar laws and regulations;
(9) licenses of intellectual property of STBV and its Subsidiaries granted in the ordinary course of business;
(10) Liens to secure Indebtedness incurred by Foreign Subsidiaries pursuant to Section 4.09(b)(10);
(11) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligation in respect of banker’s acceptances issued or created in the ordinary course of business for the account of such Person to facilitate the purchase, shipment, or storage of such inventory or other goods;
(12) Liens to secure Qualified Securitization Financings;
(13) Liens on stock, partnership or other equity interests in any Joint Venture of STBV or any of its Subsidiaries or in any Subsidiary of STBV that owns an equity interest in a Joint Venture to secure Indebtedness contributed or advanced solely to that Joint Venture; provided that, in each case, the Indebtedness secured by such Lien is not secured by a Lien on any other property of STBV or any Subsidiary of STBV;
(14) Liens and deposits securing netting services, business credit card programs, overdraft protection and other treasury, depository and cash management services or incurred in connection with any automated clearing-house transfers of funds or other fund transfer or payment processing services;
(15) Liens on, and consisting of, deposits made by the Issuer or STBV to discharge or defease the Notes and this Indenture, the 2023 Notes, the 2024 Notes, the 2025 Notes, the 2026 Notes or any other Indebtedness;
(16) Liens on insurance policies and the proceeds thereof incurred in connection with the financing of insurance premiums;
(17) easements, rights of way, minor encroachments, protrusions, municipal and zoning and building ordinances and similar charges, encumbrances, title defects or other irregularities, governmental restrictions on the use of property or conduct of business, and Liens in favor of governmental authorities and public utilities, that do not materially interfere with the ordinary course of business of STBV and its Subsidiaries, taken as a whole; or
(18) any extension, renewal, substitution or replacement (or successive extensions, renewals, substitutions or replacements), in whole or in part, of any Lien referred to in the preceding clauses (1) through (17), inclusive.
“Person” means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization, limited liability company or government or other entity.
“Preferred Stock” means any Equity Interest with preferential rights of payment of dividends upon liquidation, dissolution or winding up.
“Principal Property” means, with respect to any Person, all of such Person’s interests in any kind of property or asset (including the capital stock in and other securities of any
other Person), except such as the Board of Directors by resolution determines in good faith (taking into account, among other things, the materiality of such property to the business, financial condition and earnings of STBV and its Subsidiaries taken as a whole) not to be material to the business of STBV and its Subsidiaries, taken as a whole.
“Private Placement Legend” means the legend set forth in Section 2.06(g)(i) hereof to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Qualified Securitization Financing” means any Securitization Financing of a Securitization Subsidiary that meets the following conditions: (i) the Board of Directors of STBV shall have determined in good faith that such Qualified Securitization Financing (including financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to STBV and the Securitization Subsidiary, (ii) all sales of Securitization Assets and related assets to the Securitization Subsidiary are made at fair market value (as determined in good faith by STBV) and (iii) the financing terms, covenants, termination events and other provisions thereof shall be market terms (as determined in good faith by STBV) and may include Standard Securitization Undertakings. The grant of a security interest in any Securitization Assets of STBV or any of its Subsidiaries (other than a Securitization Subsidiary) to secure Indebtedness under the Credit Agreement and any Credit Agreement Refinancing Indebtedness (as defined in the Credit Agreement) with respect thereto shall not be deemed a Qualified Securitization Financing.
“Rating Agency” means (1) S&P and Moody’s or (2) if S&P or Moody’s or both of them are not making ratings publicly available, a nationally recognized statistical rating organization within the meaning of Section 3(62) under the Exchange Act, as the case may be, selected by STBV in its discretion, which will be substituted for S&P or Moody’s or both, as the case may be.
“Rating Category” means (1) with respect to S&P, any of the following categories (any of which may include a “+” or a “-“: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor categories), (2) with respect to Moody’s, any of the following categories: Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories), and (3) the equivalent of any such categories of S&P or Moody’s used by another Rating Agency, if applicable.
“Reference Treasury Dealer” means any of the primary U.S. Government securities dealers in New York City.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker at 5:00 p.m., New York City time, on the third Business Day preceding such redemption date.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Global Note” means a Legended Regulation S Global Note or an Unlegended Regulation S Global Note, as appropriate.
“Released Guarantors” means those certain Wholly Owned Subsidiaries of STBV that, prior to the effectiveness of the Credit Facilities Amendment, Guarantee STBV’s and/or STFC’s obligations under the Credit Agreement and who will be released from their Guarantees under the Credit Agreement pursuant to the Credit Facilities Amendment, subject to satisfaction of certain requirements under the Credit Agreement as amended by the Credit Facilities Amendment.
“Remaining Life” has the meaning assigned to it in the definition of Comparable Treasury Issue.
“Responsible Officer,” when used with respect to the Trustee, means any officer within the Corporate Trust Department of the Trustee (or any successor group of the Trustee) 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, in each case having direct responsibility for the administration of this Indenture.
“Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.
“Restricted Global Note” means a Global Note bearing the Private Placement Legend.
“Restricted Period” means the 40-day distribution compliance period as defined in Regulation S, which period shall terminate (a) on October 30, 2019 with respect to the Initial Notes and (b) on such date as set forth in the applicable supplemental indenture entered into pursuant to Section 9.01(viii) with respect to any Additional Notes.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“Rule 903” means Rule 903 promulgated under the Securities Act.
“Rule 904” means Rule 904 promulgated under the Securities Act.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and any successor to its rating agency business.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Securitization Assets” means any accounts receivable or other revenue streams subject to a Qualified Securitization Financing.
“Securitization Fees” means reasonable distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Securitization Subsidiary in connection with any Qualified Securitization Financing.
“Securitization Financing” means any transaction or series of transactions that may be entered into by STBV or any of its Subsidiaries pursuant to which STBV or any of its Subsidiaries may sell, convey or otherwise transfer to (a) a Securitization Subsidiary (in the case of a transfer by STBV or any of its Subsidiaries) and (b) any other Person (in the case of a
transfer by a Securitization Subsidiary), or may grant a security interest in, any Securitization Assets (whether now existing or arising in the future) of STBV or any of its Subsidiaries, and any assets related thereto including, without limitation, all collateral securing such Securitization Assets, all contracts and all guarantees or other obligations in respect of such Securitization Assets, proceeds of such Securitization Assets and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving Securitization Assets and any Hedging Obligations entered into by STBV or any such Subsidiary in connection with such Securitization Assets.
“Securitization Repurchase Obligation” means any obligation of a seller of Securitization Assets in a Qualified Securitization Financing to repurchase Securitization Assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including, without limitation, as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, off set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
“Securitization Subsidiary” means any Subsidiary of STBV (or another Person) formed for the purposes of engaging in one or more Qualified Securitization Financings and other activities reasonably related thereto.
“Senior Management” means the Chief Executive Officer or the Chief Financial Officer, or the equivalent of the foregoing, of STBV or Parent.
“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 (except, with respect to each test contained therein, substituting 20 percent instead of 10 percent as the applicable threshold).
“Specified Financings” means the entry into the Credit Agreement and the borrowings made thereunder, the 2023 Notes, the 2024 Notes, the 2025 Notes and the 2026 Notes.
“STBV” means Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands or any successor or other entity that serves as a parent company to the Issuer.
“STFC” means Sensata Technologies Finance Company, LLC, a Delaware limited liability company and a Subsidiary of STBV on the Issue Date.
“STUK” means Sensata Technologies UK Financing Co. plc, a public limited company incorporated under the laws of England and Wales and a Subsidiary of STBV on the Issue Date.
“Standard Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by STBV or any Subsidiary of STBV which STBV has determined in good faith to be customary in a Securitization Financing, including, without limitation, those relating to the servicing of the assets of a Securitization Subsidiary, it being understood that any Securitization Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking.
“Stated Maturity,” when used with respect to any Note or any installment of principal thereof or interest thereon, means the date specified in such Note as the fixed date on which the principal of such Note or such installment of principal or interest is due and payable.
“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 that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and
(2) any partnership, joint venture, limited liability company or similar entity of which (x) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise and (y) such Person or any Wholly Owned Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
“TIA” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).
“Trustee” means The Bank of New York Mellon, a New York banking corporation, until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
“Unlegended Regulation S Global Note” means a Global Note in the form of Exhibit A hereto bearing the Global Note Legend, deposited with or on behalf of, and registered in the name of, the Depositary or its nominee and issued upon expiration of the Restricted Period.
“Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required to bear the Private Placement Legend.
“Unrestricted Global Note” means a Global Note that does not bear and is not required to bear the Private Placement Legend.
“U.S. Government Securities” means securities that are
(a) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged; or
(b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of the issuers thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government Securities or a specific payment of principal of or interest on any such U.S. Government Securities held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government
Securities or the specific payment of principal of or interest on the U.S. Government Securities evidenced by such depository receipt.
“U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act.
“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time ordinarily entitled to vote in the election of the Board of Directors of such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness, at any date, the quotient obtained by dividing: (1) the sum of the products of the number of years from the date of determination to the date of each successive scheduled principal payment of such Indebtedness multiplied by the amount of such payment; by (2) the sum of all such payments.
“Wholly Owned Subsidiary” of any Person means a Subsidiary of such Person, 100% of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares and shares issued to foreign nationals under applicable law) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of such Person or by such Person and one or more Wholly Owned Subsidiaries of such Person.
Section 1.02 Other Definitions.
| | | | | |
| Term | Defined in Section |
| “Additional Amounts” | 4.01 |
| “Applicable Law” | 4.01 |
| “Authentication Order” | 2.02 |
| “Change of Control Offer” | 4.15 |
| “Change of Control Payment” | 4.15 |
| “Change of Control Payment Date” | 4.15 |
| “Change in Tax Law” | 3.07 |
| “Covenant Defeasance” | 8.03 |
| “Event of Default” | 6.01 |
| “First Par Call Date” | 3.07 |
| “Initial Default” | 6.01 |
| “Legal Defeasance” | 8.02 |
“Luxembourg Guarantor” | 10.02 |
| “Minimum Dollar Denomination” | 2.01 |
| “Notation of Guarantee” | 10.03 |
| “Paying Agent” | 2.03 |
| “Registrar” | 2.03 |
| “Relevant Taxing Jurisdiction” | 4.01 |
| “Reversion Date” | 4.19 |
| “Subsidiary Debt” | 4.09 |
| “Successor Company” | 5.01 |
| “Suspended Provisions” | 4.19 |
| “Suspension Date” | 4.19 |
| “Suspension Period” | 4.19 |
| “Taxes” | 4.01 |
Section 1.03 Incorporation by Reference of Certain Provisions and Defined Terms in the Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision 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 and the Note Guarantees; and
“obligor” on the indenture securities means the Issuer and the Guarantors, respectively, and any successor obligor upon the indenture securities, respectively.
All other terms used in this Indenture that are defined by the TIA, defined by the TIA by reference to another statute or defined by the Commission rule under the TIA have the meanings so assigned to them by such definitions.
This Indenture has not been qualified under the TIA and no provision of the TIA shall be deemed a part of this Indenture except as specifically set forth herein.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(i)a term has the meaning assigned to it;
(ii)an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(iii)“or” is not exclusive;
(iv)words in the singular include the plural, and words in the plural include the singular;
(v)“will” shall be interpreted to express a command;
(vi)provisions apply to successive events and transactions; and
(vii)references to sections of or rules under the Securities Act will be deemed to include substitute, replacement of successor sections or rules adopted by the Commission from time to time.
Article 2
THE NOTES
Section 2.01 Form and Dating.
(a)General. The Notes and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The Notes shall be in minimum denominations of $2,000 (the “Minimum Dollar Denomination”) and any integral multiple of $1,000 in excess thereof.
The terms and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and the Issuer, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
(b)Rule 144A Global Notes; Global Notes Generally. Notes offered and sold in reliance on Rule 144A shall be issued initially in the form of a 144A Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for the Depositary and registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated Participants in the Depositary, duly executed by the
Issuer and authenticated by the Trustee as hereinafter provided. Each Global Note will represent such of the outstanding Notes as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee or the custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.
(c)Regulation S Global Notes. Notes offered and sold in reliance on Regulation S shall be issued initially in the form of the Legended Regulation S Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for the Depositary, and registered in the name of the Depositary or the nominee of the Depositary for the accounts of the designated Participants in the Depositary, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided. Following the termination of the Restricted Period, beneficial interests in a Legended Regulation S Global Note shall be exchanged for beneficial interests in an Unlegended Regulation S Global Note pursuant to Section 2.06 and the Applicable Procedures. Simultaneously with the authentication of Unlegended Regulation S Global Notes, the Trustee shall cancel such Legended Regulation S Global Note. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee or the custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.
(d)Depositary. The Issuer has initially appointed DTC to act as Depositary with respect to the Global Notes.
(e)Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” or the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream will be applicable to transfers of beneficial interests in the Regulation S Global Notes that are held by Euroclear or Clearstream, respectively, as Participants in DTC.
(f)None of the Trustee or any Agent shall have any responsibility or obligation to any beneficial owner of an interest in a Global Note, a member of, or a Participant or Indirect Participant in, the Depositary or other Person, with respect to the accuracy of the records of the Depositary or its nominee or of any Participant, Indirect Participant or member thereof, with respect to any ownership interest in the Global Notes or with respect to the delivery to any Participant, Indirect Participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the Applicable Procedures of the Depositary. The Trustee and each Agent may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, Participants, Indirect Participants and any beneficial owners.
Section 2.02 Execution and Authentication.
At least one Officer must sign the Notes for the Issuer by manual or facsimile signature, which may be delivered by .pdf attachment to an email or by other electronic means.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note will nevertheless be valid.
A Note will not be valid until authenticated by the manual signature of the Trustee. The signature will be conclusive evidence that the Note has been authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Issuer signed by two Officers of the Issuer (an “Authentication Order”), authenticate Notes for original issue that may be validly issued under this Indenture, including any Additional Notes. The aggregate principal amount of Notes outstanding at any time may not exceed the aggregate principal amount of Notes authorized for issuance by the Issuer pursuant to one or more Authentication Orders, except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Issuer.
Section 2.03 Agents.
The Issuer will maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar will keep a register of the Notes and of their transfer and exchange. The Issuer may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Issuer may change any Registrar or Paying Agent without notice to any Holder. The Issuer will notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Issuer fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. STBV or any of its Subsidiaries may act as Registrar or Paying Agent.
The Issuer may remove any Registrar or Paying Agent upon written notice to such Registrar or Paying Agent and to the Trustee; provided, however, that no such removal shall become effective until (i) if applicable, acceptance of an appointment by a successor as evidenced by an appropriate agreement entered into by the Issuer and such successor Registrar or Paying Agent, as the case may be, and delivered to the Trustee or (ii) notification to the Trustee that the Trustee shall serve as Registrar or Paying Agent until the appointment of a successor in accordance with clause (i) above. The Registrar or Paying Agent may resign at any time upon written notice to the Issuer and the Trustee; provided, however, that the Trustee may resign as Registrar or Paying Agent only if the Trustee also resigns as Trustee in accordance with Section 7.08.
The Issuer initially appoints the Trustee to act as the Registrar and Paying Agent with respect to the Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Issuer will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium or interest on the Notes, and will notify the Trustee in writing of any default by the Issuer in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by such Paying Agent. Upon payment over to the Trustee, the Paying Agent (if other than STBV or a Subsidiary) will have no further liability for the money. If STBV or a Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuer, the Trustee will serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee will preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Issuer will furnish or cause the Registrar to furnish to the Trustee at least seven Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes and the Issuer shall otherwise comply with TIA § 312(a).
Section 2.06 Transfer and Exchange.
(a)Transfer and Exchange of Global Notes. A Global Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the Issuer for Definitive Notes if:
(A) The Depositary (1) notifies the Issuer that it is unwilling or unable to continue as Depositary for the Global Notes or (2) has ceased to be a clearing agency registered under the Exchange Act and the Issuer thereupon fails to appoint a successor Depositary within 120 Business Days;
(B) the Issuer, at its option, notifies the Trustee in writing that it elects to cause the issuance of such Definitive Notes in exchange for beneficial interests in the Global Notes; or
(C) there shall have occurred and be continuing a Default or an Event of Default with respect to the Notes.
Upon the occurrence of any of the preceding events in (A), (B) or (C) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this
Section 2.06(a), however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (d).
(b)Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes will be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also will require compliance with either subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(i)Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend; provided, however, that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Legended Regulation S Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person. Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(i).
(ii)All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(i) above, the transferor of such beneficial interest must deliver to the Registrar either:
(A)both (1) and (2):
(1)a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged; and
(2)instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or
(B)both (1) and (2):
(1)a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and
(2)instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such
Definitive Note shall be registered to effect the transfer or exchange referred to in (B)(1) above,
provided that in no event shall Definitive Notes be issued upon the transfer or exchange of beneficial interests in the Legended Regulation S Global Note prior to the expiration of the Restricted Period and the receipt by the Registrar of a certificate from the transferor stating that the transfer complies with Rule 903 or Rule 904 of the Securities Act.
Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Notes pursuant to Section 2.06(h) hereof.
(iii)Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.06(b)(ii) above and the Registrar receives the following:
(A)if the transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; and
(B)if the transferee will take delivery in the form of a beneficial interest in the Legended Regulation S Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof.
(iv)Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.06(b)(ii) above and the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Issuer so requests or if the Applicable Procedures so require, an opinion of counsel in form reasonably acceptable to the Issuer to the effect that such exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
If any such exchange or transfer is effected at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to this subparagraph (iv).
(v)Transfer and Exchange of Beneficial Interests in an Unrestricted Global Note for Beneficial Interests in a Restricted Global Note. Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.
(c)Transfer and Exchange of Beneficial Interests for Definitive Notes.
(i)Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation:
(A)if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;
(B)if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
(C)if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;
(D)if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E)if such beneficial interest is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications, certificates and opinion of counsel required by item (3)(d) thereof, if applicable;
(F)if such beneficial interest is being transferred to STBV or any of its Subsidiaries, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G)if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuer shall execute and the Trustee shall authenticate upon receipt of an Authentication Order in accordance with Section 2.02 hereof and deliver to the Person designated in the instructions a Restricted Definitive Note in the appropriate principal amount. Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Restricted Definitive Notes to the Persons in whose names such Notes are so registered. Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.
(ii)Beneficial Interests in Legended Regulation S Global Note to Definitive Notes. Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a beneficial interest in the Legended Regulation S Global Note may not be exchanged for a Definitive Note or transferred to a Person who takes delivery thereof in the form of a Definitive Note prior to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar of a certificate from the transferor stating (x) that the transfer complies with Rule 903 or Rule 904 of the Securities Act; or (y) that the transfer is made pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.
(iii)Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Issuer so requests or if the Applicable Procedures so require, an opinion of counsel in form reasonably acceptable to the Issuer to the
effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(iv)Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof, the Trustee will cause the aggregate principal amount of the Unrestricted Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuer will execute and the Trustee will authenticate upon receipt of an Authentication Order in accordance with Section 2.02 hereof and deliver to the Person designated in the instructions an Unrestricted Definitive Note in the appropriate principal amount. Any Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) will be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest requests through instructions to the Registrar from or through the Depositary and the Participant or Indirect Participant. The Trustee will deliver such Unrestricted Definitive Notes to the Persons in whose names such Notes are so registered. Any Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) will not bear the Private Placement Legend.
(d)Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i)Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:
(A)if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;
(B)if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
(C)if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;
(D)if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate from the
transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E)if such Restricted Definitive Note is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications, certificates and opinion of counsel required by item (3)(d) thereof, if applicable;
(F)if such Restricted Definitive Note is being transferred to STBV or any of its Subsidiaries, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G)if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee will cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global Note, and in the case of clause (C) above, the Regulation S Global Note.
(ii)Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Note proposes to exchange such Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Restricted Definitive Note proposes to transfer such Restricted Definitive Note to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Issuer so requests or if the Applicable Procedures so require, an opinion of counsel in form reasonably acceptable to the Issuer to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of this Section 2.06(d)(ii), the Trustee will cancel the Restricted Definitive Note and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.
(iii)Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Unrestricted Definitive Note for a beneficial interest in an Unrestricted Global Note or transfer such Unrestricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraphs (ii) or (iii) above at a time when an Unrestricted Global Note has not yet been issued, the Issuer will issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of the Unrestricted Definitive Note so transferred.
(e)Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Issuer duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder must provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).
(i)Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of a Person or Persons who takes delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:
(A)if the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;
(B)if the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and
(C)if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and opinion of counsel required by item (3) thereof, if applicable.
(ii)Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Note proposes to exchange such Restricted Definitive Note for an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Note proposes to transfer such Restricted Definitive Note to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Issuer so requests, an opinion of counsel in form reasonably acceptable to the Issuer to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(iii)Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of an Unrestricted Definitive Note may transfer such Unrestricted Definitive Note to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Note pursuant to the instructions from the Holder thereof.
(f)[Intentionally Omitted]
(g)Legends. The following legends will appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.
(i)Private Placement Legend.
(A)Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:
“THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN “INSTITUTIONAL ACCREDITED INVESTOR”), (2) AGREES THAT IT WILL NOT, WITHIN [IN THE CASE OF RULE 144A NOTES: ONE YEAR][IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO SENSATA TECHNOLOGIES B.V. OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 903 OR RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL, IF SENSATA TECHNOLOGIES, INC. SHALL SO REQUEST), (F) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER IS ANNEXED TO THE INDENTURE AND CAN BE OBTAINED FROM THE TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES OF LESS THAN $100,000 AN OPINION OF COUNSEL ACCEPTABLE TO SENSATA TECHNOLOGIES, INC. THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN [IN THE CASE OF RULE 144A NOTES: ONE YEAR][IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE), THE HOLDER MUST DELIVER THE CERTIFICATE OF TRANSFER RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND SENSATA TECHNOLOGIES, INC. SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS SENSATA TECHNOLOGIES, INC. MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.”
(B)Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii) or (e)(iii) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) will not bear the Private Placement Legend.
(ii)Global Note Legend.
Each Global Note will bear a legend in substantially the following form:
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(A) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE RIGHTS ATTACHING TO THIS GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).”
(h)Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or a Definitive Note, the principal amount of Notes represented by such Global Note will be reduced accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note will be increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
(i)General Provisions Relating to Transfers and Exchanges.
(i)To permit registrations of transfers and exchanges, the Issuer will execute and the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof.
(ii)No service charge will be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.07, 2.10, 3.06, 4.15 and 9.05 hereof).
(iii)The Registrar will not be required to register the transfer of or exchange of any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
(iv)All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes will be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(v)Neither the Registrar nor the Issuer will be required:
(A)to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day the Issuer gives notice of redemption of the Notes under Section 3.03 hereof or makes a Change of Control Offer pursuant to Section 4.15 hereof and ending at the close of business on the day notice is given or the Change of Control Offer is made, as applicable;
(B)to register the transfer of or to exchange any Note selected for redemption in whole or in part or subject to purchase in a Change of Control Offer, except the unredeemed or unpurchased portion of any Note being redeemed or purchased in part; or
(C)in the case of a redemption or a Change of Control Payment Date occurring after a record date but on or before the corresponding interest payment date, register the transfer or exchange of any Note on or after the record date and before the date of redemption or Change of Control Payment Date, as applicable.
(vi)Subject to the rights of Holders as of the relevant record date to receive interest on the corresponding interest payment date and Section 2.12, prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuer may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Issuer shall be affected by notice to the contrary.
(vii)The Trustee will authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02 hereof.
(viii)Neither the Trustee nor any Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any tax or securities laws with respect to any restrictions on transfer imposed under this Indenture or under applicable law (including any transfers between or among Participants, Indirect Participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Issuer and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Issuer will issue and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Issuer, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuer to protect the Issuer, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuer and the Trustee may charge for their expenses in replacing a Note.
Every replacement Note is an additional obligation of the Issuer and will be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the Trustee except (i) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (ii) Notes for the payment or redemption of which 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, segregated and held in trust by the Issuer (if the Issuer shall act as its own Paying Agent) for the Holders of such Notes; provided that, if such Notes are to be redeemed prior to the maturity thereof, written notice of such redemption has been duly given pursuant to this Indenture, or provision satisfactory to the Trustee shall have been made for giving such notice; and (iii) Notes in substitution for which other Notes shall have been authenticated and delivered, or which shall have been paid, pursuant to the terms of this Indenture (except with respect to any such Note as to which proof satisfactory to the Trustee is presented that such Note is held by a Person in whose hands such Note is a legal, valid and binding obligation of the Issuer). Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because STBV or an Affiliate of STBV holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee and the Registrar receive proof satisfactory to each of them that the replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay all principal, premium and accrued interest with respect to the outstanding Notes payable on that date and the Paying Agent is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture, then on and after that date such Notes will be deemed to be no longer outstanding and will cease to accrue interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in any direction, request, waiver or consent in the exercise of any discretion, power or authority (whether contained in this Indenture or vested by operation of law) which the Trustee is required, expressly or impliedly, to exercise in or by reference to the interests of the Holders or any of them, Notes owned by the Issuer or any Guarantor, or by an Affiliate of the Issuer or any Guarantor, will be considered as though not outstanding, except that for the purposes of determining whether the Trustee will be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee knows are so owned will be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the Issuer may prepare and the Trustee, upon receipt of an Authentication Order, will authenticate temporary Notes. Temporary Notes will be substantially in the form of certificated Notes but may have variations that the Issuer considers appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuer will prepare and the Trustee will authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the benefits of this Indenture.
Section 2.11 Cancellation.
The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent will forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and will dispose of such canceled Notes in its customary manner (subject to the record retention requirement of the Exchange Act). Certification of the destruction of all canceled Notes will be delivered to the Issuer. The Issuer may not issue new Notes to replace Notes that it has redeemed, purchased or paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Issuer defaults in a payment of interest on the Notes, it will pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Issuer will notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Issuer will fix or cause to be fixed each such special record date and payment date; provided that no such special record date may be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Issuer (or, upon the written request of the Issuer, the Trustee in the name and at the expense of the Issuer) will give or cause to be given to Holders in accordance with Section 12.02
a notice prepared by the Issuer that states the special record date, the related payment date and the amount of such interest to be paid.
Section 2.13 CUSIP Numbers and ISIN Numbers.
The Issuer in issuing the Notes may use “CUSIP” numbers and “ISINs” (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers and “ISINs” in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers, either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Trustee in writing of any change in the “CUSIP” numbers or “ISINs.”
Article 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Issuer elects to redeem Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at least five days prior to the date notice of redemption is to be delivered to the Holders of the Notes in accordance with Section 3.03 (unless a shorter time is acceptable to the Trustee), an Officers’ Certificate setting forth:
(i) the clause of this Indenture pursuant to which the redemption shall occur;
(ii) the redemption date;
(iii) the principal amount of Notes to be redeemed;
(iv) the redemption price;
(v) the applicable CUSIP numbers; and
(vi) a statement that the conditions precedent to such redemption have been satisfied.
Section 3.02 Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed at any time, Notes will be selected for redemption as follows:
(i) if the Notes are listed on any national securities exchange, Notes shall be selected in compliance with the requirements of the principal national securities exchange on which the Notes are listed; or
(ii) if the Notes are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem fair and appropriate,
in each case, subject to the Applicable Procedures of DTC as applicable.
In the event of partial redemption of Notes, (i) in the case of Definitive Notes, the particular Notes to be redeemed will be selected, unless otherwise provided herein, by the Trustee not less than 30 days nor more than 60 days prior to the redemption date from the outstanding Notes not previously called for redemption, and (ii) in the case of Global Notes, shall be selected in accordance with the Applicable Procedures of DTC.
The Trustee will promptly notify the Issuer in writing of any Definitive Notes selected for redemption and, in the case of any Definitive Note selected for partial redemption or purchase, the principal amount thereof to be redeemed. No Notes in principal amounts equal to or less than the Minimum Dollar Denomination can be redeemed in part.
Section 3.03 Notice of Optional Redemption.
(a)Except for redemption pursuant to Section 3.07(c), notices of optional redemption will be given at least 30 but not more than 60 days before the redemption date to each Holder of Notes to be redeemed in accordance with Section 12.02, except that redemption notices may be given more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture.
(b)If any Note is to be optionally redeemed, the notice of redemption that relates to that Note will state:
(i)the clause of this Indenture pursuant to which the redemption shall occur;
(ii)the redemption date;
(iii)the principal amount of Notes to be redeemed;
(iv)the redemption price;
(v)applicable CUSIP numbers;
(vi)a statement that the conditions precedent to such redemption have been satisfied.
(c)At the Issuer’s written request delivered at least 35 days prior to the redemption date unless the Trustee consents to a shorter period, the Trustee will give the notice of optional redemption in the Issuer’s name and at its expense; in such event, the Issuer shall provide the Trustee with the information required by this Section 3.03.
(d)If any optional redemption or notice is subject to satisfaction of one or more conditions precedent, the notice shall state that, in the Issuer’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied on or prior to one Business Day prior to the redemption date, or by the redemption date so delayed.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is given in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price and interest will cease to accrue on the Notes or portions thereof called for
redemption on the applicable redemption date unless the Issuer defaults in the payment of the redemption price or accrued interest or any Additional Amounts.
Section 3.05 Deposit of Redemption Price.
On or prior to 11:00 a.m., New York City time, on the Business Day immediately preceding the redemption date, the Issuer will deposit with the Trustee or with the Paying Agent, money sufficient to pay the redemption price of and accrued interest on all Notes to be redeemed on the redemption date. The Trustee or the Paying Agent will promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the redemption price of, and accrued interest on, all Notes to be redeemed following the redemption date.
If the Issuer complies with the provisions of the preceding paragraph, on and after the redemption date, interest will cease to accrue on the Notes or the portions of Notes called for redemption. If a 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 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 is not so paid upon surrender for redemption because of the failure of the Issuer to comply with the preceding paragraph, interest 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 4.01 hereof.
Section 3.06 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Issuer will issue and, upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the expense of the Issuer a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered.
Section 3.07 Optional Redemption.
(a)Except pursuant to Sections 3.07(b), 3.07(c) and 4.15(f), the Notes will not be optionally redeemable by the Issuer; provided, however, the Issuer may acquire the Notes by means other than an optional redemption.
(b)At any time and from time to time, prior to November 15, 2029 (the “First Par Call Date”), the Issuer may redeem the Notes, in whole or in part, at a redemption price equal to the greater of:
(i)100% of the principal amount of the Notes to be redeemed then outstanding; and
(ii)as determined by an Independent Investment Banker, the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed that would be due if such Notes matured on the First Par Call Date (not including any portion of such payments of interest accrued to the date of redemption) discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) using a discount rate equal to the Adjusted Treasury Rate for the Notes plus 50 basis points;
plus, in either of the above cases, accrued and unpaid interest, if any, to, but excluding, the date of redemption of the Notes to be redeemed (subject to the right of Holders of record on the relevant record date to receive interest due on the related interest payment date).
At any time and from time to time on or after the First Par Call Date, the Issuer may redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed then outstanding, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption of the Notes to be redeemed (subject to the right of Holders of record on the relevant record date to receive interest due on the related interest payment date).
(c)The Issuer may, at its option, redeem the Notes, in whole but not in part, at any time upon not less than 15 days’ nor more than 30 days’ notice to the Holders (which notice shall be irrevocable and given in accordance with Section 3.03), at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the redemption date, premium, if any, and all Additional Amounts, if any, then due and which will become due on the date of redemption as a result of the redemption or otherwise, if the Issuer determines in good faith that the Issuer or any Guarantor is, or on the next date on which any amount would be payable in respect of the Notes, would be obligated to pay Additional Amounts in respect of the Notes pursuant to the terms and conditions thereof (but, in the case of a Guarantor, only if the payment giving rise to such requirement cannot be made by the Issuer or another Guarantor without the obligation to pay Additional Amounts), which the Issuer or such Guarantor, as the case may be, cannot avoid by the use of reasonable measures available to it (including, without limitation, making payment through a Paying Agent located in another jurisdiction), as a result of:
(1) any change in, or amendment to, the laws or treaties (or any regulations, official guidance or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction affecting taxation which becomes effective on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction that arises after the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under this Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder); or
(2) any change in the official application, administration, or interpretation of the laws, treaties, regulations, official guidance or rulings of any Relevant Taxing Jurisdiction (including a holding, judgment, or order by a court of competent jurisdiction), on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction that arises after the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under this Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder) (each of the foregoing clauses (1) and (2), a “Change in Tax Law”).
Notwithstanding the foregoing, the Issuer may not redeem the Notes under this provision if a Relevant Taxing Jurisdiction changes under this Indenture and the Issuer is obligated to pay Additional Amounts as a result of a Change in Tax Law of such Relevant Taxing Jurisdiction which was officially announced at the time the latter became a Relevant Taxing Jurisdiction.
In the case of a Guarantor that becomes a party to this Indenture after the Issue Date or a successor Person (including a surviving entity), the Change in Tax Law must become
effective after the date that such entity (or another Person organized or resident in the same jurisdiction) first makes a payment on the Notes.
Notwithstanding the foregoing, no such notice of redemption will be given (a) earlier than 90 days prior to the earliest date on which the Issuer or any Guarantor, would be obliged to make such payment of Additional Amounts or withholding if a payment in respect of the Notes or the relevant Note Guarantee, as the case may be, were then due and (b) unless at the time such notice is given, the obligation to pay Additional Amounts remains in effect.
Prior to the giving of any notice of redemption pursuant to this Section 3.07(c), the Issuer will deliver to the Trustee:
(1) an Officers’ Certificate stating that the Issuer is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Issuer so to redeem have occurred (including that such obligation to pay such Additional Amounts cannot be avoided by the Issuer or any Guarantor or surviving entity taking reasonable measures available to it); and
(2) a written opinion of independent tax advisers of recognized standing qualified under the laws of the Relevant Taxing Jurisdiction to the effect that the Issuer or a Guarantor or surviving entity, as the case may be, is or would be obligated to pay such Additional Amounts as a result of a Change in Tax Law.
The foregoing provisions shall apply mutatis mutandis to any successor Person, after such successor Person becomes a party to this Indenture, with respect to a Change in Tax Law occurring after the time such successor Person becomes a party to this Indenture.
(d)Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.05 hereof.
Article 4
COVENANTS
Section 4.01 Payment of Notes.
(a)The Issuer will pay or cause to be paid the principal of, premium, if any, and interest on, the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest will be considered paid on the date due if the Paying Agent, if other than the Issuer or a Subsidiary thereof, holds as of 11:00 a.m. Eastern Time on the Business Day prior to the due date money deposited by the Issuer in immediately available funds and designated for and sufficient to pay all principal of, premium, if any, and interest then due and the Paying Agent is not prohibited from paying such money to the Holders on the due date pursuant to the terms of this Indenture.
The Issuer will pay interest on overdue principal at the rate specified therefor in the Notes, and it shall pay interest on overdue installments of interest at the same rate borne by the Notes to the extent lawful.
(b) All payments that the Issuer makes under or with respect to the Notes and that any Guarantor makes under or with respect to any Note Guarantee will be made free and
clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other similar governmental charges (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of (i) any jurisdiction in which the Issuer or any Guarantor is incorporated, organized, engaged in business for tax purposes or otherwise resident for tax purposes or from or through which the Issuer or any Guarantor, as applicable, makes any payment on the Notes or any department, political subdivision or other governmental authority of or in such jurisdiction having the power to tax (each, a “Relevant Taxing Jurisdiction”), unless withholding or deduction is then required by law or by the interpretation or administration of law. If the Issuer or any Guarantor is required (as determined in the good faith discretion of the Issuer or Guarantor) to withhold or deduct any amount on account of Taxes imposed or levied by or on behalf of any jurisdiction (or any department, political subdivision or other governmental authority thereof or therein having the power to tax), the Issuer or Guarantor shall be entitled to make such deduction or withholding from any payment made under or with respect to the Notes, and, to the extent such Tax is imposed by a Relevant Taxing Jurisdiction, the Issuer or such Guarantor, as the case may be, shall pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by each Holder or beneficial owner of the Notes after such withholding or deduction (including any such deduction or withholding from such Additional Amounts) will be not less than the amount that would have been received by the Holder or beneficial owner if such Taxes had not been required to be withheld or deducted.
(ii)Neither the Issuer nor any Guarantor shall, however, pay Additional Amounts to a Holder or beneficial owner of Notes in respect or on account of:
(A)any Taxes that would not have been imposed or levied but for the existence of any present or former connection between the relevant Holder or beneficial owner (or between a fiduciary, settler, beneficiary, member or shareholder of, or possessor of a power over, the relevant Holder or beneficial owner, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) with such Relevant Taxing Jurisdiction (including, without limitation, as a result of being resident for Tax purposes, or being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction), other than the mere receipt or holding of Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes, this Indenture or any Note Guarantee;
(B)any Taxes that are imposed or withheld by reason of the failure of the Holder or Beneficial Owner, following the Issuer’s written request addressed to the Holder (and made at a time that would enable the Holder or beneficial owner acting reasonably to comply with that request) to comply with any certification, identification, tax clearance or similar requirements, whether required or imposed by statute, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(C)any estate, inheritance, gift, excise, sales, transfer, personal property or similar Taxes;
(D)any Tax which is payable other than by deduction or withholding from payments made under or with respect to the Notes or Note Guarantees;
(E)any Tax imposed on or with respect to any payment by the Issuer or a Guarantor to the Holder if such Holder is a fiduciary or partnership or person other than the sole beneficial owner of such payment to the extent that Taxes would not have been imposed on such payment had the beneficiary, partner or other beneficial owner directly held the Note;
(F)any Tax that is imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of the Notes for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the Beneficial Owner or Holder thereof would have been entitled to Additional Amounts had the Notes been presented for payment on any date during such 30-day period;
(G)any Taxes imposed pursuant to Sections 1471 to 1474 (inclusive) of the Code (or any amended or successor version of such sections that is substantially comparable), including any current or future Treasury regulations or other official interpretations or guidance thereunder or any agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, any intergovernmental agreements entered into in connection with the foregoing, and any rules or practices adopted pursuant to any such intergovernmental agreement, and any provisions of any treaty or convention among governmental authorities implementing such sections of the Code;
(H)any Taxes imposed by or on behalf of the United States or any department, political subdivision or other governmental authority thereof or therein having the power to tax; or
(I)any combination of the items above.
(iii)The Issuer and each Guarantor shall (A) make such Tax withholding or deduction as is required by applicable law to be made in respect of any payment by it under or with respect to the Notes and (B) remit the full amount so deducted or withheld to the relevant taxing authority in accordance with applicable law.
(iv)At least 30 calendar days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Issuer and any Guarantor determines that it shall be obligated to withhold or deduct Taxes from such payment for which it will be required to pay Additional Amounts (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it will be promptly thereafter), the Issuer shall deliver to the Trustee an
Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable and shall set forth such other information (other than the identities of Holders and Beneficial Owners) necessary to enable the Trustee or the Paying Agent, as the case may be, to pay such Additional Amounts to Holders on the relevant payment date.
(v)The Issuer or the relevant Guarantor shall furnish to the Trustee and each relevant Holder within a reasonable period of time certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor, as the case may be, of any Taxes imposed or levied by the Relevant Taxing Jurisdiction that were withheld or deducted from a payment made by the Issuer or such Guarantor, as the case may be, under or with respect to the Notes. If, notwithstanding the reasonable best efforts of the Issuer or such Guarantor to obtain such receipts, the same are not obtainable, then the Issuer or such Guarantor shall provide the Trustee and the relevant Holders with other evidence reasonably satisfactory to the Trustee and the relevant Holders of such payment by the Issuer or such Guarantor.
(vi)The Issuer and each Guarantor shall pay and indemnify the Holders and the Trustee (if applicable) for (A) any present or future stamp, issue, registration, court or documentary, excise or property taxes or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the execution, issue, delivery or registration of the Notes, any Note Guarantee or this Indenture or any other document or instrument referred to hereunder and any such taxes, charges, duties or similar levies imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes, such Note Guarantee or this Indenture or any such other document or instrument following the occurrence of any Event of Default, and (B) any stamp, court, or documentary taxes (or similar charges or levies) imposed with respect to the receipt of any payments with respect to the Notes or such Note Guarantee. Neither the Issuer nor any Guarantor shall, however, pay such amounts that are imposed on or result from a sale or other transfer or disposition by a Holder or Beneficial Owner (other than the initial resale of the Notes by the initial purchasers).
(vii)This Section 4.01(b) shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer or any Guarantor is organized, incorporated or otherwise resident for tax purposes and any political subdivision or taxing authority or agency thereof or therein or any jurisdiction from or through which such Person makes any payment on the Notes (or any Note Guarantee) or any political subdivision thereof or therein.
(c)In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to this Indenture in effect from time to time (“Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Issuer agrees (i) to provide to the Trustee and each Paying Agent sufficient information about the parties or transactions (including any modification to the terms of such transactions) so the Trustee and each Paying Agent can determine whether it has tax related obligations under Applicable Law, (ii) that the Trustee and each Paying Agent shall be entitled to make any withholding or deduction from payments to the extent necessary to comply with Applicable Law for which the Trustee and each Paying Agent shall not have any liability, and (iii) to hold harmless the Trustee and each Paying Agent for any
losses it may suffer due to the actions it takes to comply with Applicable Law. The terms of this Section 4.01(c) shall survive the termination, defeasance or discharge of this Indenture.
Section 4.02 Maintenance of Office or Agency.
The Issuer will maintain in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served (other than the type contemplated by Section 12.09). The Issuer 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 fails to maintain any such required office or agency or fails 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.
The Issuer may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission will in any manner relieve the Issuer of its obligation to maintain an office or agency in the Borough of Manhattan, the City of New York 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.
The Issuer hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Issuer in accordance with Section 2.03 hereof.
Section 4.03 Reports.
(a)STBV will furnish to the Trustee and the Holders of the Notes in the manner specified below:
(i)within 90 days after the end of each fiscal year ending December 31, an annual report of STBV containing substantially all the financial information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if STBV had been a reporting company under the Exchange Act, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” Section and a report on the annual financial statements by STBV’s independent registered public accounting firm; provided that such annual report will not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(ii)within 45 days after the end of each of the first three fiscal quarters of each fiscal year, quarterly reports of STBV containing substantially all the financial information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if STBV had been a reporting company under the Exchange Act, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” Section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(iii)within ten Business Days after the occurrence of each event that would have been required to be reported in a current report on Form 8-K under the Exchange Act if STBV had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required to be contained in a current report on Form 8-K under the Exchange Act pursuant to Sections 1, 2 (other than Item 2.02) and 4 and Items 5.01, 5.02 (other than any compensation-related information) and 5.03 of Form 8-K if STBV had been a reporting company under the Exchange Act; provided, however, that no such current report will be required to (i) be furnished if STBV determines in its good faith judgment that such event is not material to Holders or the business, assets, operations, financial positions or prospects of STBV and its Subsidiaries, taken as a whole, or if STBV determines in its good faith judgment that such disclosure would otherwise cause material competitive harm to the business, assets, operations, financial position or prospects of STBV and its Subsidiaries, taken as a whole; provided further that such non-disclosure shall be limited only to those specific provisions that would cause material competitive harm and not the occurrence of the event itself or (ii) contain financial statements or pro forma financial statements.
(b)None of the reports referenced in Section 4.03(a) will be required to comply with Section 302 or Section 404 of the Sarbanes-Oxley Act of 2002, or related Items 307 and 308 of Regulation S-K promulgated by the Commission, or Item 302 of Regulation S-K or Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or Item 601 of Regulation S-K (with respect to exhibits), in each case, as in effect on the Issue Date, and will not be required to contain the separate financial information for Guarantors contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the Commission or to provide financial statements in interactive data format using the eXtensible Business Reporting Language.
(c)To the extent not satisfied by Section 4.03(a), for so long as any Notes are outstanding and constitute “restricted securities” within the meaning of Rule 144 under the Securities Act, STBV will furnish to Holders and to securities analysts and prospective purchasers of the Notes in connection with any sale thereof, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this Section 4.03(c) and Section 4.03(a) may be satisfied by (i) delivering such information electronically to the Trustee and (ii) posting copies of such information on a website (which may be nonpublic and may be maintained by STBV or a third party) to which access will be given to Holders and prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of STBV and who acknowledge the confidentiality of the information.
(d)Notwithstanding Section 4.03(a) through (c), at all times that either STBV or Parent is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the reporting requirements of this Section 4.03 shall be satisfied through the filing with the Commission within the time periods specified in the Commission’s rules and regulations that are then applicable to STBV or Parent, as applicable, all the reports on Form 10-K, Form 10-Q and Form 8-K that either STBV or Parent, as applicable, is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the Commission.
(e)In the event that the reporting obligation of this Section 4.03 are satisfied through the reports of Parent in accordance with Section 4.03(d) and Parent or any other direct or indirect parent company of STBV holds any material assets other than cash, Cash Equivalents and the Capital Stock of STBV or any other direct or indirect parent of STBV (and performs the related incidental activities associated with such ownership), then the reports of Parent referenced in Section 4.03(d) shall be accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Parent and such other parent companies, on the one hand, and the information relating to STBV and its Subsidiaries on a stand-alone basis, on the other hand.
(f)Notwithstanding anything herein to the contrary, STBV will not be deemed to have failed to comply with any of its obligations hereunder for purposes of Section 6.01(a)(iii) until 90 days after the date any report hereunder is due.
(g)Delivery of the above reports to the Trustee is for informational purposes only and the Trustee’s receipt of such reports shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including compliance by the Issuer, any Guarantor or any Subsidiary with any of its covenants in this Indenture (as to which the Trustee is entitled to rely exclusively on an Officers’ Certificate) or any other agreement or document. The Trustee shall have no obligation to determine if and when STBV has satisfied its reporting obligations under this Section 4.03. STBV shall (i) provide the Trustee with prompt written notification at such time that STBV commences or ceases to satisfy its reporting obligation under Section 4.03 through the reports of STBV or Parent, as applicable, in accordance with Section 4.03(d) or (ii) provide the Trustee and the Holders the information set forth in Section 4.03(a).
Section 4.04 Compliance Certificate.
(a)STBV shall deliver to the Trustee within 120 days after the end of each fiscal year of STBV ending December 31, an Officers’ Certificate stating that in the course of the performance by the signers of their duties as Officers of STBV they would normally have knowledge of any Default and whether or not the signers know of any Default that occurred during such period. If they do, the certificate shall describe the Default, its status and what action STBV is taking or proposes to take with respect thereto. STBV also shall comply with Section 314(a)(4) of the TIA.
(b)So long as any of the Notes are outstanding, STBV will deliver to the Trustee, forthwith upon any Officer becoming aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event of Default and the remedial action STBV proposes to take in connection therewith.
Section 4.05 Corporate Existence.
Except as otherwise permitted by Article 5, the Issuer shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence in accordance with its organizational documents.
Section 4.06 [Intentionally Omitted].
Section 4.07 [Intentionally Omitted].
Section 4.08 Limitation on Sale and Lease-Back Transactions.
(a)STBV will not, and will not permit any of its Subsidiaries, directly or indirectly, to enter into any sale and lease-back transaction for the sale and leasing back of any Principal Property, whether now owned or hereafter acquired, unless:
(1) such transaction was entered into prior to or within 12 months after the Issue Date;
(2) such transaction was for the sale and leasing back to STBV or a Subsidiary of any Principal Property;
(3) such transaction involves a lease of a Principal Property executed by the time of or within 12 months after the latest of the acquisition, the completion of construction or improvement, or the commencement of commercial operation, of such Principal Property;
(4) such transaction involves a lease for not more than three years (or which may be terminated by STBV or the applicable Subsidiary within a period of not more than three years);
(5) STBV or the applicable Subsidiary would be entitled to incur Indebtedness secured by a mortgage on the property to be leased in an amount equal to Attributable Liens with respect to such sale and lease-back transaction without equally and ratably securing the Notes pursuant to Section 4.12(a); or
(6) STBV or the applicable Subsidiary applies an amount equal to the net proceeds from the sale of the Principal Property to the purchase of another Principal Property or to the retirement or other repayment or prepayment of long-term Indebtedness within 365 calendar days before or after the effective date of any such sale and lease-back transaction; provided that in lieu of applying such amount to such retirement, repayment or prepayment, STBV or any Subsidiary may deliver Notes to the Trustee for cancellation, such Notes to be credited at the cost thereof to STBV or such Subsidiary.
(b)Notwithstanding Section 4.08(a), STBV and its Subsidiaries may enter into any sale and lease-back transaction which would otherwise be subject to the foregoing restrictions if after giving effect thereto and at the time of determination, Aggregate Debt does not exceed an amount equal to the greater of (a) $3,250,000,000, and (b) 3.25 times EBITDA of STBV for the Measurement Period immediately preceding the closing date of the sale and lease-back transaction.
Section 4.09 Limitation on Subsidiary Debt.
(a)STBV will not permit any of its Subsidiaries (other than the Issuer) to create, assume, incur, Guarantee or otherwise become liable for or suffer to exist any Indebtedness (any Indebtedness of a Subsidiary of STBV that is not a Guarantor (other than the Issuer), “Subsidiary Debt”), without Guaranteeing the payment of the principal of, premium, if any, and interest on the Notes on an unsecured unsubordinated basis.
(b)Section 4.09(a) shall not apply to, and there shall be excluded from Indebtedness in any computation under such restriction, Subsidiary Debt constituting:
(1) Indebtedness of a Person existing at the time such Person is merged into or consolidated with or otherwise acquired by any Subsidiary of STBV or at the time of a sale, lease or other disposition of the properties and assets of such Person (or a division thereof) as an entirety or substantially as an entirety to any Subsidiary of STBV and is assumed by such Subsidiary; provided that any such Indebtedness was not incurred in contemplation thereof and is not Guaranteed by any other Subsidiary of STBV (other than any Guarantee existing at the time of such merger, consolidation or sale, lease or other disposition of properties and assets and that was not issued in contemplation thereof);
(2) Indebtedness of a Person existing at the time such Person becomes a Subsidiary of STBV; provided that any such Indebtedness was not incurred in contemplation thereof;
(3) Indebtedness owed to STBV or any Subsidiary of STBV;
(4) any Subsidiary Debt represented by any Guarantee of the 2023 Notes, the 2024 Notes, the 2025 Notes or the 2026 Notes or any Indebtedness or Guarantees under Permitted Bank Indebtedness;
(5) Indebtedness or Guarantees in respect of netting services, business credit card programs, overdraft protection and other treasury, depository and cash management services or incurred in connection with any automated clearing-house transfers of funds or other fund transfer or payment processing services;
(6) Indebtedness or Guarantees arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that any such Indebtedness or Guarantee is extinguished within five Business Days within its incurrence;
(7) Indebtedness or Guarantees in respect of any Qualified Securitization Financing;
(8) reimbursement obligations incurred in the ordinary course of business;
(9) client advances and deposits received in the ordinary course of business;
(10) Indebtedness or Guarantees incurred by Foreign Subsidiaries in an amount not to exceed $300,000,000 at any time outstanding;
(11) Indebtedness or Guarantees incurred (a) in respect of workers’ compensation claims, payment obligations in connection with health or other types of social security benefits, unemployment or other insurance obligations, reclamation and statutory obligations, (b) in connection with the financing of insurance premiums or self-insurance obligations or take-or-pay obligations contained in supply agreements, and (c) in respect of guarantees, warranty or contractual service obligations, indemnity, bid, performance, warranty, release,
appeal, surety and similar bonds, letters of credit and banker’s acceptances for operating purposes or to secure any Indebtedness or other obligations referred to in clauses (1) through (9) or this clause (11), payment (other than for payment of Indebtedness) and completion guarantees, in each case provided or incurred (including Guarantees thereof) in the ordinary course of business; or
(12) Indebtedness outstanding on the Issue Date not referred to in clause (4) above and any extension, renewal, replacement, refinancing or refunding of any Indebtedness existing on the Issue Date or referred to in clauses (1), (2) and (4); provided (x) that any Indebtedness incurred to so extend, renew, replace, refinance or refund has a Weighted Average Life to Maturity at the time such Indebtedness is incurred that is not less than the remaining Weighted Average Life to Maturity of the Indebtedness referred to in this clause or clauses (1), (2) and (4) above being extended, renewed, replaced, refinanced or refunded, and (y) the principal amount of the Indebtedness incurred to so extend, renew, replace, refinance or refund shall not exceed the principal amount of the Indebtedness being extended, renewed, replaced, refinanced or refunded plus any premium or fee (including tender premiums) or other reasonable amounts payable, plus all accrued interest on such Indebtedness and the amount of fees, expenses and other costs incurred, in connection with any such extension, renewal, replacement, refinancing or refunding.
(c)Notwithstanding Sections 4.09(a) and (b), STBV or any Subsidiary of STBV may, create, incur, issue, assume, Guarantee or otherwise become liable for or suffer to exist Indebtedness that would otherwise be subject to the restrictions set forth in Sections 4.09(a) and (b), without Guaranteeing the Notes, if after giving effect thereto, Aggregate Debt does not exceed an amount equal to the greater of (a) $3,250,000,000, and (b) 3.25 times EBITDA of STBV for the Measurement Period immediately preceding the date of the creation or incurrence of the Subsidiary Debt. Any Subsidiary also may, without Guaranteeing the payment of the principal of, premium, if any, and interest on the Notes, extend, renew, replace, refinance or refund any Subsidiary Debt permitted pursuant to the preceding sentence; provided (x) that any Subsidiary Debt incurred to so extend, renew, replace, refinance or refund has a Weighted Average Life to Maturity at the time such Subsidiary Debt is incurred that is not less than the remaining Weighted Average Life to Maturity of the Subsidiary Debt being extended, renewed, replaced, refinanced or refunded, and (y) the principal amount of the Subsidiary Debt incurred to so extend, renew, replace, refinance or refund shall not exceed the principal amount of Subsidiary Debt being extended, renewed, replaced, refinanced or refunded plus any premium or fee (including tender premiums) or other reasonable amounts payable, plus all accrued interest on such Subsidiary Debt and the amount of fees, expenses and other costs incurred, in connection with any such extension, renewal, replacement, refinancing or refunding.
(d)Notwithstanding anything to the contrary, (i) in the event that any Wholly Owned Subsidiary of STBV (other than a Released Guarantor or STFC) Guarantees the obligations of any Credit Agreement Borrower, or if any Released Guarantor shall provide any such Guarantee following its Guarantees Release, STBV and the Issuer shall cause such Wholly Owned Subsidiary, subject to the receipt of any necessary regulatory approvals, to provide a Note Guarantee by executing and delivering to the Trustee a supplemental indenture and a Notation of Guarantee in accordance with the terms of this Indenture, (ii) if any Released Guarantor shall not have been released from its guarantee of the obligations of each Credit Agreement Borrower under the Credit Agreement pursuant to the Credit Facilities Amendment or otherwise within ninety (90) days after the Issue Date, then STBV and the Issuer shall (x) notify the Trustee thereof and (y) cause such Released Guarantor, subject to the receipt of any necessary regulatory approvals, to provide a Note Guarantee by executing and delivering to the
Trustee, within ten (10) Business Days after such ninetieth day, a supplemental indenture and a Notation of Guarantee in accordance with the terms of this Indenture, and (iii) STFC shall not be a guarantor of the Notes on the Issue Date, and in no event shall STFC be required to provide a Note Guarantee unless it shall have become a guarantor of the Existing Notes.
Section 4.10 [Intentionally Omitted].
Section 4.11 [Intentionally Omitted].
Section 4.12 Limitation on Liens.
(a)STBV shall not, and shall not permit any of its Subsidiaries, directly or indirectly, to enter into, create, incur, assume or suffer to exist any Lien on any Principal Property, whether now owned or hereafter acquired, in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except:
(1) Liens existing as of the Issue Date;
(2) Liens granted after the Issue Date created in favor of the Holders of the Notes;
(3) Liens created in substitution of, or as replacements for, any Liens described in clauses (1) and (2) above; provided that based on a good faith determination of Senior Management, the Principal Property encumbered under any such substitute or replacement Lien is substantially similar in nature to the Principal Property encumbered by the otherwise permitted Lien which is being replaced; and
(4) Permitted Liens.
(b)Notwithstanding Section 4.12(a), STBV or any Subsidiary of STBV may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in Section 4.12(a) if after giving effect thereto, Aggregate Debt does not exceed an amount equal to the greater of (a) $3,250,000,000, and (b) 3.25 times EBITDA of STBV for the Measurement Period immediately preceding the date of the creation or incurrence of the Lien. STBV or any Subsidiary of STBV also may, without equally and ratably securing the Notes, create or incur Liens that extend, renew, substitute or replace (including successive extensions, renewals, substitutions or replacements), in whole or in part, any Lien permitted pursuant to the preceding sentence.
Section 4.13 Business Activities.
STBV shall not, and shall not permit any Subsidiary to, engage in any business other than Permitted Businesses, except to such extent as would not be material to STBV and its Subsidiaries taken as a whole.
Section 4.14 Payment of Taxes and Other Claims.
STBV shall, and shall cause each of its Subsidiaries to, pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (a) 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 (b) all lawful claims for
labor, materials and supplies except, in each case, any such tax, assessment, charge or claim as is being contested in good faith by appropriate actions or where the failure to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim is not materially adverse to the Holders.
Section 4.15 Offer to Repurchase upon Change of Control.
(a)If a Change of Control occurs, unless the Issuer at such time has given notice of redemption under Section 3.07(b) or Section 3.07(c) with respect to all outstanding Notes, each Holder will have the right to require the Issuer to repurchase all or any part (in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess thereof) of that Holder’s Notes pursuant to an offer to purchase on the terms set forth in this Indenture (the “Change of Control Offer”). In the Change of Control Offer, the Issuer will offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest on the Notes repurchased, to, but excluding, the Change of Control Payment Date (the “Change of Control Payment”). Within 30 days following any Change of Control, unless the Issuer at such time has given notice of redemption under Section 3.07(b) or Section 3.07(c) with respect to all outstanding Notes, the Issuer will give notice to the Trustee and each Holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the date specified in the notice (the “Change of Control Payment Date”), which date will be no earlier than 30 days and no later than 60 days from the date such notice is given, pursuant to the procedures required by this Indenture and described in such notice. The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.15 by virtue of such conflict.
(b)On or prior to 11:00 a.m., New York City time, on the Business Day immediately preceding the Change of Control Payment Date, the Issuer shall, to the extent lawful, deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered.
(c)On the Change of Control Payment Date, the Issuer shall, to the extent lawful:
(i)accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer; and
(ii)deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Issuer.
(d)The Paying Agent shall promptly deliver to each Holder properly tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each new Note will be in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess thereof. The Issuer shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(e)The Issuer shall not be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer or (ii) a valid notice of redemption for all of the Notes has been given, or will be given contemporaneously with the Change of Control, pursuant to Section 3.07(b) or Section 3.07(c) unless and until such notice has been validly revoked (in the case of a redemption pursuant to Section 3.07(b)) or there is a default in the payment of the applicable redemption price. A Change of Control Offer may be made in advance of a Change of Control or conditional upon the occurrence of a Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made.
(f)In the event that Holders of not less than 90% in aggregate principal amount of the then outstanding Notes accept a Change of Control Offer and the Issuer (or any third party making such Change of Control Offer in lieu of the Issuer as described above) purchases all of the Notes held by such Holders, the Issuer shall have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the Change of Control Payment Date relating to the Change of Control Offer described above, to redeem all of the Notes that remain outstanding following such Change of Control Payment Date in accordance with Article 3 at a redemption price equal to the Change of Control Payment, plus to the extent not included in the Change of Control Payment, accrued and unpaid interest on the Notes that remain outstanding, to, but excluding, the date of purchase.
Section 4.16 Payments for Consent.
STBV shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid and is paid to all Holders that so consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement.
Section 4.17 Additional Guarantees.
(a)On or after the Issue Date, STBV shall cause each Subsidiary that is required to Guarantee the payment of principal of, premium, if any, and interest on the Notes pursuant to Section 4.09 to become a Guarantor, within 10 Business Days of (i) the creation, assumption, incurrence or Guarantee of the applicable Subsidiary Debt or (ii) in the case of any Guarantee required to be provided by a Released Guarantor pursuant to Section 4.09(d)(ii), the expiration of the ninety (90) day period referred to therein, and STBV shall cause each such Subsidiary to execute and deliver to the Trustee within such 10 Business Day period (x) a supplemental indenture in substantially the form attached hereto as Exhibit E and (y) a Notation of Guarantee in substantially the form attached hereto as Exhibit D, pursuant to which such Subsidiary will unconditionally Guarantee, on a joint and several basis, the full and prompt payment of the principal of, premium, if any and interest on the Notes and all other obligations under this Indenture on the same terms and conditions as those set forth in this Indenture.
(b)Each Note Guarantee will be limited to an amount not to exceed the maximum amount that can be Guaranteed by that Subsidiary without rendering the Note Guarantee, as it relates to such Subsidiary, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
(c)Each Note Guarantee shall be automatically released in accordance with the provisions of this Indenture described under Article 11.
Section 4.18 [Intentionally Omitted].
Section 4.19 Suspension of Guarantees Upon Change in Ratings.
(a)If on any date following the Issue Date (1) the Notes are rated Investment Grade by either of the Rating Agencies; and (2) no Default or Event of Default shall have occurred and be continuing, then, beginning on such date (the “Suspension Date”) and subject to the provisions of Section 4.19(b), the Note Guarantees shall be deemed released and STBV’s obligation under Section 4.17 shall be suspended (collectively, the “Suspended Provisions”).
(b)During any Suspension Period, any Subsidiary Debt incurred prior to or outstanding as of the Suspension Date shall be deemed to have been incurred in compliance with Section 4.09.
(c)In the event that the Notes are no longer rated Investment Grade by both Rating Agencies or an Event of Default shall have occurred and be continuing, the Suspended Provisions will be reinstituted as of and from the date on which the Notes are no longer rated Investment Grade by both Rating Agencies or an Event of Default has occurred and is continuing (any such date, a “Reversion Date”). The period of time between the Suspension Date and the Reversion Date is referred to as the “Suspension Period.” Notwithstanding that the Suspended Provisions may be reinstated, no Default or Event of Default will be deemed to have occurred as a result of a failure to comply with the Suspended Provisions during the Suspension Period.
(d)STBV and its Subsidiaries may honor any contractual commitments to take actions following a Reversion Date without causing a Default or Event of Default; provided that such contractual commitments were entered into during the Suspension Period and not in contemplation of a reversion of the Suspended Provisions.
(e)STBV shall provide an Officers’ Certificate to the Trustee indicating the commencement of any Suspension Period or the occurrence of any Reversion Date. The Trustee will have no obligation to (i) independently determine or verify if such events have occurred, (ii) make any determination regarding the impact of actions taken during the Suspension Period on STBV and its Subsidiaries’ future compliance with their covenants or (iii) notify the Holders of the commencement of the Suspension Period or the Reversion Date.
Section 4.20 Compliance with Laws.
STBV shall comply, and shall cause each of its Subsidiaries to comply, with all applicable statutes, rules, regulations, orders and restrictions of the United States, all states and municipalities thereof, and of any governmental department, commission, board, regulatory authority, bureau, agency and instrumentality of the foregoing, in respect of the conduct of their respective businesses and the ownership of their respective properties, except, in any such case, to the extent the failure to so comply would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of STBV and its Subsidiaries taken as a whole.
Section 4.21 Waiver of Stay, Extension or Usury Laws.
The Issuer and each Guarantor covenants (to the extent permitted by applicable law) 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 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 permitted by applicable law) the Issuer and each Guarantor hereby expressly waives all benefit or advantage of any such law, and covenants (to the extent permitted by applicable law) that it shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted.
Article 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
(a)Neither STBV nor the Issuer may, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not it is the surviving entity); or (2) sell, assign, transfer, convey, lease or otherwise dispose of all or substantially all of its and STBV’s Subsidiaries’ properties or assets taken as a whole, in one or more related transactions, to another Person, unless:
(i)either: (A) STBV or the Issuer, as applicable, is the surviving entity; or (B) the Person formed by or surviving any such consolidation or merger (if other than STBV or the Issuer, as applicable) or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made is a corporation or limited liability company organized or existing under the laws of any member state of the European Union, the United States, any state of the United States or the District of Columbia (STBV, the Issuer or such Persons, as applicable, including the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, as the case may be, being herein called the “Successor Company”); provided that at any time the Successor Company is the issuer of the Notes and is a limited liability company, there shall be a co-issuer of the Notes that is a corporation that satisfies the requirements of this Section 5.01(a);
(ii)the Successor Company (if other than STBV or the Issuer, as applicable) assumes all the obligations of STBV or the Issuer under the Note Guarantee or the Notes, as the case may be, and this Indenture pursuant to a supplemental indenture;
(iii)immediately after such transaction, no Default or Event of Default exists; and
(iv)STBV delivers an Officers’ Certificate and Opinion of Counsel stating that such transaction complies with this Indenture and, if applicable, all conditions precedent in this Indenture to the execution of the supplemental indenture have been satisfied.
The foregoing provision shall also apply to any Guarantor other than STBV.
(b)For purposes of this Article 5, the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of STBV (including the Issuer), which properties and assets, if held by STBV instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of STBV on a consolidated basis, shall be deemed to be the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of STBV.
(c)For the avoidance of doubt, it is agreed that, for all purposes under this Indenture, a sale, transfer or disposition of the properties or assets of STBV and its Subsidiaries (including the Issuer) that, in the aggregate accounted for no more than two-thirds of STBV’s aggregate EBITDA, during the four most recent consecutive fiscal quarters prior to the date of such sale, transfer or disposition for which financial statements are available (as specified in an Officers’ Certificate delivered to the Trustee), shall be deemed not to be a sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of STBV.
(d)Upon the execution and delivery of the supplemental indenture referred to in Section 5.01(a)(ii), the predecessor company shall be released from its obligations under this Indenture and the Successor Company shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer or STBV, as applicable, under this Indenture and the Notes or the Note Guarantee, as the case may be, but, in the case of a lease of all or substantially all its assets, the predecessor shall not be so released.
(e)Notwithstanding the foregoing, clause (iii) of Section 5.01(a) shall not apply to (A) a sale, assignment, transfer, conveyance, lease or other disposition of assets between or among STBV and its Subsidiaries, (B) any Subsidiary consolidating with, merging into or selling, assigning, transferring, conveying, leasing or otherwise disposing of all or part of its properties and assets to STBV or to another Subsidiary of STBV (provided that, in the event that such Subsidiary is a Guarantor, it may consolidate with, merge into or sell, assign, transfer, convey, lease or otherwise dispose of all or part of its properties and assets solely to the Issuer or another Guarantor) or (C) the Issuer or STBV merging with an Affiliate solely for the purpose and with the sole effect of reincorporating the Issuer or STBV, as applicable, in another jurisdiction.
Article 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
(a)Each of the following is an “Event of Default”:
(i)the Issuer defaults in payment when due and payable, upon redemption, acceleration or otherwise, of principal of, or premium, if any, on the Notes;
(ii)the Issuer defaults in the payment when due of interest on or with respect to the Notes and such default continues for a period of 30 days;
(iii)the Issuer or STBV defaults in the performance of, or breaches any covenant, warranty or other agreement contained in, this Indenture (other than a default in the performance or breach of a covenant, warranty or agreement which
is specifically dealt with in clauses (i) or (ii) above) and such default or breach continues for a period of 60 days after the notice specified below;
(iv)a default under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any Indebtedness for money borrowed by STBV or any Subsidiary or the payment of which is Guaranteed by STBV or any Subsidiary of STBV (other than Indebtedness owed to STBV or a Subsidiary), whether such Indebtedness or Guarantee now exists or is created after the Issue Date, if (A) such default either (1) results from the failure to pay any such Indebtedness at its stated final maturity (after giving effect to any applicable grace periods) or (2) relates to an obligation other than the obligation to pay principal of any such Indebtedness at its stated final maturity and results in the holder or holders of such Indebtedness causing such Indebtedness to become due prior to its stated maturity and (B) the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness in default for failure to pay principal at stated final maturity (after giving effect to any applicable grace periods), or the maturity of which has been so accelerated, aggregate in excess of $50,000,000 (or its foreign currency equivalent) at any one time outstanding;
(v)the Issuer, STBV or any Significant Subsidiary of STBV pursuant to or within the meaning of any Bankruptcy Law:
(A)commences a voluntary case;
(B)consents to the entry of an order for relief against it in an involuntary case;
(C)consents to the appointment of a custodian of it or for all or substantially all of its property;
(D)makes a general assignment for the benefit of its creditors;
(E)takes any comparable action under any foreign laws relating to insolvency;
(F)generally is not able to pay its debts as they become due; or
(G)takes any corporate action to authorize or effect any of the foregoing;
(vi)a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A)is for relief against the Issuer, STBV or any Significant Subsidiary of STBV in an involuntary case;
(B)appoints a custodian of the Issuer, STBV or any Significant Subsidiary of STBV or for all or substantially all of the property or assets of the Issuer, STBV or any Significant Subsidiary of STBV; or
(C)orders the liquidation of the Issuer, STBV or any Significant Subsidiary of STBV,
and the order or decree remains unstayed and in effect for 60 days;
(vii)the failure by the Issuer, STBV or any Significant Subsidiary of STBV to pay final judgments aggregating in excess of $50,000,000, which final judgments remain unpaid, undischarged and unstayed for a period of more than 60 days after the applicable judgment becomes final, and, with respect to any such judgments covered by insurance, an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly stayed; or
(viii)the Note Guarantee of STBV, a Significant Subsidiary of STBV or any group of Subsidiaries of STBV that, taken together as of the date of the most recent audited financial statements of STBV, would constitute a Significant Subsidiary of STBV ceases to be in full force and effect (except as contemplated by the terms hereof) or any Guarantor denies or disaffirms its obligations under this Indenture or any Note Guarantee, other than by reason of the release of such Note Guarantee in accordance with the terms of this Indenture.
(b)If a Default for a failure to report or failure to deliver a required certificate in connection with another default (the “Initial Default”) occurs, then at the time such Initial Default is cured, such Default for a failure to report or failure to deliver a required certificate in connection with another default that resulted solely because of that Initial Default will also be cured without any further action.
(c)Any Default or Event of Default for the failure to comply with the time periods prescribed in Section 4.03 or otherwise to deliver any notice or certificate pursuant to any other provision of this Indenture shall be deemed to be cured upon the delivery of any such report required by Section 4.03 or such notice or certificate, as applicable, even though such delivery is not within the prescribed period specified in this Indenture.
Section 6.02 Acceleration.
(a)If an Event of Default specified in clause (v) or (vi) of Section 6.01(a) occurs and is continuing, then all unpaid principal of, and premium, if any, and accrued and unpaid interest on all of the outstanding Notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
(b)If any Event of Default (other than an Event of Default specified in clauses (v) or (vi) of Section 6.01(a)) shall occur and be continuing, the Trustee or the Holders of at least 25% in principal amount of outstanding Notes under this Indenture may declare the principal of, premium, if any, and accrued interest on such Notes to be immediately due and payable by notice in writing to the Issuer and the Trustee (if given by the Holders) specifying the respective Event of Default and that it is a “notice of acceleration,” and the same shall become immediately due and payable.
(c)At any time after a declaration of acceleration of the unpaid principal, premium (if any) and accrued and unpaid interest has occurred with respect to the Notes as described in Section 6.02(a) or (b), the Holders of a majority in aggregate principal amount of the then outstanding Notes may rescind and cancel such declaration and its consequences by written notice to the Issuer and the Trustee:
(i)if the rescission would not conflict with any judgment or decree;
(ii)if all existing Events of Default have been cured or waived except nonpayment of principal, premium, if any, or accrued interest that has become due solely because of the acceleration;
(iii)to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid;
(iv)if the Issuer has paid the Trustee its reasonable compensation and reimbursed the Trustee for its expenses (including the fees and expenses of its counsel), disbursements and advances; and
(v)in the event of the cure or waiver of an Event of Default under this Indenture of the type described in clause (v) and (vi) of Section 6.01(a), the Trustee shall have received an Officers’ Certificate that such Event of Default has been cured or waived.
No such rescission shall affect any subsequent Default or impair any right consequent thereto.
Section 6.03 Other Remedies.
(a)If a 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 interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
(b)The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon a Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Default. No remedy is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by law.
(c)In the event of any Event of Default specified in clause (iv) of Section 6.01(a), such Event of Default and all consequences thereof (excluding, however, any resulting payment default, other than as a result of the acceleration of the Notes) shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 20 days after such Event of Default arose: (x) the Indebtedness or Guarantee that is the basis for such Event of Default has been discharged or (y) the holders of such Indebtedness or Guarantee have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default or (z) the default that is the basis for such Event of Default is no longer continuing, it being understood that in no event shall an acceleration of the principal amount of, premium, if any, and accrued interest on the Notes, as described above, be automatically annulled, waived or rescinded upon the happening of any such events.
(d)Holders may not enforce this Indenture or the Notes, except as provided in this Indenture. The Trustee is under no obligation to exercise any of its rights or powers under this Indenture at the request, order or direction of any of the Holders, unless such Holders have offered to the Trustee indemnity reasonably satisfactory to it.
Section 6.04 Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of Notes at the time then outstanding may on behalf of the Holders of all the Notes waive any Default with respect to such Notes and its consequences by providing written notice thereof to the Issuer and the Trustee, except a Default in the payment of the principal of, premium, if any, or interest on the Notes or a covenant or provision of this Indenture which cannot be modified or amended without the consent of the Holder of each outstanding Note affected. In the case of any such waiver, the Issuer, the Trustee and the Holders shall be restored to their former positions and rights under this Indenture, respectively; provided that no such waiver shall extend to any subsequent or other Default or impair any right consequent thereto.
Section 6.05 Control by Majority.
Subject to the other provisions of this Indenture and applicable law, the Holders of not less than a majority in aggregate principal amount of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it. The Trustee may refuse to follow any direction that conflicts with any law or this Indenture, that the Trustee determines may be unduly prejudicial to the rights of another Holder, or that may involve the Trustee in personal liability; provided that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. In the event the Trustee takes any action or follows any direction pursuant to this Indenture, the Trustee shall be entitled to indemnification satisfactory to the Trustee against any loss or expense caused by taking such action or following such direction.
Section 6.06 Limitation on Suits.
A Holder may not pursue any remedy with respect to this Indenture or the Notes unless:
(i) the Holder gives to the Trustee written notice of a continuing Event of Default;
(ii) the Holder or Holders of at least 25% in principal amount of the outstanding Notes make a written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer and provide to the Trustee indemnity reasonably satisfactory to the Trustee against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 45 days after receipt of the request and the offer and the provision of indemnity; and
(v) during such 45-day period the Holder or Holders of a majority in aggregate principal amount of the outstanding Notes do not give the Trustee a direction in accordance with Section 6.05 which, in the opinion of the Trustee, is inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over such other Holder.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal of and interest 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 the Holder.
Section 6.08 Collection Suit by Trustee.
If a Default in payment of principal or interest specified in clauses (i) or (ii) of Section 6.01(a) 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 and fees remaining unpaid, 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.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relating to the Issuer, its creditors or 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 each of the Trustee and the Agents any amount due to it for the compensation, expenses, disbursements and advances of the Trustee, the Agents and their respective agents and counsel, and any other amounts due the Trustee and the Agents under Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. The Trustee shall be entitled to participate as a member of any official committee of creditors in the matters as it deems necessary or advisable.
Section 6.10 Priorities.
Subject to the provisions of Article 10, if the Trustee collects any money or property pursuant to this Article 6, it shall pay out the money or property in the following order:
First: to the Trustee and the Agents for amounts due under Section 7.07;
Second: to Holders for interest accrued on the Notes, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for interest;
Third: to Holders for principal amounts due and unpaid on the Notes, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal; and
Fourth: to the Issuer or, if applicable, the Guarantors, as their respective interests may appear.
The Trustee, upon prior notice to the Issuer, may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10% in principal amount of the outstanding Notes.
Article 7
TRUSTEE
Section 7.01 Duties of Trustee.
(a)The Trustee, prior to the occurrence of an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge and after the curing of all such Events of Defaults which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. If an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge has occurred and is continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b)Except during the continuance of an Event of Default:
(i)the duties of the Trustee will be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii)in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, with respect to certificates or opinions specifically required by any provision hereof to be furnished to it, the Trustee will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture; provided, however, that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished to it hereunder.
(c)The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i)this paragraph (c) does not limit the effect of paragraph (b) of this Section 7.01;
(ii)the Trustee will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(iii)the Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.
(d)No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability for the performance of any of its duties hereunder or the exercise of any of its rights or powers. The Trustee will be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, unless such Holder has offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.
(e)The Trustee will not be liable for interest on, and will not be obligated to invest, any money received by it except as the Trustee may agree in writing with the Issuer. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Section 7.02 Rights of Trustee.
(a)The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b)Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c)The Trustee may execute any of the trusts or powers hereunder and perform any duties hereunder either directly or through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent appointed with due care.
(d)The Trustee will not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e)Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer will be sufficient if signed by an Officer of the Issuer.
(f)The Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such
Holders have offered to the Trustee indemnity or security satisfactory to it against the losses, liabilities and expenses that might be incurred by it in compliance with such request or direction.
(g)In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(h)The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.
(i)The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Agents, and the Trustee, in each of its capacities hereunder, each Agent and each agent, custodian, and other Person employed to act hereunder.
(j)The Trustee may request that the Issuer and each Guarantor deliver an Officers’ Certificate setting forth the names of individuals and titles of Officers authorized at such time to take specified actions pursuant to this Indenture.
(k)The right of the Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act.
(l)The Trustee shall have no obligation to (i) independently determine or verify the rating of any Notes or if a commencement of any Suspension Period or the Reversion Date has occurred, (ii) make any determination regarding the impact of actions taken during the Suspension Period on STBV’s and its Subsidiaries’ future compliance with their covenants or (iii) notify the Holders of the commencement of the Suspension Period or the Reversion Date.
(m)Notwithstanding any provision herein to the contrary, in no event shall the Trustee 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, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like which restrict or prohibit the providing of the services contemplated by this Indenture, inability to obtain material, equipment, or communications or computer facilities, or the failure of equipment or interruption of communications or computer facilities, and other causes beyond its control whether or not of the same class or kind as specifically named above.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest (within the meaning of the TIA) it must eliminate such conflict within 90 days, apply to the Commission for permission to continue as trustee (if this Indenture has been qualified under the TIA) or resign. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee’s Disclaimer.
The Trustee will not be responsible for and makes no representation as to the validity or adequacy of this Indenture, any related offering material 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 of this Indenture, it will not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it will not be responsible for any statement or recital herein, any statement in the Notes, the Offering Memorandum or any other document in connection with the sale of the Notes or pursuant to this Indenture or the legality or validity of the Notes or this Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is known to the Trustee in accordance with Section 7.02(h), the Trustee will provide to Holders a notice of the Default or Event of Default within 90 days after the Trustee has notice thereof. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest on, any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders.
Section 7.06 [Intentionally Omitted].
Section 7.07 Compensation and Indemnity.
(a)The Issuer will pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services hereunder as agreed between the Issuer and the Trustee. The Trustee’s compensation will not be limited by any law on compensation of a trustee of an express trust. The Issuer will reimburse the Trustee promptly upon request for all reasonable and documented disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses will include the reasonable and documented compensation, disbursements and expenses of the Trustee’s agents and counsel.
(b)The Issuer and each Guarantor, jointly and severally, will indemnify the Trustee and any director, officer, employee or agent of the Trustee and hold each of them harmless for, from and against any and all losses, liabilities, claims, damages or expenses incurred by it (i) arising out of or in connection with the acceptance or administration of its duties under this Indenture, including, without limitation, the reasonable and documented costs and expenses (including the costs and expenses of the Trustee’s agents and counsel) of enforcing this Indenture against the Issuer and the Guarantors (including this Section 7.07) and defending itself against any claim (whether asserted by the Issuer, the Guarantors, any Holder or any other Person) or (ii) arising out of or in connection with the exercise or performance of any of its powers or duties hereunder and/or the exercise of its rights, except to the extent any such loss, liability or expense is attributable to its own negligence, bad faith or willful misconduct. The Trustee will notify the Issuer promptly of any claim of which a Responsible Officer has received written notice for which it may seek indemnity. Failure by the Trustee to so notify the Issuer will not relieve the Issuer or any of the Guarantors of their obligations hereunder. The Issuer or such Guarantor, as the case may be, will defend the claim and the Trustee will cooperate in the defense. The Trustee may have separate counsel and the Issuer and the Guarantors, as applicable, will pay the reasonable and documented fees and expenses of such counsel; provided, however, that the Issuer and any Guarantor shall not be required to pay such fees and expenses if it assumes such indemnified party’s defense and, in such indemnified party’s reasonable
judgment, there is no conflict of interest or potential conflict of interest between the Issuer and the Guarantors, as applicable, and such party in connection with such defense. Neither the Issuer nor any Guarantor need pay for any settlement made without its consent, which consent will not be unreasonably withheld.
(c)The obligations of the Issuer and the Guarantors under this Section 7.07 will survive payment of the Notes, resignation or removal of the Trustee or any Agent, the satisfaction and discharge of this Indenture or other termination of this Indenture.
(d)To secure the Issuer’s and the Guarantors’ payment obligations in this Section 7.07, the Trustee will have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien will survive the satisfaction and discharge of this Indenture.
(e)When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(a)(v) or (vi) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
Section 7.08 Replacement of Trustee.
(a)A resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.
(b)The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Issuer. The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing. The Issuer may remove the Trustee if:
(i)the Trustee fails to comply with Section 7.10 hereof;
(ii)the Trustee is adjudged bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(iii)a custodian, receiver or public officer takes charge of the Trustee or its property; or
(iv)the Trustee becomes incapable of acting.
(c)If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuer will promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.
(d)If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Issuer, or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(e)If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10 hereof, such Holder may petition at the
expense of the Issuer any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(f)A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee will mail a notice of its succession to Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuer’s and the Guarantors’ obligations under Section 7.07 hereof will continue for the benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business (including any corporate trust business contemplated by this Indenture) to, another corporation, the successor corporation without any further act will be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation 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 trust powers, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition.
Section 7.11 Preferential Collection of Claims Against the Issuer.
The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated therein.
Article 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuer may at any time, at the option of its Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes and Note Guarantees upon compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Issuer and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been released from their obligations with respect to all outstanding Notes (including the Note Guarantees) on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose,
Legal Defeasance means that the Issuer and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Guarantees), which will thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in clauses (i) and (ii) below, and to have satisfied all their other obligations under such Notes, the Note Guarantees and this Indenture (and the Trustee, on demand of and at the expense of the Issuer, shall execute instruments acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder:
(i) the rights of Holders of outstanding Notes issued hereunder to receive payments in respect of the principal of, or interest or premium, if any, on such Notes when such payments are due from the trust referred to below;
(ii) the Issuer’s obligations with respect to the Notes issued hereunder concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment;
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the obligations of the Issuer and the Guarantors in connection therewith; and
(iv) this Article 8.
Subject to compliance with this Article 8, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Issuer and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of their obligations under the covenants contained in Sections 4.03, 4.05, 4.08, 4.09, 4.12, 4.13, 4.15, 4.16, 4.17 and 5.01(a)(iii) hereof with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes will 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 will continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes will not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and the Note Guarantees, the Issuer and the Guarantors may omit to comply with and will have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply will not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes and Note Guarantees, will be unaffected thereby. In addition, upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, and clauses (iii), (iv), (v) (with respect to a Significant Subsidiary of STBV), (vi) (with respect to a Significant Subsidiary of STBV), (vii) and (viii) of Section 6.01(a) will not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
(a)In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 hereof:
(i)the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders cash in U.S. dollars, non-callable U.S. Government Securities, or a combination of cash in U.S. dollars and non-callable U.S. Government Securities, in amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants delivered to the Trustee, to pay the principal of, and interest and premium, if any, on the outstanding Notes issued hereunder 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;
(ii)in the case of an election under Section 8.02 hereof, the Issuer has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the Issuer or STBV has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the Issue Date, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel will confirm that, the Holders of the outstanding Notes issued hereunder will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(iii)in the case of an election under Section 8.03 hereof, the Issuer has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes issued hereunder will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(iv)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, or arising in connection with, the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings);
(v)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 Guarantor is a party or by which the Issuer or any Guarantor is bound;
(vi)STBV must deliver to the Trustee an Officers’ Certificate stating that the deposit referred to in clause (i) was not made by the Issuer with the intent of preferring the Holders over the other creditors of the Issuer or any Guarantor or with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer or any Guarantor or others; and
(vii)STBV 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 of the Notes have been complied with.
(b)Notwithstanding the foregoing, the Opinion of Counsel required by clauses (a)(ii) and (a)(iii) above with respect to a Legal Defeasance or a Covenant Defeasance, as applicable, need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable on the maturity date 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.
(c)Upon satisfaction of the conditions set forth herein and upon the request of the Issuer, the Trustee shall acknowledge in writing the discharge of those obligations that the Issuer terminates.
Section 8.05 Deposited Money and U.S. Government Securities to Be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money, non-callable U.S. Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
The Issuer will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable U.S. Government Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.
Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to the Issuer from time to time upon the request of the Issuer any money, non-callable U.S. Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a)(ii) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to the Issuer.
Subject to applicable abandoned property law, any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of, premium, if any, or interest on, any Note and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Issuer on its request or (if then held by the Issuer) will be discharged from such trust; and the Holder of such Note will thereafter be permitted to look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, will 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 The New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Issuer.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable U.S. Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuer’s and the Guarantors’ obligations under this Indenture and the Notes and the Note Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Issuer makes any payment of principal of, premium, if any, or interest on, any Note following the reinstatement of its obligations, the Issuer will 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 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Without the consent of any Holder, the Issuer, the Guarantors (except that, with respect to Sections 9.01(vi) and 9.01(ix) below, the Guarantors need not be a party to a supplemental indenture that solely adds or releases a Note Guarantee) and the Trustee may amend or supplement this Indenture, the Notes or the Note Guarantees:
(i) to cure any ambiguity, mistake, defect or inconsistency;
(ii) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(iii) to provide for the assumption by a Successor Company or a successor company of a Guarantor, as applicable, of the Issuer’s or such Guarantor’s obligations under this Indenture;
(iv) to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights hereunder of any Holder;
(v) to secure the Notes;
(vi) to add a Note Guarantee;
(vii) to conform the text of this Indenture or the Notes to any provision of the “Description of Notes” included in the Offering Memorandum relating to the Notes;
(viii) to provide for the issuance of Additional Notes in accordance with the provisions set forth in this Indenture; or
(ix) to release a Guarantor from its Note Guarantee; provided that such release is in accordance with the applicable provisions of this Indenture;
provided, that the Issuer has delivered to the Trustee an Opinion of Counsel and an Officers’ Certificate, each stating that such amendment or supplement complies with the provisions of this Section 9.01.
Section 9.02 With Consent of Holders of Notes.
(a)Subject to Section 6.07 and Section 9.02(b), the Issuer, the Guarantors and the Trustee, together, with the written consent of the Holder or Holders of a majority in aggregate 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), may amend or supplement this Indenture or the Notes without notice to any other Holders. Subject to Section 6.04, the Holder or Holders of a majority in aggregate principal amount of the Notes then outstanding may waive any existing default or compliance with any provision of this Indenture or the Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes) without notice to any other Holders (except a default in respect of the payment of principal of, premium, if any, or interest on the Notes or a covenant or provision of this Indenture which cannot be modified or amended without the consent of the Holder of each outstanding Note affected).
(b)Notwithstanding Section 9.02(a), without the consent of each Holder of an outstanding Note affected, an amendment, supplement or waiver, including a waiver pursuant to Section 6.04, may not:
(i)reduce the principal amount of Notes issued hereunder whose Holders must consent to an amendment, supplement or waiver;
(ii)reduce the principal of or change the fixed maturity of any Note issued hereunder or alter the provisions with respect to the redemption of the outstanding Notes issued hereunder (other than provisions relating to the covenants described above under Section 4.15, except as set forth in clause (x) below);
(iii)reduce the rate of or change the time for payment of interest on any Note issued hereunder;
(iv)waive a Default or Event of Default in the payment of principal of, or interest or premium, if any, on the outstanding Notes issued hereunder (except a rescission of acceleration of the Notes issued hereunder by the Holders of a majority in aggregate principal amount of the then outstanding Notes issued hereunder with respect to a nonpayment default and a waiver of the payment default that resulted from such acceleration);
(v)make any Note payable in money other than that stated in the Notes;
(vi)make any change in the provisions of this Indenture relating to waivers of past Defaults or impair the right of any Holder to institute suit for the enforcement of any payment on or with respect to the Notes;
(vii)waive a redemption payment with respect to any Note issued hereunder (other than a payment required by Section 4.15, except as set forth in clause (x) below);
(viii)make any change in the ranking or priority of any Note issued hereunder that would adversely affect the Holders;
(ix)modify the Note Guarantees in any manner adverse to the Holders;
(x)amend, change or modify in any material respect the obligation of the Issuer to make and consummate a Change of Control Offer in respect of a Change of Control that has occurred; or
(xi)make any change in the preceding amendment and waiver provisions.
(c)It shall not be necessary for the consent of the Holders under this Section to approve the particular form of any proposed amendment, supplement or waiver but it shall be sufficient if such consent approves the substance thereof.
(d)After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuer shall give to the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuer to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.
Section 9.03 [Intentionally Omitted].
Section 9.04 Revocation and Effect of Consents.
(a)Until an amendment, waiver or supplement becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder 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 or subsequent Holder may revoke the consent as to his Note or portion of his Note by notice to the Trustee or the Issuer received before the date on which the Trustee receives an Officers’ Certificate certifying that the Holders of the requisite principal amount of Notes have consented (and not theretofore revoked such consent) to the amendment, supplement or waiver.
(b)The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver which record date shall be at least 30 days prior to the first solicitation of such consent. If a record date is fixed, then notwithstanding the last sentence of the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date. The Issuer shall inform the Trustee in writing of the fixed record date if applicable.
(c)After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless it makes a change described in any of clauses (i) through (xi) of Section 9.02(b), in which case, the amendment, supplement or waiver shall bind only each Holder of a Note who has consented to it and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting Holder’s Note; provided that any such waiver shall not impair or affect the right of any Holder to bring suit for the enforcement of any such payment on or after such respective dates without the consent of such Holder.
Section 9.05 Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note, the Issuer may require the Holder of the Note to deliver it to the Trustee. The Issuer shall provide the Trustee with an appropriate notation on the Note about the changed terms and cause the Trustee to return it to the Holder at the Issuer’s expense. Alternatively, if the Issuer or the Trustee so determines, the Issuer in exchange for the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms. Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver authorized pursuant to this Article 9; provided, that the Trustee may, but shall not be obligated to, execute any such amendment, supplement or waiver which affects the Trustee’s own rights, duties or immunities under this Indenture. The Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel and an Officers’ Certificate each stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article 9 is authorized or permitted by this Indenture and constitutes the legal, valid and binding obligations of the Issuer enforceable in accordance with its terms. Such Opinion of Counsel and Officers’ Certificate shall be at the expense of the Issuer.
Article 10
GUARANTEES
Section 10.01 Guarantee.
(a)Subject to this Article 10, each of the Guarantors hereby, jointly and severally, and fully and unconditionally, Guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of, this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (i) the principal of, premium, if any, and accrued and unpaid interest and defaulted interest, if any, on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium, if any, and interest and defaulted interest, if any, on the Notes (pursuant to Section 2.12), if lawful (subject in all cases to any applicable grace period provided herein), and all other obligations of the Issuer to the Holders or the Trustee hereunder or thereunder will be promptly paid in full, 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 any of such other obligations, the same will be promptly paid in full when due in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Failing payment when due of any amount so Guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a Guarantee of payment and not a Guarantee of collection.
(b)Each Guarantor hereby agrees that, to the maximum extent permitted under applicable law, its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes or the Trustee with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Subject to Section 6.06, each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that its Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.
(c)If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to any of the Issuer or the Guarantors, any amount paid by any of them to the Trustee or such Holder, the Note Guarantees, to the extent theretofore discharged, shall be reinstated with full force and effect.
(d)Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders or the Trustee in respect of any obligations Guaranteed hereby until payment in full of all obligations Guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Guaranteed hereby may be accelerated as provided in Article 6 for the purposes of its Note 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 declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of its Note Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders or the Trustee under any Note Guarantee.
Section 10.02 Limitation on Guarantor Liability.
(a)Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b)Notwithstanding anything herein to the contrary, the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or
indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i)90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii)90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture.
The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Section 10.03 Execution and Delivery of Guarantee.
(a)To evidence its Note Guarantee set forth in Section 10.01, each Guarantor hereby agrees that a notation of such Note Guarantee (a “Notation of Guarantee”) substantially in the form attached hereto as Exhibit D shall be endorsed by an Officer of such Guarantor by manual or facsimile signature on each Note authenticated and delivered by the Trustee and that this Indenture shall be executed on behalf of such Guarantor by one of its Officers.
(b)Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 shall remain in full force and effect notwithstanding any failure to endorse on each Note a Notation of Guarantee.
(c)If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed, the Note Guarantee shall be valid nevertheless.
(d)The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.
(e)If required by Section 4.17, STBV shall cause such Subsidiaries to execute supplemental indentures to this Indenture and Notations of Guarantee in accordance with Section 4.17 and this Article 10, to the extent applicable.
Section 10.04 Guarantors May Consolidate, Etc., on Certain Terms.
Each Guarantor may consolidate with or merge into or sell its assets to the Issuer or another Guarantor without limitation, or with, into or to any other Persons upon the terms and conditions set forth in Article 5.
Section 10.05 Releases.
The Note Guarantee of a Guarantor (other than the Note Guarantee of STBV, except pursuant to Section 5.01, Article 8 or Article 11) will be automatically released in the event that:
(a)there is a sale, disposition or other transfer (including through merger or consolidation) of (i) all of the Capital Stock (or any sale, disposition or other transfer of Capital Stock (including through merger or consolidation) following which the applicable Guarantor is no longer a Subsidiary of STBV), or (ii) all or substantially all the assets, of the applicable Guarantor;
(b)in the case of any Subsidiary which after the Issue Date is required to provide a Note Guarantee pursuant to Section 4.17, the release or discharge of the Guarantee by such entity of all Indebtedness of STBV or any Subsidiary of STBV or the repayment of all the Indebtedness or Disqualified Stock, in each case, which resulted in an obligation to provide a Note Guarantee;
(c)if the Issuer exercises its Legal Defeasance option or its Covenant Defeasance option as described under Article 8 or if its obligations under this Indenture are discharged in accordance with the terms of this Indenture as described under Article 11; or
(d)such Guarantor is also a guarantor or borrower under the Credit Agreement as in effect on the Issue Date and, at the time of release of its Note Guarantee, (x) has been released from its Guarantee of, and all pledges and security, if any, granted by it in connection with the Credit Agreement, (y) is not an obligor under any Indebtedness (other than Indebtedness permitted to be incurred pursuant to clause (3), (5), (6), (7), (8), (9), (10) and (11) of Section 4.09(b) and (z) does not Guarantee any Indebtedness in excess of $50,000,000 (or its foreign currency equivalent) at such time outstanding of the Issuer or any of the other Guarantors.
Article 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge.
(a)This Indenture will be discharged and will cease to be of further effect as to all Notes issued hereunder, when:
(i)Either:
(A)all the 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 or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, have been delivered to the Trustee for cancellation; or
(B)all the Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the giving of a notice of redemption or otherwise or will become due and payable by reason of the giving of a notice of redemption or otherwise within one
year and the Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereof, in amounts as will be sufficient, without consideration of any reinvestment of interest, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants delivered to the Trustee, to pay and discharge the entire Indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption;
(ii)in the case of subclause (i)(B) above, no Default or Event of Default has occurred and is continuing under this Indenture on the date of the deposit or will occur as a result of the deposit (other than a Default or Event of Default resulting from or arising in connection with borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings) and the deposit will not result in a breach or violation of, or constitute a default under, any other material instrument to which the Issuer or STBV is a party or by which the Issuer or STBV is bound;
(iii)the Issuer has paid or caused to be paid all sums payable by it under this Indenture; and
(iv)the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes issued hereunder at maturity or the redemption date, as the case may be.
(b)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.
(c)Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to subclause (B) of clause (i) of Section 11.01(a), the provisions of Sections 11.02 and 8.06 hereof will survive such satisfaction and discharge. In addition, nothing in this Section 11.01 will be deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the satisfaction and discharge of this Indenture
Section 11.02 Application of Trust Money.
Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or U.S. Government Securities in accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s and any Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof; provided that if the Issuer has made any payment of principal
of, premium, if any, or interest on, any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Securities held by the Trustee or Paying Agent.
Article 12
MISCELLANEOUS
Section 12.01 [Intentionally Omitted].
Section 12.02 Notices.
Any notice, demand, instruction, request, direction or communication by the Issuer, any Guarantor or the Trustee to the others is duly given if in English and in writing and delivered in Person or by first class mail (registered or certified, return receipt requested), facsimile transmission or other electronic transmission or overnight air courier guaranteeing next day delivery, to the others’ address:
If to the Issuer and/or any Guarantor:
Sensata Technologies, Inc.
529 Pleasant Street
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Financial Officer
With a copy to:
Foley Hoag LLP
Seaport West
155 Seaport Boulevard
Boston, MA US 02210-2600
Attention: Malcolm G. Henderson
If to the Trustee:
The Bank of New York Mellon
Corporate Trust Division
240 Greenwich Street, 7th Floor East
New York, NY 10286
Facsimile No.: (212) 815-5366
Attention: Corporate Trust Division
The Issuer, any Guarantor or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.
All notices and communications to the Trustee or any Agent shall be deemed to have been duly given upon actual receipt thereof by such party. All other notices and communications (other than those sent to Holders) will be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and
the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder of a Global Note will be delivered to the Depositary in accordance with its customary procedures. Any notice or communication to a Holder of a Definitive Note will be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Failure to give a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders.
Except with respect to the Trustee and the Agents, if a notice or communication is given in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
In respect of this Indenture, the Trustee shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission; and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information. Each other party agrees to assume all risks arising out of the use of electronic methods, including any non-secure method, such as, but without limitation, by facsimile or electronic mail, to submit instructions, directions, reports, notices or other communications or information to the Trustee, including without limitation, the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties.
If the Issuer gives a notice or communication to Holders, it will give a copy to the Trustee and each Agent at the same time.
Section 12.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or the Notes. The Issuer, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
Section 12.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer or STBV to the Trustee to take or refrain from taking any action under this Indenture, the Issuer or STBV, as applicable, shall furnish to the Trustee:
(i)an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05 hereof) 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; and
(ii)an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
Section 12.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) must comply with the provisions of TIA § 314(e) and must include:
(i)a statement substantially to the effect that the Person making such certificate or opinion has read such covenant or condition;
(ii)a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii)a statement substantially to the effect that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
(iv)a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied; provided, however, that with respect to matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate or certificates of public officials.
Section 12.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders.
No director, officer, employee, incorporator or stockholder of the Issuer, STBV, the Parent, any other direct or indirect parent company of STBV or any Subsidiary of STBV, as such, will have any liability for any obligations of the Issuer or any Guarantor under any Notes, this Indenture, the Note Guarantees, 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 such Notes. The waiver may not be effective to waive liabilities under the federal securities laws, and it is the view of the Commission that such waiver is against public policy.
Section 12.08 Governing Law.
THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 12.09 Jurisdiction; Waiver of Jury Trial.
(a)Each of the Issuer and the Guarantors hereby consents to the non-exclusive jurisdiction of any court of the State of New York or any U.S. federal court, in each case, sitting in the Borough of Manhattan, The City of New York, New York, United States, and any appellate court from any thereof in any action or proceeding arising out of or related to the Notes, this Indenture or the Note Guarantees. Each of the Issuer and the Guarantors hereby
appoints C T Corporation located at 111 Eighth Avenue, New York, New York 10011 as its authorized agent upon which service of process may be served in any action or proceeding brought in any court of the State of New York or any U.S. federal court sitting in the Borough of Manhattan, The City of New York in connection with this Indenture, the Notes or the Note Guarantees.
(b)EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 12.10 Waiver of Immunities.
To the extent that the Issuer or any Guarantor may in any jurisdiction claim for itself or its assets immunity from a suit, execution, attachment, whether in aid of execution, before judgment or otherwise, or other legal process in connection with and as set out in this Indenture, the Notes or the Note Guarantees and to the extent that in any jurisdiction there may be immunity attributed to the Issuer or the Guarantors or the Issuer’s or any Guarantor’s assets, whether or not claimed, the Issuer or any Guarantor, as applicable, irrevocably agrees for the benefit of the Holders not to claim, and irrevocably waives, the immunity to the full extent permitted by law.
Section 12.11 Currency Rate Indemnity.
The U.S. dollar is the sole currency of account and payment for all sums payable by the Issuer or any Guarantor under or in connection with this Indenture, the Notes and the Note Guarantees, including damages. Any amount with respect to this Indenture, the Notes and the Note Guarantees 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 or any Guarantor or otherwise by any Holder or by the Trustee, in respect of any sum expressed to be due to it from the Issuer or any Guarantor will only constitute a discharge to the Issuer or any Guarantor 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).
Section 12.12 Successors.
All agreements of the Issuer in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this Indenture will bind its successors. All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 10.04 hereof.
Section 12.13 Severability.
In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, then (to the extent permitted by applicable law) the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
Section 12.14 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy will be an original, but all of them together represent the same agreement. Delivery of an executed counterpart of a signature page to this Indenture by facsimile or .pdf attachment to an email or by other electronic means shall be effective as delivery of a manually executed counterpart of this Indenture.
Section 12.15 Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
Dated as of September 20, 2019
SIGNATURES
SENSATA TECHNOLOGIES, INC.
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Executive Vice President, Chief Operating Officer and Secretary
SENSATA TECHNOLOGIES B.V.
By: /s/ Gerrit H. Ensing
Name: Gerrit H. Ensing
Title: Director
Signed by Claire Beddow (name of director)
for and on behalf of /s/ Claire Beddow_________
SENSATA TECHNOLOGIES UK FINANCING CO. PLC Director
SENSATA TECHNOLOGIES US, LLC
By: Sensata Technologies UK Financing Co. plc, as its sole member
By: /s/ Claire Beddow
Name: Claire Beddow
Title: Director
SENSATA TECHNOLOGIES US II, LLC
By: Sensata Technologies US, LLC, as its sole member
By: Sensata Technologies UK Financing Co. plc, as its sole member
By: /s/ Claire Beddow
Name: Claire Beddow
Title: Director
KAVLICO CORPORATION
CRYDOM, INC.
NEWALL ELECTRONICS, INC.
BEI NORTH AMERICA LLC
CUSTOM SENSORS & TECHNOLOGIES US CORPORATION
CUSTOM SENSORS & TECHNOLOGIES US LLC
CUSTOM SENSORS & TECHNOLOGIES, INC.
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Vice President
STI HOLDCO, INC.
SENSATA TECHNOLOGIES BULGARIA EOOD
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
SENSATA TECHNOLOGIES BERMUDA LTD.
By: /s/ Melissa Mong
Name: Melissa Mong
Title: Director
SENSATA TECHNOLOGIES HOLLAND B.V.
By: /s/ Gerrit H. Ensing
Name: Gerrit H. Ensing
Title: Director
SENSATA TECHNOLOGIES HOLDING COMPANY MEXICO B.V.,
SENSATA TECHNOLOGIES US COÖPERATIEF U.A.
By: /s/ Gerrit H. Ensing
Name: Gerrit H. Ensing
Title: Director
CDI NETHERLANDS B.V.
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
Signed by Jeffrey Cote (name of director)
for and on behalf of /s/ Jeffrey Cote_________
CUSTOM SENSORS & TECHNOLOGIES NEWCO LTD. Director
Signed by Jeffrey Cote (name of director)
for and on behalf of /s/ Jeffrey Cote_________
ST SCHRADER HOLDING COMPANY UK LIMITED Director
Signed by Steven Beringhause (name of director)
for and on behalf of /s/ Steven Beringhause_________
AUGUST UK HOLDCO LIMITED Director
ST AUGUST LUX COMPANY S.À R.L.
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633 Senningerberg
Luxembourg R.C.S.: B 192229
By: /s/ Gerrit H. Ensing
Name: Gerrit H. Ensing
Title: Manager (Class A)
ST AUGUST LUX INTERMEDIATE HOLDCO S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633 Senningerberg
Luxembourg R.C.S.: B 192214
By: /s/ Gerrit H. Ensing
Name: Gerrit H. Ensing
Title: Manager (Class A)
AUGUST LUX HOLDING COMPANY, S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633 Senningerberg
Luxembourg R.C.S.: B 167704
By: /s/ Gerrit H. Ensing
Name: Gerrit H. Ensing
Title: Manager (Class A)
AUGUST BRAZIL HOLDING COMPANY S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633 Senningerberg
Luxembourg R.C.S.: B 168084
By: /s/ Gerrit H. Ensing
Name: Gerrit H. Ensing
Title: Manager (Class A)
AUGUST LUXUK HOLDING COMPANY S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633 Senningerberg
Luxembourg R.C.S.: B 167757
By: /s/ Gerrit H. Ensing
Name: Gerrit H. Ensing
Title: Manager (Class A)
SENSATA TECHNOLOGIES JAPAN LIMITED
By: /s/ Chang Hwan Song ___________________
Name: Chang Hwan Song
Title: Representative Director
THE BANK OF NEW YORK MELLON, as Trustee, Registrar and Paying Agent
By: /s/ Wanda Camacho
Name: Wanda Camacho
Title: Vice President
[Signature page - Sensata Technologies, Inc. Indenture]
EXHIBIT A
[Face of Note]
[Insert legends required by the Indenture]
[Signature page - Sensata Technologies, Inc. Indenture]
[Insert as appropriate:
144A CUSIP No.: 81728U AA2
144A ISIN: US81728UAA25
Reg S CUSIP No.: U81700 AA1
Reg S ISIN: USU81700AA12]
4.375% Senior Notes due 2030
No. [A][S]-[●] $
SENSATA TECHNOLOGIES, INC.
promises to pay to CEDE & CO. or registered assigns, the principal sum of __________________ DOLLARS [if the Note is a Global Note, add the following: (as revised by the Schedule of Increases and Decreases in Global Note, attached hereto)] on February 15, 2030.
Interest Payment Dates: February 15 and August 15, commencing February 15, 2020.
Additional provisions of this Note are set forth on the other side of this Note.
Record Dates: February 1 and August 1.
Dated: September 20, 2019
[Signature page - Sensata Technologies, Inc. Indenture]
SENSATA TECHNOLOGIES, INC.
By:
Name:
Title:
Dated:
[Signature page - Sensata Technologies, Inc. Indenture]
Dated:
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK MELLON, as Trustee
By:
Authorized Signatory
[Signature page - Sensata Technologies, Inc. Indenture]
[Reverse of Note]
4.375% Senior Notes due 2030
Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
(1) INTEREST. Sensata Technologies, Inc. (the “Issuer”), a Delaware corporation, promises to pay interest on the principal amount of this Note at 4.375% per annum from September 20, 2019 until maturity. The Issuer will pay interest, if any, semi-annually in arrears on February 15 and August 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from September 20, 2019, until the principal hereof is due. The first Interest Payment Date shall be February 15, 2020. The Issuer will pay interest on overdue principal at the rate borne by the Notes, and it shall pay interest on overdue installments of interest at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
(2) METHOD OF PAYMENT. The Issuer will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the February 1 or August 1 next preceding the Interest Payment Date (whether or not a Business Day), even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Issuer will pay principal, premium, if any, and interest on Definitive Notes at the office of the Paying Agent. Such payment will be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
(3) PAYING AGENT AND REGISTRAR. Initially, The Bank of New York Mellon, as the Trustee, will act as Paying Agent and Registrar. The Issuer may change any Paying Agent or Registrar without notice to any Holder. STBV or any of its Subsidiaries may act in any such capacity.
(4) INDENTURE. The Issuer issued the Notes under the Indenture dated as of September 20, 2019 (the “Indenture”) among the Issuer, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all the terms and provisions of the Indenture, and Holders are referred to the Indenture for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
The Notes are unsecured senior obligations of the Issuer. This Note is one of the Initial Notes referred to in the Indenture. The Notes include the Initial Notes and any Additional Notes issued in exchange for Initial Notes or Additional Notes issued pursuant to the Indenture. The Initial Notes and any Additional Notes are treated as a single class of securities under the Indenture. The Indenture imposes certain limitations on the ability of STBV and its Subsidiaries to, among other things, incur Indebtedness (other than the Issuer), create or incur Liens and enter into sale and lease-back transactions. The Indenture also imposes limitations on the ability of the Issuer and each Guarantor to consolidate or merge with or into any other Person or convey, transfer or lease all or substantially all of its property.
[Signature page - Sensata Technologies, Inc. Indenture]
To Guarantee the due and punctual payment of the principal and interest on the Notes and all other amounts payable by the Issuer under the Indenture and the Notes when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Guarantors have, jointly and severally, unconditionally Guaranteed the obligations of the Issuer under the Notes on an unsecured senior basis pursuant to the terms of the Indenture.
(5) OPTIONAL REDEMPTION.
(a)Except pursuant to Sections 3.07(b), 3.07(c) and 4.15(f) of the Indenture, the Notes will not be optionally redeemable by the Issuer; provided, however, the Issuer may acquire the Notes by means other than an optional redemption.
(b)At any time and from time to time, prior to November 15, 2029 (the “First Par Call Date”), the Issuer may redeem the Notes, in whole or in part, at a redemption price equal to the greater of:
(i)100% of the principal amount of the Notes to be redeemed then outstanding; and
(ii)as determined by an Independent Investment Banker, the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed that would be due if such Notes matured on the First Par Call Date (not including any portion of such payments of interest accrued to the date of redemption) discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) using a discount rate equal to the Adjusted Treasury Rate for the Notes plus 50 basis points;
plus, in either of the above cases, accrued and unpaid interest, if any, to, but excluding, the date of redemption of the Notes to be redeemed (subject to the right of Holders of record on the relevant record date to receive interest due on the related Interest Payment Date).
At any time and from time to time on or after the First Par Call Date, the Issuer may redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed then outstanding, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption of the Notes to be redeemed (subject to the right of Holders of record on the relevant record date to receive interest due on the related Interest Payment Date).
(c)The Issuer may, at its option, redeem the Notes, in whole but not in part, at any time upon not less than 15 days’ nor more than 30 days’ notice to the Holders (which notice shall be irrevocable and given in accordance with Section 3.03 of the Indenture), at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the redemption date, premium, if any, and all Additional Amounts, if any, then due and which will become due on the date of redemption as a result of the redemption or otherwise, if the Issuer determines in good faith that the Issuer or any Guarantor is, or on the next date on which any amount would be payable in respect of the Notes, would be obligated to pay Additional Amounts in respect of the Notes pursuant to the terms and conditions thereof (but, in the case of a Guarantor, only if the payment giving rise to such requirement cannot be made by the Issuer or another Guarantor without the obligation to pay Additional Amounts), which the Issuer or such Guarantor, as the case may be, cannot avoid by the use of reasonable measures available to it (including, without limitation, making payment through a Paying Agent located in another jurisdiction), as a result of:
[Signature page - Sensata Technologies, Inc. Indenture]
(1) any change in, or amendment to, the laws or treaties (or any regulations, official guidance or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction affecting taxation which becomes effective on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction that arises after the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under the Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder); or
(2) any change in the official application, administration, or interpretation of the laws, treaties, regulations, official guidance or rulings of any Relevant Taxing Jurisdiction (including a holding, judgment, or order by a court of competent jurisdiction), on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction that arises after the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under the Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder).
Notwithstanding the foregoing, the Issuer may not redeem the Notes under this provision if a Relevant Taxing Jurisdiction changes and the Issuer is obligated to pay Additional Amounts as a result of a Change in Tax Law of such Relevant Taxing Jurisdiction which was officially announced at the time the latter became a Relevant Taxing Jurisdiction.
Notwithstanding the foregoing, no such notice of redemption will be given (i) earlier than 90 days prior to the earliest date on which the Issuer or any Guarantor, would be obliged to make such payment of Additional Amounts or withholding if a payment in respect of the Notes or the relevant Note Guarantee, as the case may be, were then due and (ii) unless at the time such notice is given, the obligation to pay Additional Amounts remains in effect.
(e) Except for redemption pursuant to Section 3.07(c) of the Indenture, notices of optional redemption will be given at least 30 but not more than 60 days before the redemption date to each Holder of Notes to be redeemed in accordance with Section 12.02 of the Indenture, except that redemption notices may be given more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture.
(6) MANDATORY REDEMPTION. The Issuer is not required to make any mandatory redemption or sinking fund payments with respect to the Notes.
(7) REPURCHASE AT THE OPTION OF HOLDER. If a Change of Control occurs, unless the Issuer at such time has given notice of redemption with respect to all outstanding Notes, each Holder will have the right to require the Issuer to repurchase all or any part (in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess thereof) of that Holder’s Notes pursuant to a change of control offer (the “Change of Control Offer”) on the terms set forth in the Indenture. In the Change of Control Offer, the Issuer will offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest on the Notes repurchased, to, but excluding, the Change of Control Payment Date. Within 30 days following any Change of Control, unless the Issuer at such time has given notice of redemption with respect to all outstanding Notes, the Issuer will give notice to each Holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is given.
[Signature page - Sensata Technologies, Inc. Indenture]
(8) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in minimum denominations of $2,000 (the “Minimum Dollar Denomination”) and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuer need not register the transfer of or exchange any Note selected for redemption in whole or in part or subject to purchase in a Change of Control Offer, except the unredeemed or unpurchased portion of any Note being redeemed or purchased in part. Also, the Issuer need not exchange or register the transfer of any Notes for a period of 15 days before the day the Issuer gives notice of redemption of the Notes or makes a Change of Control Offer and ending at the close of business on the day notice of redemption is given or the Change of Control Offer is made.
(9) PERSONS DEEMED OWNERS. The registered Holder of a Note shall be treated as its owner for all purposes.
(10) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent of the Issuer and Holders of a majority in aggregate principal amount of the then outstanding Notes, including Additional Notes, if any, voting as a single class, and any existing Default or Event or Default or compliance with any provision of the Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes, including Additional Notes, if any, voting as a single class. Without the consent of any Holder of a Note, the Indenture, the Notes or the Note Guarantees may be amended or supplemented:
(i) to cure any ambiguity, mistake, defect or inconsistency;
(ii) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(iii) to provide for the assumption by a Successor Company or a successor company of a Guarantor, as applicable, of the Issuer’s or such Guarantor’s obligations under the Indenture;
(iv) to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights hereunder of any Holder;
(v) to secure the Notes;
(vi) to add a Note Guarantee;
(vii) to conform the text of the Indenture or the Notes to any provision of the “Description of Notes” included in the Offering Memorandum relating to the Notes;
(viii) to provide for the issuance of Additional Notes in accordance with the provisions set forth in the Indenture; or
(ix) to release a Guarantor from its Note Guarantee; provided that such release is in accordance with the applicable provisions of the Indenture;
[Signature page - Sensata Technologies, Inc. Indenture]
provided, that the Issuer has delivered to the Trustee an Opinion of Counsel and an Officers’ Certificate, each stating that such amendment or supplement complies with the provisions of Section 9.01 of the Indenture.
(11) DEFAULTS AND REMEDIES. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency with respect to the Issuer, STBV, any Subsidiary of STBV that is a Significant Subsidiary or any group of Subsidiaries of STBV that, taken together, would constitute a Significant Subsidiary of STBV, all outstanding Notes will become due and payable immediately without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Holders of a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may, on behalf of the Holders of all of the Notes, rescind an acceleration or waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of the principal of, premium, if any, or interest on the Notes or a covenant or provision of the Indenture which cannot be modified or amended without the consent of the Holder of each outstanding Note affected. STBV is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and STBV is required, upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default and the remedial action STBV proposes to take in connection therewith.
(12) DISCHARGE AND DEFEASANCE. Subject to certain conditions, the Issuer at any time may terminate some or all of its obligations under the Notes, the Note Guarantees and the Indenture if the Issuer deposits with the Trustee money or U.S. Government Securities for the payment of principal of and interest on the Notes to redemption or maturity, as the case may be.
(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for STBV or its Affiliates, and may otherwise deal with STBV or its Affiliates, as if it were not the Trustee.
(14) NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Issuer, STBV, the Parent, any other direct or indirect parent entity of STBV or any Subsidiary of STBV, as such, will have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
(15) AUTHENTICATION. This Note will not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
(16) ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(17) CUSIP NUMBERS, ISINS. The Issuer has caused CUSIP numbers and ISINs to be printed on the Notes, and the Trustee may use CUSIP numbers and ISINs in notices
[Signature page - Sensata Technologies, Inc. Indenture]
of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption, and reliance may be placed only on the other identification numbers placed thereon.
(18) GOVERNING LAW. THE LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES.
(19) JURISDICTION; WAIVER OF JURY TRIAL. (a) Each of the Issuer and the Guarantors has consented to the non-exclusive jurisdiction of any court of the State of New York or any U.S. federal court, in each case, sitting in the Borough of Manhattan, The City of New York, New York, United States, and any appellate court from any thereof in any action or proceeding arising out of or related to this Note, the Indenture or the Note Guarantees. Each of the Issuer and the Guarantors has appointed C T Corporation located at 111 8th Avenue, New York, New York 10011 as its authorized agent upon which service of process may be served in any action or proceeding brought in any court of the State of New York or any U.S. federal court sitting in the Borough of Manhattan, The City of New York in connection with the Indenture, this Note or the Note Guarantees.
(b) EACH OF THE PARTIES TO THE INDENTURE HAS IRREVOCABLY WAIVED ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE INDENTURE, THIS NOTE, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(20) WAIVER OF IMMUNITIES. To the extent that the Issuer or any Guarantor may in any jurisdiction claim for itself or its assets immunity from a suit, execution, attachment, whether in aid of execution, before judgment or otherwise, or other legal process in connection with and as set out in the Indenture, this Note or the Note Guarantees and to the extent that in any jurisdiction there may be immunity attributed to the Issuer or the Guarantors or the Issuer’s or any Guarantor’s assets, whether or not claimed, the Issuer or any Guarantor, as applicable, has irrevocably agreed for the benefit of the Holders not to claim, and irrevocably waived, the immunity to the full extent permitted by law.
(21) CURRENCY RATE INDEMNITY. The U.S. dollar is the sole currency of account and payment for all sums payable by the Issuer or any Guarantor under or in connection with the Notes, including damages. Any amount with respect to the Notes or the Note Guarantee 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 or any Guarantor or otherwise by any Holder or by the Trustee, in respect of any sum expressed to be due to it from the Issuer or any Guarantor will only constitute a discharge to the Issuer or any Guarantor 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).
The Issuer will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:
Sensata Technologies Inc.
529 Pleasant Street
[Signature page - Sensata Technologies, Inc. Indenture]
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Financial Officer
[Signature page - Sensata Technologies, Inc. Indenture]
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
(Insert assignee’s legal name)
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date:
Your Signature:
(Sign exactly as your name
appears on the face of this Note)
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
[Signature page - Sensata Technologies, Inc. Indenture]
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.15 of the Indenture, check the box below:
Section 4.15
If you want to elect to have only part of the Note purchased by the Issuer pursuant to Section 4.15 of the Indenture, state the amount you elect to have purchased:
$
Date:
Your Signature:
(Sign exactly as your name
appears on the face of this Note)
Tax Identification No.:
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
[Signature page - Sensata Technologies, Inc. Indenture]
SCHEDULE OF INCREASES AND DECREASES OF INTERESTS IN THE GLOBAL NOTE
[To be inserted for 144A Global Note]
The following transfer or exchange of a part of this 144A Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this 144A Global Note, or to reflect a redemption or repurchase of the Notes and cancellation, have been made:
| | | | | | | | | | | | | | |
| Date of Increase or Decrease | Amount of decrease in Principal Amount at Maturity of this Global Note | Amount of increase in Principal Amount at Maturity of this Global Note | Principal Amount at Maturity of this Global Note following such decrease
(or increase) | Signature of authorized officer of Trustee or Custodian |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
[To be inserted for Regulation S Global Note]
The following transfer or exchange of a part of this Regulation S Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Regulation S Global Note, or to reflect a redemption or repurchase of the Notes and cancellation, have been made:
| | | | | | | | | | | | | | |
| Date of Increase or Decrease | Amount of decrease in Principal Amount at Maturity of this Global Note | Amount of increase in Principal Amount at Maturity of this Global Note | Principal Amount at Maturity of this Global Note following such decrease
(or increase) | Signature of authorized officer of Trustee or Custodian |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
[Signature page - Sensata Technologies, Inc. Indenture]
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Sensata Technologies, Inc.
529 Pleasant Street
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Financial Officer
The Bank of New York Mellon
Corporate Trust Division
240 Greenwich Street, 7th Floor East
New York, NY 10286
Facsimile No.: (212) 815-5366
Attention: Corporate Trust Division
Re: 4.375% Senior Notes due 2030
Reference is hereby made to the Indenture, dated as of September 20, 2019 (the “Indenture”), among Sensata Technologies, Inc., a Delaware corporation, as issuer (the “Issuer”), the Guarantors party thereto and The Bank of New York Mellon, a New York banking corporation, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
___________________, (the “Transferor”) owns and proposes to transfer the Note[s] or interests in such Note[s] specified in Annex A hereto, in the principal amount of $___________ in such Note[s] or interests (the “Transfer”), to ___________________________ (the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. ___ Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.
2. ___ Check if Transferee will take delivery of a beneficial interest in a Legended Regulation S Global Note or a Restricted Definitive Note pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated,
the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Legended Regulation S Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.
3.___ Check and complete if Transferee will take delivery of a beneficial interest in a Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):
(a)__ such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;
or
(b)__ such Transfer is being effected to Sensata Technologies B.V. or a subsidiary thereof;
or
(c)__ such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act;
or
(d)__ such Transfer is being effected to an Institutional Accredited Investor and pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Note or Restricted Definitive Notes and the requirements of the exemption claimed, which certification is supported by if such Transfer is in respect of a principal amount of Notes at the time of transfer of less than $100,000, an opinion of counsel acceptable to the Issuer provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the effect that such Transfer is in compliance with the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Notes and in the Indenture and the Securities Act.
4. ___ Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a)__ Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
(b)__ Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States, (ii) the Transfer is being made after the expiration of the Restricted Period, and (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
(c)__ Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
| | | | | |
| |
| [Insert Name of Transferor] |
| By: |
| Name:
Title: |
| |
| Dated: | |
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) __ a beneficial interest in the:
(i) __ 144A Global Note (CUSIP _________), or
(ii) __ Regulation S Global Note (CUSIP _________); or
(b) __ a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) __ a beneficial interest in the:
(i) __ 144A Global Note (CUSIP _________), or
(ii) __ Regulation S Global Note (CUSIP _________), or
(iii) __ Unrestricted Global Note (CUSIP _________); or
(b) __ a Restricted Definitive Note; or
(c) __ an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Sensata Technologies, Inc.
529 Pleasant Street
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Financial Officer
The Bank of New York Mellon
Corporate Trust Division
240 Greenwich Street, 7th Floor East
New York, NY 10286
Facsimile No.: (212) 815-5366
Attention: Corporate Trust Division
Re: 4.375% Senior Notes due 2030
Reference is hereby made to the Indenture, dated as of September 20, 2019 (the “Indenture”), among Sensata Technologies, Inc., a Delaware corporation, as issuer (the “Issuer”), the Guarantors party thereto and The Bank of New York Mellon, a New York banking corporation, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
__________________________, (the “Owner”) owns and proposes to exchange the Note[s] or interests in such Note[s] specified herein, in the principal amount of $____________ (CUSIP ____________; ISIN ____________) in such Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note
(a)__ Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(b)__ Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend
are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(c)__ Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(d)__ Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes
(a)__ Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.
(b)__ Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE] ____ 144A Global Note/ ____ Regulation S Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
| | | | | |
| |
| [Insert Name of Transferor] |
| By: |
| Name:
Title: |
| |
| Dated: | |
EXHIBIT D
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally Guaranteed, to the extent set forth in and subject to the provisions in the Indenture dated as of September 20, 2019, (as amended, modified or supplemented from time to time, the “Indenture”) among Sensata Technologies, Inc., a Delaware corporation, the guarantors party thereto, and The Bank of New York Mellon, a New York banking corporation, as trustee (the “Trustee”), (a) prompt payment of the principal of, premium, if any, and accrued and unpaid interest and defaulted interest, if any, on the Notes when due, whether at maturity, by acceleration, redemption or otherwise, and the prompt payment of interest on overdue principal, premium, if any, and interest and defaulted interest, if any, on the Notes (pursuant to Section 2.12 of the Indenture), if lawful (subject in all cases to any applicable grace periods provided in the Indenture and the Notes) when due, and all other obligations of the Issuer to the Holders or the Trustee under the Indenture and the Notes will be promptly paid in full, all in accordance with the terms of the Indenture and the Notes and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same will be promptly paid in full when due in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the Note Guarantee and the Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee (including Sections 12.08 and 12.09 of the Indenture on Governing Law and Jurisdiction, respectively). Each Holder of a Note, by accepting the same, agrees to and shall be bound by such provisions. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS HEREOF, each Guarantor has caused this Notation of Guarantee to be signed manually or by facsimile by its duly authorized officer.
[NAME OF GUARANTOR]
EXHIBIT E
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of ________________, 20___, among __________________ (the “New Guarantor”), a subsidiary of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (“STBV”), Sensata Technologies, Inc., a Delaware corporation (the “Issuer”), and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Issuer and certain Subsidiaries of STBV have heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified, the “Indenture”), dated as of September 20, 2019 providing for the issuance of 4.375% Senior Notes due 2030 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantor shall execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantor shall unconditionally Guarantee all of the Issuer’s obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and the Issuer are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the 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. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Issuer, STBV, the Parent, any other direct or indirect parent entity of STBV or any Subsidiary of STBV, as such, will have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to the New Guarantor shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. JURISDICTION; WAIVER OF JURY TRIAL. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantee of the New Guarantor or this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
[NEW GUARANTOR]
By:
Name:
Title:
SENSATA TECHNOLOGIES, INC.
By:
Name:
Title:
THE BANK OF NEW YORK MELLON as Trustee
By:
Name:
Title:
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of May 24, 2021, among GIGAVAC, LLC (the “New US Guarantor”), a subsidiary of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (“STBV”), Sensata Technologies Malta Ltd (the “New Maltese Guarantor”), a subsidiary of STBV, Sensata Malta Holding Ltd (the “New Maltese Holdco Guarantor” and, together with the New Maltese Guarantor and the New US Guarantor, the “New Guarantors”), a subsidiary of STBV, Sensata Technologies, Inc., a Delaware corporation (the “Issuer”), and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Issuer and certain other Subsidiaries of STBV have heretofore executed and delivered to the Trustee an indenture, dated as of September 20, 2019 (as amended, supplemented or otherwise modified, the “Indenture”), providing for the issuance by the Issuer of 4.375% Senior Notes due 2030 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantors shall execute and deliver to the Trustee a supplemental indenture pursuant to which each New Guarantor shall unconditionally Guarantee all of the Issuer’s obligations under the Notes and the Indenture on the terms and conditions set forth herein and therein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and the Issuer are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, each 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. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture, and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Issuer, STBV, the Parent, any other direct or indirect parent entity of STBV or any Subsidiary of STBV, as such, will have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to each New Guarantor shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. JURISDICTION; WAIVER OF JURY TRIAL. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantee of each New Guarantor or this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
GIGAVAC, LLC, as the New US Guarantor
By: Sensata Technologies, Inc., its sole member
By: /s/ Frank E. DeVita
Name: Frank E. DeVita
Title: Treasurer
SENSATA TECHNOLOGIES MALTA LTD, as the New Maltese Guarantor
By: /s/ Shannon M. Votava
Name: Shannon M. Votava, Esq.
Title: Director
SENSATA MALTA HOLDING LTD, as the New Maltese Subsidiary Guarantor
By: /s/ Shannon M. Votava
Name: Shannon M. Votava, Esq.
Title: Director
SENSATA TECHNOLOGIES, INC., as the Issuer
By: /s/ Paul Vasington
Name: Paul Vasington
Title: EVP and Chief Financial Officer
THE BANK OF NEW YORK MELLON, as Trustee
By: /s/ Wanda Camacho
Name: Wanda Camacho
Title: Vice President
[Signature Page to Supplemental Indenture – 2030 Notes]
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of October 24, 2022, among Dynapower Company LLC, a Delaware limited liability company (“Dynapower”) and an indirect subsidiary of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (“STBV”), Xirgo Technologies, LLC, a Delaware limited liability company (“Xirgo”) and SmartWitness USA, LLC, an Illinois limited liability company (“SmartWitness” and, together with Dynapower and Xirgo, the “New Guarantors” and each a “New Guarantor”) and an indirect subsidiary of STBV, and Sensata Technologies, Inc., a Delaware corporation (the “Issuer”), and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Issuer, STBV and certain other Subsidiaries of STBV have heretofore executed and delivered to the Trustee an indenture, dated as of September 20, 2019 (as amended, supplemented or otherwise modified, the “Indenture”), providing for the issuance by the Issuer of 4.375% Senior Notes due 2030 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantors shall execute and deliver to the Trustee a supplemental indenture pursuant to which each New Guarantor shall unconditionally Guarantee all of the Issuer’s obligations under the Notes and the Indenture on the terms and conditions set forth herein and therein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and the Issuer are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, each 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. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture, and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Issuer, STBV, the Parent, any other direct or indirect parent entity of STBV or any Subsidiary of STBV, as such, will have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Indenture or the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to each New Guarantor shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. JURISDICTION; WAIVER OF JURY TRIAL. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantee of each New Guarantor or this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
DYNAPOWER COMPANY LLC, as a New Guarantor
By: DP Acquisition Corporation, its sole member
By: /s/ Frank E. DeVita__________________
Name: Frank E. DeVita
Title: Treasurer
XIRGO TECHNOLOGIES, LLC, as a New Guarantor
By: Xirgo Technologies Intermediate Holdings,
LLC, its sole member
By: Sensata Technologies, Inc., its managing
member
By: /s/ Frank E. DeVita______________
Name: Frank E. DeVita
Title: Treasurer
SMARTWITNESS USA, LLC, as a New Guarantor
By: SmartWitness Holdings, Inc., its sole member
By: /s/ Frank E. DeVita__________________
Name: Frank E. DeVita
Title: Treasurer
SENSATA TECHNOLOGIES, INC., as the Issuer
By: /s/ Frank E. DeVita__________________
Name: Frank E. DeVita
Title: Treasurer
[Signature Page to Supplemental Indenture – STI 2030 Notes]
THE BANK OF NEW YORK MELLON, as Trustee
By: /s/ Teresa H. Wyszomierski_____________
Name: Teresa H. Wyszomierski
Title: Vice President
[Signature Page to Supplemental Indenture – STI 2030 Notes]
SENSATA TECHNOLOGIES, INC.
AND
THE GUARANTORS NAMED HEREIN
$750,000,000
3.750% SENIOR NOTES DUE 2031
___________________
INDENTURE
Dated as of August 17, 2020
___________________
THE BANK OF NEW YORK MELLON
Trustee
___________________
TABLE OF CONTENTS
Page
| | | | | | | | |
| ARTICLE 1 |
| DEFINITIONS AND INCORPORATION BY REFERENCE |
| Section 1.01 | Definitions | 1 |
| Section 1.02 | Other Definitions | 22 |
| Section 1.03 | Incorporation by Reference of Certain Provisions and Defined Terms in the Trust Indenture Act | 22 |
| Section 1.04 | Rules of Construction | 23 |
| | |
| ARTICLE 2 |
| THE NOTES |
| Section 2.01 | Form and Dating | 24 |
| Section 2.02 | Execution and Authentication | 25 |
| Section 2.03 | Agents | 25 |
| Section 2.04 | Paying Agent to Hold Money in Trust | 26 |
| Section 2.05 | Holder Lists | 26 |
| Section 2.06 | Transfer and Exchange | 26 |
| Section 2.07 | Replacement Notes | 38 |
| Section 2.08 | Outstanding Notes | 38 |
| Section 2.09 | Treasury Notes | 39 |
| Section 2.10 | Temporary Notes | 39 |
| Section 2.11 | Cancellation | 39 |
| Section 2.12 | Defaulted Interest | 39 |
| Section 2.13 | CUSIP Numbers and ISIN Numbers | 40 |
| | |
| ARTICLE 3 |
| REDEMPTION AND PREPAYMENT |
| Section 3.01 | Notices to Trustee | 40 |
| Section 3.02 | Selection of Notes to Be Redeemed | 40 |
| Section 3.03 | Notice of Optional Redemption | 41 |
| Section 3.04 | Effect of Notice of Redemption | 42 |
| Section 3.05 | Deposit of Redemption Price | 42 |
| Section 3.06 | Notes Redeemed in Part | 42 |
| Section 3.07 | Optional Redemption | 42 |
| | |
| | | | | | | | |
| ARTICLE 4 |
| COVENANTS |
| Section 4.01 | Payment of Notes | 44 |
| Section 4.02 | Maintenance of Office or Agency | 48 |
| Section 4.03 | Reports | 48 |
| Section 4.04 | Compliance Certificate | 50 |
| Section 4.05 | Corporate Existence | 50 |
| Section 4.06 | [Intentionally Omitted] | 50 |
| Section 4.07 | [Intentionally Omitted] | 51 |
| Section 4.08 | Limitation on Sale and Lease‑Back Transactions | 51 |
| Section 4.09 | Limitation on Subsidiary Debt | 51 |
| Section 4.10 | [Intentionally Omitted] | 54 |
| Section 4.11 | [Intentionally Omitted] | 54 |
| Section 4.12 | Limitation on Liens | 54 |
| Section 4.13 | Business Activities | 54 |
| Section 4.14 | Payment of Taxes and Other Claims | 54 |
| Section 4.15 | Offer to Repurchase upon Change of Control | 55 |
| Section 4.16 | Payments for Consent | 56 |
| Section 4.17 | Additional Guarantees | 56 |
| Section 4.18 | [Intentionally Omitted] | 56 |
| Section 4.19 | Suspension of Guarantees Upon Change in Ratings | 56 |
| Section 4.20 | Compliance with Laws | 57 |
| Section 4.21 | Waiver of Stay, Extension or Usury Laws | 57 |
| | |
| ARTICLE 5 |
| SUCCESSORS |
| Section 5.01 | Merger, Consolidation, or Sale of Assets | 58 |
| | |
| ARTICLE 6 |
| DEFAULTS AND REMEDIES |
| Section 6.01 | Events of Default | 59 |
| Section 6.02 | Acceleration | 61 |
| Section 6.03 | Other Remedies | 63 |
| Section 6.04 | Waiver of Past Defaults | 63 |
| Section 6.05 | Control by Majority | 64 |
| Section 6.06 | Limitation on Suits | 64 |
| Section 6.07 | Rights of Holders of Notes to Receive Payment | 64 |
| Section 6.08 | Collection Suit by Trustee | 64 |
| Section 6.09 | Trustee May File Proofs of Claim | 65 |
| Section 6.10 | Priorities | 65 |
| Section 6.11 | Undertaking for Costs | 65 |
| | | | | | | | |
| ARTICLE 7 |
| TRUSTEE |
| Section 7.01 | Duties of Trustee | 66 |
| Section 7.02 | Rights of Trustee | 67 |
| Section 7.03 | Individual Rights of Trustee | 68 |
| Section 7.04 | Trustee’s Disclaimer | 68 |
| Section 7.05 | Notice of Defaults | 68 |
| Section 7.06 | [Intentionally Omitted] | 69 |
| Section 7.07 | Compensation and Indemnity | 69 |
| Section 7.08 | Replacement of Trustee | 70 |
| Section 7.09 | Successor Trustee by Merger, Etc. | 70 |
| Section 7.10 | Eligibility; Disqualification | 71 |
| Section 7.11 | Preferential Collection of Claims Against the Issuer | 71 |
| | |
| ARTICLE 8 |
| LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
| Section 8.01 | Option to Effect Legal Defeasance or Covenant Defeasance | 71 |
| Section 8.02 | Legal Defeasance and Discharge | 71 |
| Section 8.03 | Covenant Defeasance | 72 |
| Section 8.04 | Conditions to Legal or Covenant Defeasance | 72 |
| Section 8.05 | Deposited Money and U.S. Government Securities to Be Held in Trust; Other Miscellaneous Provisions | 73 |
| Section 8.06 | Repayment to the Issuer | 74 |
| Section 8.07 | Reinstatement | 74 |
| | |
| ARTICLE 9 |
| AMENDMENT, SUPPLEMENT AND WAIVER |
| Section 9.01 | Without Consent of Holders of Notes | 74 |
| Section 9.02 | With Consent of Holders of Notes | 75 |
| Section 9.03 | [Intentionally Omitted] | 77 |
| Section 9.04 | Revocation and Effect of Consents | 77 |
| Section 9.05 | Notation on or Exchange of Notes | 77 |
| Section 9.06 | Trustee to Sign Amendments, Etc. | 77 |
| | |
| ARTICLE 10 |
| GUARANTEES |
| Section 10.01 | Guarantee | 78 |
| Section 10.02 | Limitation on Guarantor Liability | 79 |
| Section 10.03 | Execution and Delivery of Guarantee | 79 |
| Section 10.04 | Guarantors May Consolidate, Etc., on Certain Terms | 80 |
| Section 10.05 | Releases | 80 |
| | | | | | | | |
| ARTICLE 11 |
| SATISFACTION AND DISCHARGE |
| Section 11.01 | Satisfaction and Discharge | 81 |
| Section 11.02 | Application of Trust Money | 82 |
| | |
| ARTICLE 12 |
| MISCELLANEOUS |
| Section 12.01 | [Intentionally Omitted] | 82 |
| Section 12.02 | Notices | 82 |
| Section 12.03 | Communication by Holders of Notes with Other Holders of Notes | 84 |
| Section 12.04 | Certificate and Opinion as to Conditions Precedent | 84 |
| Section 12.05 | Statements Required in Certificate or Opinion | 84 |
| Section 12.06 | Rules by Trustee and Agents | 85 |
| Section 12.07 | No Personal Liability of Directors, Officers, Employees and Stockholders | 85 |
| Section 12.08 | Governing Law | 85 |
| Section 12.09 | Jurisdiction; Waiver of Jury Trial | 85 |
| Section 12.10 | Waiver of Immunities | 85 |
| Section 12.11 | Currency Rate Indemnity | 86 |
| Section 12.12 | Successors | 86 |
| Section 12.13 | Severability | 86 |
| Section 12.14 | Counterpart Originals | 86 |
| Section 12.15 | Table of Contents, Headings, Etc. | 86 |
it A FORM OF NOTEExhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF NOTATION OF GUARANTEE
Exhibit E FORM OF SUPPLEMENTAL INDENTURE
INDENTURE dated as of August 17, 2020 among Sensata Technologies, Inc. a Delaware corporation (the “Issuer”), the Guarantors (as defined herein) and The Bank of New York Mellon, a New York banking corporation, as Trustee. The Issuer is an indirect wholly owned subsidiary of Sensata Technologies Holding plc (“Parent”) and an indirect wholly owned subsidiary of Sensata Technologies B.V. (“STBV”) on the Issue Date.
The Issuer, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined herein) of (a) the $750,000,000 aggregate principal amount of the Issuer’s 3.750% Senior Notes due 2031 (the “Initial Notes”) and (b) any Additional Notes (as defined herein) that may be issued after the date hereof (all such securities in clauses (a) and (b) being referred to collectively as the “Notes”):
Article 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
“144A Global Note” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will initially be issued in a denomination equal to the outstanding principal amount at maturity of the Notes initially sold in reliance on Rule 144A.
“2023 Notes” means the $500,000,000 aggregate principal amount of 4.875% Senior Notes due 2023 issued by STBV and Guaranteed by the Issuer and certain other of STBV’s Subsidiaries.
“2024 Notes” means the $400,000,000 aggregate principal amount of 5.625% Senior Notes due 2024 issued by STBV and Guaranteed by the Issuer and certain other of STBV’s Subsidiaries.
“2025 Notes” means the $700,000,000 aggregate principal amount of 5.00% Senior Notes due 2025 issued by STBV and Guaranteed by the Issuer and certain other of STBV’s Subsidiaries.
“2026 Notes” means the $750,000,000 aggregate principal amount of 6.250% Senior Notes due 2026 issued by STUK and Guaranteed by STBV, the Issuer and certain other of STBV’s Subsidiaries.
“2030 Notes” means the $450,000,000 aggregate principal amount of 4.375% Senior Notes due 2030 issued by the Issuer and Guaranteed by STBV and certain other of STBV’s Subsidiaries.
“Additional Notes” means additional Notes (other than the Initial Notes) issued under this Indenture after the Issue Date in accordance with Sections 2.02 and 4.09 hereof, as part of the same series as the Initial Notes.
“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” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), 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.
“Agent” means any Registrar, co-registrar, Paying Agent, transfer agent, additional paying agent or other agent appointed hereunder.
“Aggregate Debt” means the sum of the following as of the date of determination: (1) the sum of the then outstanding aggregate principal amount of (a) the Indebtedness of STBV and its Subsidiaries incurred after the Issue Date and secured by Liens not permitted by Section 4.12(a) and (b) Indebtedness of STBV and its Subsidiaries secured by a Lien under the Credit Agreement that is outstanding on the Issue Date less the amount of such Indebtedness that has subsequently been repaid; (2) the then outstanding aggregate principal amount of all Subsidiary Debt incurred after the Issue Date and not permitted by Section 4.09(b); provided that any such Subsidiary Debt will be excluded from this clause (2) to the extent that such Subsidiary Debt is included in clause (1) or (3) of this definition; and (3) the then existing Attributable Liens of STBV and its Subsidiaries in respect of sale and lease-back transactions entered into after the Issue Date pursuant to Section 4.08(b); provided that any such Attributable Liens will be excluded from this clause (3) to the extent that the Indebtedness relating thereto is included in clause (1) or (2) of this definition.
“Applicable Premium” means, with respect to any Note on any redemption date and as calculated by the Issuer, the greater of:
(1) 1.0% of the principal amount of such Note; and
(2) the excess, if any, of (a) the present value at such redemption date of (i) the redemption price of such Note that would apply if such Note were redeemed on February 15, 2026 (such redemption price (expressed in percentage of principal amount) being set forth in the table appearing in Section 3.07(c) hereof), plus (ii) all remaining scheduled payments of interest due on such Note to and including February 15, 2026 (excluding accrued but unpaid interest, if any, to, but excluding, the redemption date), with respect to each of subclause (i) and (ii), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over (b) the principal amount of such Note.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the relevant Depositary that apply to such transfer or exchange.
“Attributable Liens” means in connection with a sale and lease-back transaction the lesser of: (1) the fair market value of the assets subject to such transaction, as determined in good faith by STBV’s Board of Directors; and (2) the present value (discounted at a rate of 10% per annum compounded monthly) of the obligations of the lessee for rental payments during the shorter of the term of the related lease or the period through the first date on which STBV or the applicable Subsidiary may terminate the lease.
“Bankruptcy Law” means (i) Title 11, United States Code or any similar U.S. federal or state law for the relief of debtors or the administration or liquidation of debtors’ estates for the benefit of their creditors, (ii) the Dutch Bankruptcy Law or any similar Dutch federal or state law for the relief of debtors or the administration or liquidation of debtors’ estates for the benefit of their creditors and (iii) any other similar federal or local law for the relief of debtors or the administration or liquidation of debtors’ estates for the benefit of their creditors in any other applicable jurisdiction, now or hereinafter in effect.
“Beneficial Owner” or “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” will 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,” “Beneficially Owned” and “Beneficial Ownership” 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 having only one general partner, the board of directors of the general partner of the partnership;
(3) with respect to a limited liability company, the conseil de gérance, the conseil d’administration, the managing member or members or any controlling committee of managing members or other governing body thereof; and
(4) with respect to any other Person, the board or committee of such Person serving a similar function.
“Business Day” means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York are authorized or required by law to close.
“Capital Lease” 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 such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP (except for temporary treatment of construction related expenditures under ASC 840-40-15-5, which will ultimately be treated as operating leases upon a sale lease-back transaction).
“Capital Stock” means:
(1) in the case of a corporation, capital stock, shares or share capital;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock;
(3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
(4) 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.
“Cash Equivalents” means any of the following:
(1) readily marketable obligations issued or directly and fully guaranteed or insured by the United States, any state, commonwealth or territory
of the United States or any agency or instrumentality thereof, having (i) one of the three highest ratings from either Moody’s or S&P and (ii) maturities of not more than two years from the date of acquisition thereof; provided that the full faith and credit of the United States is pledged in support thereof;
(2) time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) is a lender under the Credit Agreement or (ii)(A) is organized under the laws of the United States, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof, the District of Columbia or the Commonwealth of Puerto Rico and is a member of the Federal Reserve System and (B) has combined capital and surplus of at least $250,000,000 (any such bank in the foregoing clauses (i) or (ii) being an “Approved Domestic Bank”), in each case with maturities of not more than one year from the date of acquisition thereof;
(3) commercial paper and variable or fixed rate notes issued by an Approved Domestic Bank (or by the parent company thereof) or any variable rate note issued by, or guaranteed by a domestic corporation rated “A-2” (or the equivalent thereof) or better by S&P or “P-2” (or the equivalent thereof) or better by Moody’s, in each case with maturities of not more than one year from the date of acquisition thereof;
(4) repurchase agreements entered into by any Person with a bank or trust company or recognized securities dealer (including any lender under the Credit Agreement), in each case, having capital and surplus in excess of $250,000,000 for direct obligations issued by or fully guaranteed or insured by the government or any agency or instrumentality of the United States;
(5) investments, classified in accordance with GAAP as current assets of STBV or any of its Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions having capital of at least $250,000,000 and the portfolios of which are limited such that 95% of such investments are of the character, quality and maturity described in clauses (1), (2), (3), or (4) of this definition;
(6) solely with respect to STBV and any Foreign Subsidiary, non-U.S. Dollar denominated (i) certificates of deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Person maintains its chief executive office and principal place of business, provided such country is a member of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least “A-2” or the equivalent thereof or from Moody’s is at least “P-2” or the equivalent thereof (any such bank being an “Approved Foreign Bank”) and maturing within one year of the date of acquisition and (ii) equivalents of demand deposit accounts which are maintained with an Approved Foreign Bank; and
(7) readily marketable obligations issued or directly and fully guaranteed or insured by the government or any agency or instrumentality of the United Kingdom, the Netherlands or any member nation of the European Union whose legal tender is the euro and which are denominated in euro or any other foreign currency comparable in credit quality and tenor to those referred to above and customarily used by corporations for cash management purposes in any
jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Subsidiary organized in such jurisdiction, having (i) one of the three highest ratings from either Moody’s or S&P and (ii) maturities of not more than one year from the date of acquisition thereof; provided that the full faith and credit of the United Kingdom, the Netherlands or any such member nation of the European Union is pledged in support thereof.
“Change of Control” means the occurrence of any of the following:
(1) the sale, lease, transfer or other conveyance, in one or a series of related transactions, of all or substantially all of the assets of STBV and its Subsidiaries, taken as a whole, to any Person; or
(2) STBV or the Issuer, as applicable, becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Issuer or STBV or any entity of which the Issuer or STBV is a Subsidiary; provided that so long as STBV or the Issuer, as applicable, is a Subsidiary of Parent, no Person or group shall be deemed to be or become a beneficial owner, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of STBV or the Issuer or any entity of which the Issuer or STBV is a Subsidiary, as applicable, unless such Person or group shall be or become, directly or indirectly, a beneficial owner of more than 50% of the total voting power of the Voting Stock of Parent.
“Clearstream” means Clearstream Banking, S.A. and any successor thereto.
“Code” means the United States Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to the Code are to the Code, as in effect on the Issue Date, and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.
“Commission” means the U.S. Securities and Exchange Commission.
“Consolidated Depreciation and Amortization Expense” means, with respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees, and other non-cash charges (excluding any non-cash item that represents an accrual or reserve for a cash expenditure for a future period) of such Person and its Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.
“Consolidated Interest Expense” means, with respect to any Person for any period, the sum, without duplication, of: (a) consolidated interest expense of such Person and its Subsidiaries for such period (including amortization of original issue discount, non-cash interest payments (other than imputed interest as a result of purchase accounting), commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing, the interest component of Capital Leases, net payments (if any) pursuant to
interest rate Hedging Obligations (any net receipts pursuant to such interest rate Hedging Obligations shall be included as a reduction to Consolidated Interest Expense), but excluding amortization of deferred financing fees or expensing of any bridge or other financing fees, and any loss on the early extinguishment of Indebtedness, in each case, relating to the Specified Financings) and (b) consolidated capitalized interest of such Person and its Subsidiaries for such period, whether paid or accrued and less (c) interest income actually received or receivable in cash for such period; provided, however, that Securitization Fees shall be deemed not to constitute Consolidated Interest Expense.
“Consolidated Net Income” means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided, however, that
(1) any net after-tax extraordinary, unusual or nonrecurring gains or losses (including, without limitation, severance, relocation, signing bonus, transition and other restructuring costs and litigation settlements or losses) shall be excluded;
(2) the Net Income for such period shall not include the cumulative effect of a change in accounting principle(s) during such period;
(3) any net after-tax gains or losses attributable to asset dispositions other than in the ordinary course of business (as determined in good faith by the Board of Directors of STBV) and any gain (or loss) realized upon the sale or other disposition of any Capital Stock of any Person shall be excluded;
(4) the Net Income for such period of any Person that is not a Subsidiary of such Person, or that is accounted for by the equity method of accounting, shall be excluded; provided that, to the extent not already included, Consolidated Net Income of such Person shall be (A) increased by the amount of dividends or other distributions that are actually paid in cash (or to the extent converted into cash) to the referent Person or a Subsidiary thereof in respect of such period and (B) decreased by the amount of any equity of STBV in a net loss of any such Person for such period to the extent STBV has funded such net loss;
(5) [reserved];
(6) non-cash compensation charges, including any such charges arising from stock options, restricted stock grants or other equity-incentive programs shall be excluded;
(7) any net after-tax gains or losses (less all fees and expenses or charges relating thereto) attributable to the early extinguishment or conversion of Indebtedness or Hedging Obligations shall be excluded;
(8) unrealized gains and losses from Hedging Obligations or “embedded derivatives” that require the same accounting treatment as Hedging Obligations shall be excluded;
(9) the effect of any non-cash items resulting from any amortization, write-up, write-down, write-off or impairment of assets (including intangible assets, goodwill and deferred financing costs but excluding inventory) in connection with any future acquisition, merger, consolidation or similar transaction or any other non-cash impairment charges incurred subsequent to the
Issue Date resulting from the application of SFAS Nos. 142 and 144 (excluding any such non-cash item to the extent that it represents an accrual of or reserve for cash expenditures in any future period except to the extent such item is subsequently reversed) shall be excluded;
(10) any purchase accounting adjustments (including the impact of writing up inventory or deferred revenue at fair value), amortization, impairments, write-offs, or non-cash charges with respect to purchase accounting with respect to any acquisition, merger, consolidation, disposition or similar transaction, shall be excluded;
(11) any reasonable expenses or charges incurred in connection with any Equity Offering, investment, acquisition, recapitalization or Indebtedness permitted to be incurred under this Indenture (in each case whether or not consummated) or the offering of the Notes, shall be excluded;
(12) the amount of any restructuring charges or reserves (which, for the avoidance of doubt, shall include retention, severance, systems establishment cost, excess pension charges, contract termination costs, including future lease commitments, and costs to consolidate facilities and relocate employees), shall be excluded; and
(13) any gains or losses relating to foreign currency transactions, including those relating to mark-to-market of Indebtedness denominated in foreign currencies resulting from the application of GAAP, including pursuant to FAS No. 52, shall be excluded.
To the extent not already included in Consolidated Net Income of such Person and its Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include the amount of proceeds received from business interruption insurance and reimbursements of any expenses or charges that are covered by indemnification or other reimbursement provisions in connection with any sale, conveyance, transfer or disposition of assets permitted under this Indenture.
“Contingent Obligations” means, with respect to any Person, any obligation of such Person Guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, or (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.
“Corporate Trust Office of the Trustee” will be the address of the Trustee specified in Section 12.02 hereof or such other address as to which the Trustee may give notice to the Issuer.
“Credit Agreement” means that certain credit agreement, dated as of May 12, 2011 (as amended from time to time prior to the Issue Date, including by that certain amendment, dated as of September 20, 2019, among STBV, the Issuer, certain other subsidiaries of STBV and the other parties thereto), among the Issuer, the “Parent” (as defined therein),
Morgan Stanley Senior Funding, Inc., as Administrative Agent, and the financial institutions from time to time party thereto, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, in each of the foregoing cases as amended, restated, supplemented, modified, renewed, refunded, replaced (whether at maturity or thereafter) or refinanced from time to time in one or more agreements or indentures (in each case with the same or new lenders or institutional investors), including any agreement adding or changing the borrower or guarantor or extending the maturity thereof or otherwise restructuring all or any portion of the Indebtedness thereunder or increasing the amount loaned or issued thereunder or altering the maturity thereof.
“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.
“Definitive Note” means a certificated non-Global Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Increases and Decreases in the Global Note” attached thereto.
“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.01(d) hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture, including DTC, Euroclear and/or Clearstream.
“Derivative Instrument” with respect to a Person, means any contract, instrument or other right to receive payment or delivery of cash or other assets to which such Person, or any Affiliate of such Person that is acting in concert with such Person in connection with such Person’s investment in the Notes (other than a Regulated Bank or Screened Affiliate), is a party (whether or not requiring further performance by such Person), the value and/or cashflows of which (or any material portion thereof) are materially affected by the value and/or performance of the Notes and/or the creditworthiness of the Parent, the Issuer and/or any one or more of the Guarantors (the “Performance References”).
“Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person which, by its terms (or by the terms of any security into which it is convertible or for which it is putable or exchangeable), or upon the happening of any event, matures or is mandatorily redeemable (other than as a result of a change of control or asset sale), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than as a result of a change of control or asset sale), in whole or in part, in each case prior to the date that is 91 days after the earlier of the final maturity date of the Notes or the date the Notes are no longer outstanding; provided, however, that if such Capital Stock is issued to any plan for the benefit of employees of STBV or any of its Subsidiaries or transferred by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by STBV or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
“DTC” means The Depository Trust Company.
“EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication,
(1) the provision for taxes based on income or profits, plus franchise or similar taxes, of such Person for such period deducted in computing Consolidated Net Income, plus
(2) Consolidated Interest Expense of such Person for such period to the extent the same was deducted in calculating such Consolidated Net Income, plus
(3) Consolidated Depreciation and Amortization Expense of such Person for such period to the extent such depreciation and amortization were deducted in computing Consolidated Net Income, plus
(4) any other non-cash charges, expenses or losses (including any impairment charges and the impact of purchase accounting, including, but not limited to, the amortization of inventory step-up) reducing Consolidated Net Income for such period (excluding any such charge that represents an accrual or reserve for a cash expenditure for a future period), plus
(5) any net gain or loss resulting from Hedging Obligations relating to currency exchange risk, plus
(6) the amount of any expense for minority interests consisting of Subsidiary income attributable to minority equity interests of third parties in any Guarantor deducted (and not added back) in such period in calculating Consolidated Net Income, plus
(7) Securitization Fees to the extent deducted in calculating Consolidated Net Income for such period, plus
(8) any net after-tax income or loss from discontinued operations and any net after-tax gains or losses on disposal of discontinued operations, less
(9) non-cash items increasing Consolidated Net Income of such Person for such period (excluding any items which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges made in any prior period).
If acquisitions, dispositions, mergers or consolidations (as determined in accordance with GAAP) have been made by STBV or any Subsidiary of STBV during the Measurement Period or subsequent to such Measurement Period and on or prior to or simultaneously with the date on which EBITDA is calculated (the “Calculation Date”), then EBITDA shall be calculated on a pro forma basis assuming that all such acquisitions, dispositions, mergers or consolidations had occurred on the first day of such Measurement Period.
For purposes of this definition, whenever pro forma effect is to be given to an acquisition, disposition, merger or consolidation and the amount of income or earnings relating thereto, the pro forma calculations shall be determined in good faith by a responsible financial or accounting Officer of STBV and shall comply with the requirements of Rule 11-02 of Regulation S-X promulgated by the Commission, except that such pro forma calculations may include operating expense reductions for such period resulting from the transaction which is being given pro forma effect that (A) have been realized or (B) for which the steps necessary for realization
have been taken (or are taken concurrently with such transaction) or (C) for which the steps necessary for realization are reasonably expected to be taken within the twenty-four month period following such transaction and, in each case, including, but not limited to, (a) reduction in personnel expenses, (b) reduction of costs related to administrative functions, (c) reduction of costs related to leased or owned properties and (d) reductions from the consolidation of operations and streamlining of corporate overhead; provided that, in each case, such adjustments are set forth in a certificate signed by a responsible financial or accounting Officer of STBV which states (i) the amount of such adjustment or adjustments and (ii) in the case of items (B) or (C) above, that such adjustment or adjustments are based on the reasonable good faith beliefs of the Officer executing such certificate at the time of such execution.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“Equity Offering” means any public or private sale of common stock or Preferred Stock of the Issuer or any of its direct or indirect parent companies (excluding Disqualified Stock), other than (i) public offerings with respect to common stock of the Issuer or of any of its direct or indirect parent companies registered on Form S-4 or Form S-8 or (ii) an issuance to any Subsidiary of STBV.
“Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system, and any successor thereto.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Foreign Subsidiary” means, with respect to any Person, any Subsidiary of such Person that is not organized or existing under the laws of the United States, any state thereof or the District of Columbia.
“GAAP” means generally accepted accounting principles in the United States which are in effect on the Issue Date; provided, however, that leases shall continue to be classified and accounted for on a basis consistent with that reflected in the financial statements of STBV for the fiscal year ended December 31, 2018 for purposes of all covenant compliance determinations and all other pertinent determinations and purposes under this Indenture, notwithstanding any change in GAAP relating thereto, including with respect to ASC 842. Notwithstanding the foregoing any reports or financial information required to be delivered pursuant to Section 4.03 shall be prepared in accordance with GAAP as in effect on the date thereof. At any time after the adoption of IFRS by STBV for its financial statements and reports for all financial reporting purposes, STBV may elect to apply IFRS for all purposes of this Indenture, in lieu of GAAP, and, upon any such election, references herein to GAAP shall be construed to mean IFRS as in effect from time to time; provided that (1) any such election once made shall be irrevocable and shall only be made once, except as may be necessary to comply with applicable law, rule or regulation, (2) all financial statements and reports required to be provided after such election pursuant to this Indenture shall be prepared on the basis of IFRS and (3) from and after such election, all ratios, computations and other determinations (A) based on GAAP contained in this Indenture shall be computed in conformity with IFRS and (B) in this Indenture that require the application of GAAP for periods that include fiscal quarters ended prior to STBV’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP. STBV shall give notice of any election to the Trustee and the Holders of Notes within 15 days of such election. For the avoidance of doubt, solely making an election (without any other action) referred to in this definition will not be treated as an incurrence of
Indebtedness. For purposes of this description, the term “consolidated” with respect to any Person means such Person consolidated with its Subsidiaries.
“Global Note Legend” means the legend set forth in Section 2.06(g)(ii) hereof, which is required to be placed on all Global Notes issued under this Indenture.
“Global Notes” means the 144A Global Note and the Regulation S Global Note.
“Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness or other obligations. When used as a verb, “Guarantee” shall have a corresponding meaning.
“Guarantor” means any Person that provides a Note Guarantee, either on the Issue Date or after the Issue Date in accordance with the terms of this Indenture; provided that upon the release and discharge of such Person from its Note Guarantee in accordance with this Indenture, such Person shall cease to be a Guarantor. On the Issue Date, the Guarantors will be STBV and each Subsidiary of STBV (other than the Issuer) that is a guarantor under the Credit Agreement.
“Hedging Obligations” means, with respect to any Person, the obligations of such Person under:
(1) currency exchange, interest rate or commodity swap agreements, currency exchange, interest rate or commodity cap agreements and currency exchange, interest rate or commodity collar agreements; and
(2) other agreements or arrangements designed to manage, hedge or protect such Person with respect to fluctuations in currency exchange, interest rates or commodity prices.
“Holder” means a Person in whose name a Note is registered in the register maintained by the Registrar.
“IFRS” means the International Financial Reporting Standards as issued by the International Accounting Standards Board.
“Indebtedness” means, with respect to any Person,
(a) any indebtedness (including principal and premium) of such Person, whether or not contingent:
(i) in respect of borrowed money,
(ii) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or, without duplication, reimbursement agreements in respect thereof),
(iii) representing the deferred and unpaid balance of the purchase price of any property (including Capital Leases), except (a) any such balance that constitutes a trade payable or similar obligation to a trade creditor in each case accrued in the ordinary course of business and
(b) any earn-out obligations, until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP, or
(iv) representing any interest rate Hedging Obligations,
if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon the balance sheet (excluding the notes thereto) of such Person prepared in accordance with GAAP;
(b) Disqualified Stock of such Person;
(c) to the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on the Indebtedness of another Person (other than by endorsement of negotiable instruments for collection in the ordinary course of business); and
(d) to the extent not otherwise included, Indebtedness of another Person secured by a Lien on any asset owned by such Person (whether or not such Indebtedness is assumed by such Person);
provided, however, that notwithstanding the foregoing, Indebtedness shall be deemed not to include (a) Contingent Obligations incurred in the normal course of business and not in respect of borrowed money, (b) obligations under or in respect of Securitization Financings, or (c) items that would appear as a liability on a balance sheet prepared in accordance with GAAP as a result of the application of EITF 97-10, “The Effect of Lessee Involvement in Asset Construction.”
“Indenture” means this Indenture, as amended or supplemented from time to time.
“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.
“Initial Notes” has the meaning assigned to it in the preamble to this Indenture.
“Institutional Accredited Investor” means an institution that is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not also QIBs.
“Investment Grade” means (1) BBB – (with a stable outlook) or above, in the case of S&P (or its equivalent under any successor Rating Categories of S&P) and Baa3 (with a stable outlook) or above, in the case of Moody’s (or its equivalent under any successor Rating Categories of Moody’s), or (2) the equivalent to the foregoing in respect of the Rating Categories of any other Rating Agencies.
“Issue Date” means August 17, 2020.
“Issuer” means Sensata Technologies, Inc. a Delaware corporation.
“Joint Venture” means, with respect to any Person, any partnership, corporation or other entity in which up to and including 50% of the Equity Interests is owned, directly or indirectly, by such Person or one or more of its Subsidiaries. A Joint Venture shall not be treated as a Subsidiary.
“Legended Regulation S Global Note” means a Global Note in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will initially be issued in a denomination equal to the outstanding principal amount at maturity of the Notes initially sold in reliance on Rule 903 of Regulation S.
“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, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to constitute a Lien.
“Long Derivative Instrument” means a Derivative Instrument (i) the value of which generally increases, and/or the payment or delivery obligations under which generally decrease, with positive changes to the Performance References and/or (ii) the value of which generally decreases, and/or the payment or delivery obligations under which generally increase, with negative changes to the Performance References.
“Measurement Period” means, at any date of determination, the most recently completed four fiscal quarters of STBV or Parent for which financial statements have been filed with the Commission, or in the event that, at any date of determination, neither STBV nor Parent is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the most recently completed four fiscal quarters of STBV for which internal financial statements are available.
“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
“Net Income” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends or accretion of any Preferred Stock.
“Net Short” means, with respect to a Holder or beneficial owner of the Notes, as of a date of determination, that either (i) the value of its Short Derivative Instruments (if any) exceeds the sum of the (x) the value of its Notes plus (y) the value of its Long Derivative Instruments (if any) as of such date of determination or (ii) it is reasonably expected that the situation described in the foregoing clause (i) would have been the case were a “failure to pay” or “bankruptcy credit event” (each as defined in the 2014 International Swaps and Derivatives Association, Inc. Credit Derivatives Definitions) to have occurred with respect to the Parent, the Issuer or any Guarantor immediately prior to such date of determination.
“Non-U.S. Person” means a Person who is not a U.S. Person.
“Note Guarantee” means any Guarantee of the obligations of the Issuer under this Indenture and the Notes issued hereunder by a Guarantor in accordance with the provisions of this Indenture.
“Notes” has the meaning assigned to it in the preamble to this Indenture. The Initial Notes and any Additional Notes shall be treated as a single class for all purposes under this Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes.
“Offering Memorandum” means that certain final offering memorandum, dated August 3, 2020, relating to the offering and sale of the Notes.
“Officer” means the Chairman of the Board, the Chief Executive Officer, the President, Chief Operating Officer, the Chief Financial Officer, the Chief Accounting Officer, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary, director or managing director, or any equivalent of the foregoing, or any Person duly authorized to act for on behalf, of the Issuer or any Guarantor, as applicable.
“Officers’ Certificate” means a certificate signed on behalf of the Issuer or any Guarantor, as applicable, by two Officers of the Issuer or such Guarantor, as applicable, one of whom is the Chairman of the Board of Directors, the Chief Executive Officer, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, the Chief Accounting Officer, or a director or managing director, or the equivalent, of the Issuer or such Guarantor, as applicable.
“Opinion of Counsel” means an opinion from legal counsel that meets the requirements of Section 12.05 hereof. The counsel may be an employee of or counsel to STBV or any Subsidiary of STBV.
“Parent” means Sensata Technologies Holding plc, a public limited liability company incorporated under the laws of England and Wales or any successor or other entity that serves as a parent company to STBV.
“Participant” means, with respect to the Depositary, a Person who has an account with the Depositary.
“Performance References” has the meaning set forth in the definition of the term “Derivative Instruments.”
“Permitted Bank Indebtedness” means any Indebtedness of STBV or any Subsidiary of STBV pursuant to one or more credit facilities with banks or other lenders providing for revolving credit loans or term loans or the issuance of letters of credit or bankers’ acceptances or the like and Guarantees of such Indebtedness by STBV or any Subsidiary of STBV; provided that the aggregate principal amount of such Permitted Bank Indebtedness at any time outstanding does not exceed $500,000,000.
“Permitted Business” means the business and any services, activities or businesses incidental, or directly related or similar to, any line of business engaged in by STBV and its Subsidiaries as of the Issue Date or any business activity that is a reasonable extension, development or expansion thereof or ancillary thereto.
“Permitted Liens” means:
(1) Liens securing Permitted Bank Indebtedness;
(2) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations;
(3) (a) Liens given to secure the payment of the purchase price or other acquisition, installation or construction costs incurred in connection with the acquisition (including acquisition through merger or consolidation) of any
Principal Property, including Capital Lease transactions in connection with any such acquisition and including any purchase money Liens, and (b) Liens existing on any Principal Property at the time of acquisition (including acquisition through merger or consolidation) thereof or at the time of acquisition by STBV or any Subsidiary of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (a), the Liens shall be given within 12 months after such acquisition and shall attach solely to the Principal Property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof;
(4) Liens in favor of STBV or a Subsidiary of STBV;
(5) Liens on any Principal Property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such Principal Property;
(6) Liens imposed by law, such as carriers’, warehousemen’s and mechanic’s Liens and other similar Liens arising in the ordinary course of business, Liens in connection with legal proceedings and Liens arising solely by virtue of any statutory or common law provision relating to banker’s Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution;
(7) Liens for taxes, assessments or other governmental charges not yet overdue for a period of more than 30 days or subject to penalties for non-payment or which are being contested in good faith by appropriate proceedings;
(8) Liens to secure the performance of bids, trade or commercial contracts, government contracts, purchase, construction, sales and servicing contracts (including utility contracts), leases, statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business and to secure letters of credit, Guarantees, bonds or other sureties given in connection with the foregoing or in connection with workers’ compensation, unemployment insurance or other types of social security or similar laws and regulations;
(9) licenses of intellectual property of STBV and its Subsidiaries granted in the ordinary course of business;
(10) Liens to secure Indebtedness incurred by Foreign Subsidiaries pursuant to Section 4.09(b)(10);
(11) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligation in respect of banker’s acceptances issued or created in the ordinary course of business for the account of such Person to facilitate the purchase, shipment, or storage of such inventory or other goods;
(12) Liens to secure Qualified Securitization Financings;
(13) Liens on stock, partnership or other equity interests in any Joint Venture of STBV or any of its Subsidiaries or in any Subsidiary of STBV that owns an equity interest in a Joint Venture to secure Indebtedness contributed or advanced solely to that Joint Venture; provided that, in each case, the Indebtedness secured by such Lien is not secured by a Lien on any other property of STBV or any Subsidiary of STBV;
(14) Liens and deposits securing netting services, business credit card programs, overdraft protection and other treasury, depository and cash management services or incurred in connection with any automated clearing-house transfers of funds or other fund transfer or payment processing services;
(15) Liens on, and consisting of, deposits made by the Issuer or STBV to discharge or defease the Notes and this Indenture, the 2023 Notes, the 2024 Notes, the 2025 Notes, the 2026 Notes, the 2030 Notes or any other Indebtedness;
(16) Liens on insurance policies and the proceeds thereof incurred in connection with the financing of insurance premiums;
(17) easements, rights of way, minor encroachments, protrusions, municipal and zoning and building ordinances and similar charges, encumbrances, title defects or other irregularities, governmental restrictions on the use of property or conduct of business, and Liens in favor of governmental authorities and public utilities, that do not materially interfere with the ordinary course of business of STBV and its Subsidiaries, taken as a whole; or
(18) any extension, renewal, substitution or replacement (or successive extensions, renewals, substitutions or replacements), in whole or in part, of any Lien referred to in the preceding clauses (1) through (17), inclusive.
“Person” means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization, limited liability company or government or other entity.
“Preferred Stock” means any Equity Interest with preferential rights of payment of dividends upon liquidation, dissolution or winding up.
“Principal Property” means, with respect to any Person, all of such Person’s interests in any kind of property or asset (including the capital stock in and other securities of any other Person), except such as the Board of Directors by resolution determines in good faith (taking into account, among other things, the materiality of such property to the business, financial condition and earnings of STBV and its Subsidiaries taken as a whole) not to be material to the business of STBV and its Subsidiaries, taken as a whole.
“Private Placement Legend” means the legend set forth in Section 2.06(g)(i) hereof to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Qualified Securitization Financing” means any Securitization Financing of a Securitization Subsidiary that meets the following conditions: (i) the Board of Directors of STBV shall have determined in good faith that such Qualified Securitization Financing (including financing terms, covenants, termination events and other provisions) is in the
aggregate economically fair and reasonable to STBV and the Securitization Subsidiary, (ii) all sales of Securitization Assets and related assets to the Securitization Subsidiary are made at fair market value (as determined in good faith by STBV) and (iii) the financing terms, covenants, termination events and other provisions thereof shall be market terms (as determined in good faith by STBV) and may include Standard Securitization Undertakings. The grant of a security interest in any Securitization Assets of STBV or any of its Subsidiaries (other than a Securitization Subsidiary) to secure Indebtedness under the Credit Agreement and any Credit Agreement Refinancing Indebtedness (as defined in the Credit Agreement) with respect thereto shall not be deemed a Qualified Securitization Financing.
“Rating Agency” means (1) S&P and Moody’s or (2) if S&P or Moody’s or both of them are not making ratings publicly available, a nationally recognized statistical rating organization within the meaning of Section 3(62) under the Exchange Act, as the case may be, selected by STBV in its discretion, which will be substituted for S&P or Moody’s or both, as the case may be.
“Rating Category” means (1) with respect to S&P, any of the following categories (any of which may include a “+” or a “-“: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor categories), (2) with respect to Moody’s, any of the following categories: Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories), and (3) the equivalent of any such categories of S&P or Moody’s used by another Rating Agency, if applicable.
“Regulated Bank” means a commercial bank with a consolidated combined capital surplus of at least $5,000,000,000 that is (i) a U.S. depository institution the deposits of which are insured by the Federal Deposit Insurance Corporation; (ii) a corporation organized under section 25A of the U.S. Federal Reserve Act of 1913; (iii) a branch, agency or commercial lending company of a foreign bank operating pursuant to approval by and under the supervision of the Board of Governors under 12 CFR part 211; (iv) a non-U.S. branch of a foreign bank managed and controlled by a U.S. branch referred to in clause (iii); or (v) any other U.S. or non U.S. depository institution or any branch, agency or similar office thereof supervised by a bank regulatory authority in any jurisdiction.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Global Note” means a Legended Regulation S Global Note or an Unlegended Regulation S Global Note, as appropriate.
“Responsible Officer,” when used with respect to the Trustee, means any officer within the Corporate Trust Department of the Trustee (or any successor group of the Trustee) 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, in each case having direct responsibility for the administration of this Indenture.
“Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.
“Restricted Global Note” means a Global Note bearing the Private Placement Legend.
“Restricted Period” means the 40-day distribution compliance period as defined in Regulation S, which period shall terminate (a) on September 26, 2020 with respect to the Initial Notes and (b) on such date as set forth in the applicable supplemental indenture entered into pursuant to Section 9.01(viii) with respect to any Additional Notes.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“Rule 903” means Rule 903 promulgated under the Securities Act.
“Rule 904” means Rule 904 promulgated under the Securities Act.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and any successor to its rating agency business.
“Screened Affiliate” means any Affiliate of a Holder (i) that makes investment decisions independently from such Holder and any other Affiliate of such Holder that is not a Screened Affiliate, (ii) that has in place customary information screens between it and such Holder and any other Affiliate of such Holder that is not a Screened Affiliate, and such screens prohibit the sharing of information with respect to the Parent or any of its Subsidiaries, (iii) whose investment policies are not directed by such Holder or any other Affiliate of such Holder that is acting in concert with such Holder in connection with its investment in the Notes, and (iv) whose investment decisions are not influenced by the investment decisions of such Holder or any other Affiliate of such Holder that is acting in concert with such Holders in connection with its investment in the Notes.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Securitization Assets” means any accounts receivable or other revenue streams subject to a Qualified Securitization Financing.
“Securitization Fees” means reasonable distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Securitization Subsidiary in connection with any Qualified Securitization Financing.
“Securitization Financing” means any transaction or series of transactions that may be entered into by STBV or any of its Subsidiaries pursuant to which STBV or any of its Subsidiaries may sell, convey or otherwise transfer to (a) a Securitization Subsidiary (in the case of a transfer by STBV or any of its Subsidiaries) and (b) any other Person (in the case of a transfer by a Securitization Subsidiary), or may grant a security interest in, any Securitization Assets (whether now existing or arising in the future) of STBV or any of its Subsidiaries, and any assets related thereto including, without limitation, all collateral securing such Securitization Assets, all contracts and all guarantees or other obligations in respect of such Securitization Assets, proceeds of such Securitization Assets and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving Securitization Assets and any Hedging Obligations entered into by STBV or any such Subsidiary in connection with such Securitization Assets.
“Securitization Repurchase Obligation” means any obligation of a seller of Securitization Assets in a Qualified Securitization Financing to repurchase Securitization Assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including, without limitation, as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, off set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
“Securitization Subsidiary” means any Subsidiary of STBV (or another Person) formed for the purposes of engaging in one or more Qualified Securitization Financings and other activities reasonably related thereto.
“Senior Management” means the Chief Executive Officer or the Chief Financial Officer, or the equivalent of the foregoing, of STBV or Parent.
“Short Derivative Instrument” means a Derivative Instrument (i) the value of which generally decreases, and/or the payment or delivery obligations under which generally increase, with positive changes to the Performance References and/or (ii) the value of which generally increases, and/or the payment or delivery obligations under which generally decrease, with negative changes to the Performance References.
“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 (except, with respect to each test contained therein, substituting 20 percent instead of 10 percent as the applicable threshold).
“Specified Financings” means the entry into the Credit Agreement and the borrowings made thereunder, the 2023 Notes, the 2024 Notes, the 2025 Notes, the 2026 Notes and the 2030 Notes.
“STBV” means Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands or any successor or other entity that serves as a parent company to the Issuer.
“STFC” means Sensata Technologies Finance Company, LLC, a Delaware limited liability company and a Subsidiary of STBV on the Issue Date.
“STUK” means Sensata Technologies UK Financing Co. plc, a public limited company incorporated under the laws of England and Wales and a Subsidiary of STBV on the Issue Date.
“Standard Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by STBV or any Subsidiary of STBV which STBV has determined in good faith to be customary in a Securitization Financing, including, without limitation, those relating to the servicing of the assets of a Securitization Subsidiary, it being understood that any Securitization Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking.
“Stated Maturity,” when used with respect to any Note or any installment of principal thereof or interest thereon, means the date specified in such Note as the fixed date on which the principal of such Note or such installment of principal or interest is due and payable.
“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 that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and
(2) any partnership, joint venture, limited liability company or similar entity of which (x) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise and (y) such Person or any Wholly Owned Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
“TIA” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).
“Treasury Rate” means, as of the applicable redemption date, the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) which has become publicly available at least two Business Days prior to the date fixed for prepayment (or, if such Statistical Release is no longer published, any publicly available source for similar market data)) most nearly equal to the period from the redemption date to February 15, 2026; provided, however, that if the period from the redemption date to February 15, 2026 is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Treasury Rate will be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the period from the redemption date to February 15, 2026 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.
“Trustee” means The Bank of New York Mellon, a New York banking corporation, until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
“Unlegended Regulation S Global Note” means a Global Note in the form of Exhibit A hereto bearing the Global Note Legend, deposited with or on behalf of, and registered in the name of, the Depositary or its nominee and issued upon expiration of the Restricted Period.
“Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required to bear the Private Placement Legend.
“Unrestricted Global Note” means a Global Note that does not bear and is not required to bear the Private Placement Legend.
“U.S. Government Securities” means securities that are
(a) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged; or
(b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of the issuers thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government Securities or a specific payment of
principal of or interest on any such U.S. Government Securities held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Securities or the specific payment of principal of or interest on the U.S. Government Securities evidenced by such depository receipt.
“U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act.
“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time ordinarily entitled to vote in the election of the Board of Directors of such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness, at any date, the quotient obtained by dividing: (1) the sum of the products of the number of years from the date of determination to the date of each successive scheduled principal payment of such Indebtedness multiplied by the amount of such payment; by (2) the sum of all such payments.
“Wholly Owned Subsidiary” of any Person means a Subsidiary of such Person, 100% of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares and shares issued to foreign nationals under applicable law) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of such Person or by such Person and one or more Wholly Owned Subsidiaries of such Person.
Section 1.02 Other Definitions.
| | | | | |
| Term | Defined in Section |
| “Additional Amounts” | 4.01 |
| “Applicable Law” | 4.01 |
| “Authentication Order” | 2.02 |
| “Change of Control Offer” | 4.15 |
| “Change of Control Payment” | 4.15 |
| “Change of Control Payment Date” | 4.15 |
| “Change in Tax Law” | 3.07 |
| “Covenant Defeasance” | 8.03 |
| “Event of Default” | 6.01 |
| “First Par Call Date” | 3.07 |
| “Initial Default” | 6.01 |
| “Legal Defeasance” | 8.02 |
“Luxembourg Guarantor” | 10.02 |
| “Minimum Dollar Denomination” | 2.01 |
| “Notation of Guarantee” | 10.03 |
| “Paying Agent” | 2.03 |
| “Registrar” | 2.03 |
| “Relevant Taxing Jurisdiction” | 4.01 |
| “Reversion Date” | 4.19 |
| “Subsidiary Debt” | 4.09 |
| “Successor Company” | 5.01 |
| “Suspended Provisions” | 4.19 |
| “Suspension Date” | 4.19 |
| “Suspension Period” | 4.19 |
| “Taxes” | 4.01 |
Section 1.03 Incorporation by Reference of Certain Provisions and Defined Terms in the Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision 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 and the Note Guarantees; and
“obligor” on the indenture securities means the Issuer and the Guarantors, respectively, and any successor obligor upon the indenture securities, respectively.
All other terms used in this Indenture that are defined by the TIA, defined by the TIA by reference to another statute or defined by the Commission rule under the TIA have the meanings so assigned to them by such definitions.
This Indenture has not been qualified under the TIA and no provision of the TIA shall be deemed a part of this Indenture except as specifically set forth herein.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(i)a term has the meaning assigned to it;
(ii)an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(iii)“or” is not exclusive;
(iv)words in the singular include the plural, and words in the plural include the singular;
(v)“will” shall be interpreted to express a command;
(vi)provisions apply to successive events and transactions;
(vii)references to sections of or rules under the Securities Act will be deemed to include substitute, replacement of successor sections or rules adopted by the Commission from time to time; and
(viii)unless otherwise provided in this Indenture or in any Note, the words “execute,” “execution,” “signed” and “signature” and words of similar import used in or related to any document to be signed in connection with this Indenture, any Note or any of the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures and 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 in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest 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 and any other similar state laws based on the Uniform Electronic Transactions Act; provided that, notwithstanding anything herein to the contrary, the Trustee is not under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Trustee pursuant to procedures approved by the Trustee.
Article 2
THE NOTES
Section 2.01 Form and Dating.
(a)General. The Notes and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The Notes shall be in minimum denominations of $2,000 (the “Minimum Dollar Denomination”) and any integral multiple of $1,000 in excess thereof.
The terms and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and the Issuer, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
(b)Rule 144A Global Notes; Global Notes Generally. Notes offered and sold in reliance on Rule 144A shall be issued initially in the form of a 144A Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for the Depositary and registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated Participants in the Depositary, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided. Each Global Note will represent such of the outstanding Notes as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee or the custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.
(c)Regulation S Global Notes. Notes offered and sold in reliance on Regulation S shall be issued initially in the form of the Legended Regulation S Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for the Depositary, and registered in the name of the Depositary or the nominee of the Depositary for the accounts of the designated Participants in the Depositary, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided. Following the termination of the Restricted Period, beneficial interests in a Legended Regulation S Global Note shall be exchanged for beneficial interests in an Unlegended Regulation S Global Note pursuant to Section 2.06 and the Applicable Procedures. Simultaneously with the authentication of Unlegended Regulation S Global Notes, the Trustee shall cancel such Legended Regulation S Global Note. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee or the custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.
(d)Depositary. The Issuer has initially appointed DTC to act as Depositary with respect to the Global Notes.
(e)Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of
Euroclear” or the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream will be applicable to transfers of beneficial interests in the Regulation S Global Notes that are held by Euroclear or Clearstream, respectively, as Participants in DTC.
(f)None of the Trustee or any Agent shall have any responsibility or obligation to any beneficial owner of an interest in a Global Note, a member of, or a Participant or Indirect Participant in, the Depositary or other Person, with respect to the accuracy of the records of the Depositary or its nominee or of any Participant, Indirect Participant or member thereof, with respect to any ownership interest in the Global Notes or with respect to the delivery to any Participant, Indirect Participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the Applicable Procedures of the Depositary. The Trustee and each Agent may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, Participants, Indirect Participants and any beneficial owners.
Section 2.02 Execution and Authentication.
At least one Officer must sign the Notes for the Issuer by manual, facsimile, or electronic signature, which may be delivered by .pdf attachment to an email or by other electronic means.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note will nevertheless be valid.
A Note will not be valid until authenticated by the manual or electronic signature of the Trustee. The signature will be conclusive evidence that the Note has been authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Issuer signed by two Officers of the Issuer (an “Authentication Order”), authenticate Notes for original issue that may be validly issued under this Indenture, including any Additional Notes. The aggregate principal amount of Notes outstanding at any time may not exceed the aggregate principal amount of Notes authorized for issuance by the Issuer pursuant to one or more Authentication Orders, except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Issuer.
Section 2.03 Agents.
The Issuer will maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar will keep a register of the Notes and of their transfer and exchange. The Issuer may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Issuer may change any Registrar or
Paying Agent without notice to any Holder. The Issuer will notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Issuer fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. STBV or any of its Subsidiaries may act as Registrar or Paying Agent.
The Issuer may remove any Registrar or Paying Agent upon written notice to such Registrar or Paying Agent and to the Trustee; provided, however, that no such removal shall become effective until (i) if applicable, acceptance of an appointment by a successor as evidenced by an appropriate agreement entered into by the Issuer and such successor Registrar or Paying Agent, as the case may be, and delivered to the Trustee or (ii) notification to the Trustee that the Trustee shall serve as Registrar or Paying Agent until the appointment of a successor in accordance with clause (i) above. The Registrar or Paying Agent may resign at any time upon written notice to the Issuer and the Trustee; provided, however, that the Trustee may resign as Registrar or Paying Agent only if the Trustee also resigns as Trustee in accordance with Section 7.08.
The Issuer initially appoints the Trustee to act as the Registrar and Paying Agent with respect to the Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Issuer will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium or interest on the Notes, and will notify the Trustee in writing of any default by the Issuer in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by such Paying Agent. Upon payment over to the Trustee, the Paying Agent (if other than STBV or a Subsidiary) will have no further liability for the money. If STBV or a Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuer, the Trustee will serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee will preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Issuer will furnish or cause the Registrar to furnish to the Trustee at least seven Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes and the Issuer shall otherwise comply with TIA § 312(a).
Section 2.06 Transfer and Exchange.
(a)Transfer and Exchange of Global Notes. A Global Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the Issuer for Definitive Notes if:
(A) The Depositary (1) notifies the Issuer that it is unwilling or unable to continue as Depositary for the Global Notes or (2) has ceased to be a clearing
agency registered under the Exchange Act and the Issuer thereupon fails to appoint a successor Depositary within 120 Business Days;
(B) the Issuer, at its option, notifies the Trustee in writing that it elects to cause the issuance of such Definitive Notes in exchange for beneficial interests in the Global Notes; or
(C) there shall have occurred and be continuing a Default or an Event of Default with respect to the Notes.
Upon the occurrence of any of the preceding events in (A), (B) or (C) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a), however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (d).
(b)Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes will be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also will require compliance with either subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(i)Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend; provided, however, that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Legended Regulation S Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person. Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(i).
(ii)All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(i) above, the transferor of such beneficial interest must deliver to the Registrar either:
(A)both (1) and (2):
(1)a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an
amount equal to the beneficial interest to be transferred or exchanged; and
(2)instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or
(B)both (1) and (2):
(1)a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and
(2)instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (B)(1) above,
provided that in no event shall Definitive Notes be issued upon the transfer or exchange of beneficial interests in the Legended Regulation S Global Note prior to the expiration of the Restricted Period and the receipt by the Registrar of a certificate from the transferor stating that the transfer complies with Rule 903 or Rule 904 of the Securities Act.
Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Notes pursuant to Section 2.06(h) hereof.
(iii)Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.06(b)(ii) above and the Registrar receives the following:
(A)if the transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; and
(B)if the transferee will take delivery in the form of a beneficial interest in the Legended Regulation S Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof.
(iv)Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.06(b)(ii) above and the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Issuer so requests or if the Applicable Procedures so require, an opinion of counsel in form reasonably acceptable to the Issuer to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
If any such exchange or transfer is effected at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to this subparagraph (iv).
(v)Transfer and Exchange of Beneficial Interests in an Unrestricted Global Note for Beneficial Interests in a Restricted Global Note. Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.
(c)Transfer and Exchange of Beneficial Interests for Definitive Notes.
(i)Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation:
(A)if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;
(B)if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
(C)if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or
Rule 904, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;
(D)if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E)if such beneficial interest is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications, certificates and opinion of counsel required by item (3)(d) thereof, if applicable;
(F)if such beneficial interest is being transferred to STBV or any of its Subsidiaries, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G)if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuer shall execute and the Trustee shall authenticate upon receipt of an Authentication Order in accordance with Section 2.02 hereof and deliver to the Person designated in the instructions a Restricted Definitive Note in the appropriate principal amount. Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Restricted Definitive Notes to the Persons in whose names such Notes are so registered. Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.
(ii)Beneficial Interests in Legended Regulation S Global Note to Definitive Notes. Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a beneficial interest in the Legended Regulation S Global Note may not be exchanged for a Definitive Note or transferred to a Person who takes delivery thereof in the form of a Definitive Note prior to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar of a certificate from the transferor stating (x) that the transfer complies with Rule 903 or Rule 904 of the Securities Act; or (y) that the transfer is made pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.
(iii)Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may
transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Issuer so requests or if the Applicable Procedures so require, an opinion of counsel in form reasonably acceptable to the Issuer to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(iv)Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof, the Trustee will cause the aggregate principal amount of the Unrestricted Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuer will execute and the Trustee will authenticate upon receipt of an Authentication Order in accordance with Section 2.02 hereof and deliver to the Person designated in the instructions an Unrestricted Definitive Note in the appropriate principal amount. Any Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) will be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest requests through instructions to the Registrar from or through the Depositary and the Participant or Indirect Participant. The Trustee will deliver such Unrestricted Definitive Notes to the Persons in whose names such Notes are so registered. Any Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) will not bear the Private Placement Legend.
(d)Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i)Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:
(A)if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a
certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;
(B)if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
(C)if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;
(D)if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E)if such Restricted Definitive Note is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications, certificates and opinion of counsel required by item (3)(d) thereof, if applicable;
(F)if such Restricted Definitive Note is being transferred to STBV or any of its Subsidiaries, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G)if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee will cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global Note, and in the case of clause (C) above, the Regulation S Global Note.
(ii)Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Note proposes to exchange such Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Restricted Definitive Note proposes to transfer such Restricted Definitive Note to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Issuer so requests or if the Applicable Procedures so require, an opinion of counsel in form reasonably acceptable to the Issuer to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of this Section 2.06(d)(ii), the Trustee will cancel the Restricted Definitive Note and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.
(iii)Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Unrestricted Definitive Note for a beneficial interest in an Unrestricted Global Note or transfer such Unrestricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraphs (ii) or (iii) above at a time when an Unrestricted Global Note has not yet been issued, the Issuer will issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of the Unrestricted Definitive Note so transferred.
(e)Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Issuer duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder must provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).
(i)Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of a Person or Persons who takes delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:
(A)if the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;
(B)if the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and
(C)if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and opinion of counsel required by item (3) thereof, if applicable.
(ii)Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Note proposes to exchange such Restricted Definitive Note for an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Note proposes to transfer such Restricted Definitive Note to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Issuer so requests, an opinion of counsel in form reasonably acceptable to the Issuer to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(iii)Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of an Unrestricted Definitive Note may transfer such Unrestricted Definitive Note to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Note pursuant to the instructions from the Holder thereof.
(f)[Intentionally Omitted]
(g)Legends. The following legends will appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.
(i)Private Placement Legend.
(A)Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:
“THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN “INSTITUTIONAL ACCREDITED INVESTOR”), (2) AGREES THAT IT WILL NOT, WITHIN [IN THE CASE OF RULE 144A NOTES: ONE YEAR][IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO SENSATA TECHNOLOGIES B.V. OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 903 OR RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL, IF SENSATA TECHNOLOGIES, INC. SHALL SO REQUEST), (F) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER IS ANNEXED TO THE INDENTURE AND CAN BE OBTAINED FROM THE TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES OF LESS THAN $100,000 AN OPINION OF COUNSEL ACCEPTABLE TO SENSATA TECHNOLOGIES, INC. THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN [IN THE CASE OF RULE 144A NOTES: ONE YEAR][IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE), THE HOLDER MUST DELIVER THE CERTIFICATE OF TRANSFER RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND SENSATA TECHNOLOGIES, INC. SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS SENSATA TECHNOLOGIES, INC. MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.”
(B)Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii) or (e)(iii) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) will not bear the Private Placement Legend.
(ii)Global Note Legend.
Each Global Note will bear a legend in substantially the following form:
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(A) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE RIGHTS ATTACHING TO THIS GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).”
(h)Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note or a Definitive Note, the principal amount of Notes represented by such Global Note will be reduced accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note will be increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
(i)General Provisions Relating to Transfers and Exchanges.
(i)To permit registrations of transfers and exchanges, the Issuer will execute and the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof.
(ii)No service charge will be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.07, 2.10, 3.06, 4.15 and 9.05 hereof).
(iii)The Registrar will not be required to register the transfer of or exchange of any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
(iv)All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes will be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(v)Neither the Registrar nor the Issuer will be required:
(A)to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day the Issuer gives notice of redemption of the Notes under Section 3.03 hereof or makes a Change of Control Offer pursuant to Section 4.15 hereof and ending at the close of business on the day notice is given or the Change of Control Offer is made, as applicable;
(B)to register the transfer of or to exchange any Note selected for redemption in whole or in part or subject to purchase in a Change of Control Offer, except the unredeemed or unpurchased portion of any Note being redeemed or purchased in part; or
(C)in the case of a redemption or a Change of Control Payment Date occurring after a record date but on or before the corresponding interest payment date, register the transfer or exchange of any Note on or after the record date and before the date of redemption or Change of Control Payment Date, as applicable.
(vi)Subject to the rights of Holders as of the relevant record date to receive interest on the corresponding interest payment date and Section 2.12, prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuer may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Issuer shall be affected by notice to the contrary.
(vii)The Trustee will authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02 hereof.
(viii)Neither the Trustee nor any Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any tax or securities laws with respect to any restrictions on transfer imposed under this Indenture or under applicable law (including any transfers between or among Participants, Indirect Participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Issuer and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Issuer will issue and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Issuer, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuer to protect the Issuer, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuer and the Trustee may charge for their expenses in replacing a Note.
Every replacement Note is an additional obligation of the Issuer and will be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the Trustee except (i) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (ii) Notes for the payment or redemption of which 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, segregated and held in trust by the Issuer (if the Issuer shall act as its own Paying Agent) for the Holders of such Notes; provided that, if such Notes are to be redeemed prior to the maturity thereof, written notice of such redemption has been duly given pursuant to this Indenture, or provision satisfactory to the Trustee shall have been made for giving such notice; and (iii) Notes in substitution for which other Notes shall have been authenticated and delivered, or which shall have been paid, pursuant to the terms of this Indenture (except with respect to any such Note as to which proof satisfactory to the Trustee is presented that such Note is held by a Person in whose hands such Note is a legal, valid and binding obligation of the Issuer). Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because STBV or an Affiliate of STBV holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee and the Registrar receive proof satisfactory to each of them that the replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay all principal, premium and accrued interest with respect to the outstanding Notes payable on that date and the Paying Agent is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture, then on and after that date such Notes will be deemed to be no longer outstanding and will cease to accrue interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in any direction, request, waiver or consent in the exercise of any discretion, power or authority (whether contained in this Indenture or vested by operation of law) which the Trustee is required, expressly or impliedly, to exercise in or by reference to the interests of the Holders or any of them, Notes owned by the Issuer or any Guarantor, or by an Affiliate of the Issuer or any Guarantor, will be considered as though not outstanding, except that for the purposes of determining whether the Trustee will be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee knows are so owned will be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the Issuer may prepare and the Trustee, upon receipt of an Authentication Order, will authenticate temporary Notes. Temporary Notes will be substantially in the form of certificated Notes but may have variations that the Issuer considers appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuer will prepare and the Trustee will authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the benefits of this Indenture.
Section 2.11 Cancellation.
The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent will forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and will dispose of such canceled Notes in its customary manner (subject to the record retention requirement of the Exchange Act). Certification of the destruction of all canceled Notes will be delivered to the Issuer. The Issuer may not issue new Notes to replace Notes that it has redeemed, purchased or paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Issuer defaults in a payment of interest on the Notes, it will pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Issuer will notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Issuer will fix or cause to be fixed each such special record date and payment date; provided that no such special record date may be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Issuer (or, upon the written request of the Issuer, the Trustee in the name and at the expense of the Issuer) will give or cause to be given to Holders in accordance with Section 12.02 a notice prepared by the Issuer that states the special record date, the related payment date and the amount of such interest to be paid.
Section 2.13 CUSIP Numbers and ISIN Numbers.
The Issuer in issuing the Notes may use “CUSIP” numbers and “ISINs” (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers and “ISINs” in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers, either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Trustee in writing of any change in the “CUSIP” numbers or “ISINs.”
Article 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Issuer elects to redeem Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at least five days prior to the date notice of redemption is to be delivered to the Holders of the Notes in accordance with Section 3.03 (unless a shorter time is acceptable to the Trustee), an Officers’ Certificate setting forth:
(i) the clause of this Indenture pursuant to which the redemption shall occur;
(ii) the redemption date;
(iii) the principal amount of Notes to be redeemed;
(iv) the redemption price;
(v) the applicable CUSIP numbers; and
(vi) a statement that the conditions precedent to such redemption have been satisfied.
Section 3.02 Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed at any time, Notes will be selected for redemption as follows:
(i) if the Notes are listed on any national securities exchange, Notes shall be selected in compliance with the requirements of the principal national securities exchange on which the Notes are listed; or
(ii) if the Notes are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem fair and appropriate,
in each case, subject to the Applicable Procedures of DTC as applicable.
In the event of partial redemption of Notes, (i) in the case of Definitive Notes, the particular Notes to be redeemed will be selected, unless otherwise provided herein, by the Trustee not less than 30 days nor more than 60 days prior to the redemption date from the outstanding Notes not previously called for redemption, and (ii) in the case of Global Notes, shall be selected in accordance with the Applicable Procedures of DTC.
The Trustee will promptly notify the Issuer in writing of any Definitive Notes selected for redemption and, in the case of any Definitive Note selected for partial redemption or purchase, the principal amount thereof to be redeemed. No Notes in principal amounts equal to or less than the Minimum Dollar Denomination can be redeemed in part.
Section 3.03 Notice of Optional Redemption.
(a)Except for redemption pursuant to Section 3.07(e), notices of optional redemption will be given at least 30 but not more than 60 days before the redemption date to each Holder of Notes to be redeemed in accordance with Section 12.02, except that redemption notices may be given more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture.
(b)If any Note is to be optionally redeemed, the notice of redemption that relates to that Note will state:
(i)the clause of this Indenture pursuant to which the redemption shall occur;
(ii)the redemption date;
(iii)the principal amount of Notes to be redeemed;
(iv)the redemption price;
(v)applicable CUSIP numbers;
(vi)a statement that the conditions precedent to such redemption have been satisfied.
(c)At the Issuer’s written request delivered at least 35 days prior to the redemption date unless the Trustee consents to a shorter period, the Trustee will give the notice of optional redemption in the Issuer’s name and at its expense; in such event, the Issuer shall provide the Trustee with the information required by this Section 3.03.
(d)If any optional redemption or notice is subject to satisfaction of one or more conditions precedent, the notice shall state that, in the Issuer’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied on or prior to one Business Day prior to the redemption date, or by the redemption date so delayed.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is given in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price and interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date unless the Issuer defaults in the payment of the redemption price or accrued interest or any Additional Amounts.
Section 3.05 Deposit of Redemption Price.
On or prior to 11:00 a.m., New York City time, on the Business Day immediately preceding the redemption date, the Issuer will deposit with the Trustee or with the Paying Agent, money sufficient to pay the redemption price of and accrued interest on all Notes to be redeemed on the redemption date. The Trustee or the Paying Agent will promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the redemption price of, and accrued interest on, all Notes to be redeemed following the redemption date.
If the Issuer complies with the provisions of the preceding paragraph, on and after the redemption date, interest will cease to accrue on the Notes or the portions of Notes called for redemption. If a 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 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 is not so paid upon surrender for redemption because of the failure of the Issuer to comply with the preceding paragraph, interest 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 4.01 hereof.
Section 3.06 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Issuer will issue and, upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the expense of the Issuer a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered.
Section 3.07 Optional Redemption.
(a)Except pursuant to Sections 3.07(b) through 3.07(e) and 4.15(f), the Notes will not be optionally redeemable by the Issuer; provided, however, the Issuer may acquire the Notes by means other than an optional redemption.
(b)At any time and from time to time prior to February 15, 2026, the Issuer may redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus the Applicable Premium, plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of Holders of record on the record date to receive interest due on the related interest payment date).
(c)At any time and from time to time on or after February 15, 2026, the Issuer may redeem the Notes, in whole or in part, at the redemption prices (expressed as a percentage of principal amount) set forth below, plus accrued and unpaid interest, if any, to, but excluding, the redemption date:
| | | | | |
| Period Beginning February 15, | Price |
2026 | 101.875% |
2027 | 100.938% |
2028 and thereafter | 100.000% |
(d)At any time and from time to time prior to August 15, 2023, the Issuer may redeem up to 40% of the principal amount of the outstanding Notes (including Additional Notes, if any) with the net cash proceeds of one or more Equity Offerings at a redemption price (expressed as a percentage of principal amount) of 103.750%, plus accrued and unpaid interest, if any, to, but excluding, the redemption date; provided that (i) at least 60% of the aggregate principal amount of Notes issued on the Issue Date and any Additional Notes originally issued under this Indenture after the Issue Date remains outstanding immediately after each such redemption, and (ii) notice of any such redemption is given to the Holders within 90 days of the closing of each such Equity Offering.
(e)The Issuer may, at its option, redeem the Notes, in whole but not in part, at any time upon not less than 15 days’ nor more than 30 days’ notice to the Holders (which notice shall be irrevocable and given in accordance with Section 3.03), at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the redemption date, premium, if any, and all Additional Amounts, if any, then due and which will become due on the date of redemption as a result of the redemption or otherwise, if the Issuer determines in good faith that the Issuer or any Guarantor is, or on the next date on which any amount would be payable in respect of the Notes, would be obligated to pay Additional Amounts in respect of the Notes pursuant to the terms and conditions thereof (but, in the case of a Guarantor, only if the payment giving rise to such requirement cannot be made by the Issuer or another Guarantor without the obligation to pay Additional Amounts), which the Issuer or such Guarantor, as the case may be, cannot avoid by the use of reasonable measures available to it (including, without limitation, making payment through a Paying Agent located in another jurisdiction), as a result of:
(1) any change in, or amendment to, the laws or treaties (or any regulations, official guidance or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction affecting taxation which becomes effective on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction that arises after the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under this Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder); or
(2) any change in the official application, administration, or interpretation of the laws, treaties, regulations, official guidance or rulings of any Relevant Taxing Jurisdiction (including a holding, judgment, or order by a court of competent jurisdiction), on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction that arises after the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under this Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder) (each of the foregoing clauses (1) and (2), a “Change in Tax Law”).
Notwithstanding the foregoing, the Issuer may not redeem the Notes under this provision if a Relevant Taxing Jurisdiction changes under this Indenture and the Issuer is obligated to pay Additional Amounts as a result of a Change in Tax Law of such Relevant Taxing Jurisdiction which was officially announced at the time the latter became a Relevant Taxing Jurisdiction.
In the case of a Guarantor that becomes a party to this Indenture after the Issue Date or a successor Person (including a surviving entity), the Change in Tax Law must become effective after the date that such entity (or another Person organized or resident in the same jurisdiction) first makes a payment on the Notes.
Notwithstanding the foregoing, no such notice of redemption will be given (a) earlier than 90 days prior to the earliest date on which the Issuer or any Guarantor, would be obliged to make such payment of Additional Amounts or withholding if a payment in respect of the Notes or the relevant Note Guarantee, as the case may be, were then due and (b) unless at the time such notice is given, the obligation to pay Additional Amounts remains in effect.
Prior to the giving of any notice of redemption pursuant to this Section 3.07(e), the Issuer will deliver to the Trustee:
(1) an Officers’ Certificate stating that the Issuer is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Issuer so to redeem have occurred (including that such obligation to pay such Additional Amounts cannot be avoided by the Issuer or any Guarantor or surviving entity taking reasonable measures available to it); and
(2) a written opinion of independent tax advisers of recognized standing qualified under the laws of the Relevant Taxing Jurisdiction to the effect that the Issuer or a Guarantor or surviving entity, as the case may be, is or would be obligated to pay such Additional Amounts as a result of a Change in Tax Law.
The foregoing provisions shall apply mutatis mutandis to any successor Person, after such successor Person becomes a party to this Indenture, with respect to a Change in Tax Law occurring after the time such successor Person becomes a party to this Indenture.
(f)Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.05 hereof.
Article 4
COVENANTS
Section 4.01 Payment of Notes.
(a)The Issuer will pay or cause to be paid the principal of, premium, if any, and interest on, the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest will be considered paid on the date due if the Paying Agent, if other than the Issuer or a Subsidiary thereof, holds as of 11:00 a.m. Eastern Time on the Business Day prior to the due date money deposited by the Issuer in immediately available funds and designated for and sufficient to pay all principal of, premium, if any, and interest then due and the Paying Agent is not prohibited from paying such money to the Holders on the due date pursuant to the terms of this Indenture.
The Issuer will pay interest on overdue principal at the rate specified therefor in the Notes, and it shall pay interest on overdue installments of interest at the same rate borne by the Notes to the extent lawful.
(b) All payments that the Issuer makes under or with respect to the Notes and that any Guarantor makes under or with respect to any Note Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other similar governmental charges (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of (i) any jurisdiction in which the Issuer or any Guarantor is incorporated, organized, engaged in business for tax purposes or otherwise resident for tax purposes or from or through which the Issuer or any Guarantor, as applicable, makes any payment on the Notes or any department, political subdivision or other governmental authority of or in such jurisdiction having the power to tax (each, a “Relevant Taxing Jurisdiction”), unless withholding or deduction is then required by law or by the interpretation or administration of law. If the Issuer or any Guarantor is required (as determined in the good faith discretion of the Issuer or Guarantor) to withhold or deduct any amount on account of Taxes imposed or levied by or on behalf of any jurisdiction (or any department, political subdivision or other governmental authority thereof or therein having the power to tax), the Issuer or Guarantor shall be entitled to make such deduction or withholding from any payment made under or with respect to the Notes, and, to the extent such Tax is imposed by a Relevant Taxing Jurisdiction, the Issuer or such Guarantor, as the case may be, shall pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by each Holder or beneficial owner of the Notes after such withholding or deduction (including any such deduction or withholding from such Additional Amounts) will be not less than the amount that would have been received by the Holder or beneficial owner if such Taxes had not been required to be withheld or deducted.
(ii)Neither the Issuer nor any Guarantor shall, however, pay Additional Amounts to a Holder or beneficial owner of Notes in respect or on account of:
(A)any Taxes that would not have been imposed or levied but for the existence of any present or former connection between the relevant Holder or beneficial owner (or between a fiduciary, settler, beneficiary, member or shareholder of, or possessor of a power over, the relevant Holder or beneficial owner, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) with such Relevant Taxing Jurisdiction (including, without limitation, as a result of being resident for Tax purposes, or being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction), other than the mere receipt or holding of Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes, this Indenture or any Note Guarantee;
(B)any Taxes that are imposed or withheld by reason of the failure of the Holder or Beneficial Owner, following the Issuer’s written request addressed to the Holder (and made at a time that would enable the Holder or beneficial owner acting reasonably to comply with that request) to comply with any certification, identification, tax clearance or similar requirements, whether required or imposed by statute, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or
withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(C)any estate, inheritance, gift, excise, sales, transfer, personal property or similar Taxes;
(D)any Tax which is payable other than by deduction or withholding from payments made under or with respect to the Notes or Note Guarantees;
(E)any Tax imposed on or with respect to any payment by the Issuer or a Guarantor to the Holder if such Holder is a fiduciary or partnership or person other than the sole beneficial owner of such payment to the extent that Taxes would not have been imposed on such payment had the beneficiary, partner or other beneficial owner directly held the Note;
(F)any Tax that is imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of the Notes for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the Beneficial Owner or Holder thereof would have been entitled to Additional Amounts had the Notes been presented for payment on any date during such 30-day period;
(G)any Taxes imposed pursuant to Sections 1471 to 1474 (inclusive) of the Code (or any amended or successor version of such sections that is substantially comparable), including any current or future Treasury regulations or other official interpretations or guidance thereunder or any agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, any intergovernmental agreements entered into in connection with the foregoing, and any rules or practices adopted pursuant to any such intergovernmental agreement, and any provisions of any treaty or convention among governmental authorities implementing such sections of the Code;
(H)any Taxes imposed by or on behalf of the United States or any department, political subdivision or other governmental authority thereof or therein having the power to tax; or
(I)any combination of the items above.
(iii)The Issuer and each Guarantor shall (A) make such Tax withholding or deduction as is required by applicable law to be made in respect of any payment by it under or with respect to the Notes and (B) remit the full amount so deducted or withheld to the relevant taxing authority in accordance with applicable law.
(iv)At least 30 calendar days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Issuer and any Guarantor determines that it shall be obligated to withhold or deduct Taxes from such payment for which it will be required to pay Additional Amounts (unless
such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it will be promptly thereafter), the Issuer shall deliver to the Trustee an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable and shall set forth such other information (other than the identities of Holders and Beneficial Owners) necessary to enable the Trustee or the Paying Agent, as the case may be, to pay such Additional Amounts to Holders on the relevant payment date.
(v)The Issuer or the relevant Guarantor shall furnish to the Trustee and each relevant Holder within a reasonable period of time certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor, as the case may be, of any Taxes imposed or levied by a Relevant Taxing Jurisdiction that were withheld or deducted from a payment made by the Issuer or such Guarantor, as the case may be, under or with respect to the Notes. If, notwithstanding the reasonable best efforts of the Issuer or such Guarantor to obtain such receipts, the same are not obtainable, then the Issuer or such Guarantor shall provide the Trustee and the relevant Holders with other evidence reasonably satisfactory to the Trustee and the relevant Holders of such payment by the Issuer or such Guarantor.
(vi)The Issuer and each Guarantor shall pay and indemnify the Holders and the Trustee (if applicable) for (A) any present or future stamp, issue, registration, court or documentary, excise or property taxes or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the execution, issue, delivery or registration of the Notes, any Note Guarantee or this Indenture or any other document or instrument referred to hereunder and any such taxes, charges, duties or similar levies imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes, such Note Guarantee or this Indenture or any such other document or instrument following the occurrence of any Event of Default, and (B) any stamp, court, or documentary taxes (or similar charges or levies) imposed with respect to the receipt of any payments with respect to the Notes or such Note Guarantee. Neither the Issuer nor any Guarantor shall, however, pay such amounts that are imposed on or result from a sale or other transfer or disposition by a Holder or Beneficial Owner (other than the initial resale of the Notes by the initial purchasers).
(vii)This Section 4.01(b) shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer or any Guarantor is organized, incorporated or otherwise resident for tax purposes and any political subdivision or taxing authority or agency thereof or therein or any jurisdiction from or through which such Person makes any payment on the Notes (or any Note Guarantee) or any political subdivision thereof or therein.
(c)In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to this Indenture in effect from time to time (“Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Issuer agrees (i) to provide to the Trustee and each Paying Agent sufficient information about the parties or transactions (including any modification to the terms of such transactions) so the Trustee and each Paying Agent can determine whether it has tax related obligations under Applicable Law, (ii) that the Trustee and each Paying Agent shall be entitled to make any withholding or deduction from payments to the
extent necessary to comply with Applicable Law for which the Trustee and each Paying Agent shall not have any liability, and (iii) to hold harmless the Trustee and each Paying Agent for any losses it may suffer due to the actions it takes to comply with Applicable Law. The terms of this Section 4.01(c) shall survive the termination, defeasance or discharge of this Indenture.
Section 4.02 Maintenance of Office or Agency.
The Issuer will maintain in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served (other than the type contemplated by Section 12.09). The Issuer 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 fails to maintain any such required office or agency or fails 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.
The Issuer may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission will in any manner relieve the Issuer of its obligation to maintain an office or agency in the Borough of Manhattan, the City of New York 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.
The Issuer hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Issuer in accordance with Section 2.03 hereof.
Section 4.03 Reports.
(a)STBV will furnish to the Trustee and the Holders of the Notes in the manner specified below:
(i)within 90 days after the end of each fiscal year ending December 31, an annual report of STBV containing substantially all the financial information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if STBV had been a reporting company under the Exchange Act, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” Section and a report on the annual financial statements by STBV’s independent registered public accounting firm; provided that such annual report will not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(ii)within 45 days after the end of each of the first three fiscal quarters of each fiscal year, quarterly reports of STBV containing substantially all the financial information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if STBV had been a reporting company under the Exchange Act, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” Section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(iii)within ten Business Days after the occurrence of each event that would have been required to be reported in a current report on Form 8-K under the Exchange Act if STBV had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required to be contained in a current report on Form 8-K under the Exchange Act pursuant to Sections 1, 2 (other than Item 2.02) and 4 and Items 5.01, 5.02 (other than any compensation-related information) and 5.03 of Form 8-K if STBV had been a reporting company under the Exchange Act; provided, however, that no such current report will be required to (i) be furnished if STBV determines in its good faith judgment that such event is not material to Holders or the business, assets, operations, financial positions or prospects of STBV and its Subsidiaries, taken as a whole, or if STBV determines in its good faith judgment that such disclosure would otherwise cause material competitive harm to the business, assets, operations, financial position or prospects of STBV and its Subsidiaries, taken as a whole; provided further that such non-disclosure shall be limited only to those specific provisions that would cause material competitive harm and not the occurrence of the event itself or (ii) contain financial statements or pro forma financial statements.
(b)None of the reports referenced in Section 4.03(a) will be required to comply with Section 302 or Section 404 of the Sarbanes-Oxley Act of 2002, or related Items 307 and 308 of Regulation S-K promulgated by the Commission, or Item 302 of Regulation S-K or Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or Item 601 of Regulation S-K (with respect to exhibits), in each case, as in effect on the Issue Date, and will not be required to contain the separate financial information for Guarantors contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the Commission or to provide financial statements in interactive data format using the eXtensible Business Reporting Language.
(c)To the extent not satisfied by Section 4.03(a), for so long as any Notes are outstanding and constitute “restricted securities” within the meaning of Rule 144 under the Securities Act, STBV will furnish to Holders and to securities analysts and prospective purchasers of the Notes in connection with any sale thereof, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this Section 4.03(c) and Section 4.03(a) may be satisfied by (i) delivering such information electronically to the Trustee and (ii) posting copies of such information on a website (which may be nonpublic and may be maintained by STBV or a third party) to which access will be given to Holders and prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of STBV and who acknowledge the confidentiality of the information.
(d)Notwithstanding Section 4.03(a) through (c), at all times that either STBV or Parent is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the reporting requirements of this Section 4.03 shall be satisfied through the filing with the Commission within the time periods specified in the Commission’s rules and regulations that are then applicable to STBV or Parent, as applicable, all the reports on Form 10-K, Form 10-Q and Form 8-K that either STBV or Parent, as applicable, is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the Commission.
(e)In the event that the reporting obligation of this Section 4.03 are satisfied through the reports of Parent in accordance with Section 4.03(d) and Parent or any other direct or indirect parent company of STBV holds any material assets other than cash, Cash Equivalents and the Capital Stock of STBV or any other direct or indirect parent of STBV (and performs the related incidental activities associated with such ownership), then the reports of Parent referenced in Section 4.03(d) shall be accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Parent and such other parent companies, on the one hand, and the information relating to STBV and its Subsidiaries on a stand-alone basis, on the other hand.
(f)Notwithstanding anything herein to the contrary, STBV will not be deemed to have failed to comply with any of its obligations hereunder for purposes of Section 6.01(a)(iii) until 90 days after the date any report hereunder is due.
(g)Delivery of the above reports to the Trustee is for informational purposes only and the Trustee’s receipt of such reports shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including compliance by the Issuer, any Guarantor or any Subsidiary with any of its covenants in this Indenture (as to which the Trustee is entitled to rely exclusively on an Officers’ Certificate) or any other agreement or document. The Trustee shall have no obligation to determine if and when STBV has satisfied its reporting obligations under this Section 4.03. STBV shall (i) provide the Trustee with prompt written notification at such time that STBV commences or ceases to satisfy its reporting obligation under Section 4.03 through the reports of STBV or Parent, as applicable, in accordance with Section 4.03(d) or (ii) provide the Trustee and the Holders the information set forth in Section 4.03(a).
Section 4.04 Compliance Certificate.
(a)STBV shall deliver to the Trustee within 120 days after the end of each fiscal year of STBV ending December 31, an Officers’ Certificate stating that in the course of the performance by the signers of their duties as Officers of STBV they would normally have knowledge of any Default and whether or not the signers know of any Default that occurred during such period. If they do, the certificate shall describe the Default, its status and what action STBV is taking or proposes to take with respect thereto. STBV also shall comply with Section 314(a)(4) of the TIA.
(b)So long as any of the Notes are outstanding, STBV will deliver to the Trustee, forthwith upon any Officer becoming aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event of Default and the remedial action STBV proposes to take in connection therewith.
Section 4.05 Corporate Existence.
Except as otherwise permitted by Article 5, the Issuer shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence in accordance with its organizational documents.
Section 4.06 [Intentionally Omitted].
Section 4.07 [Intentionally Omitted].
Section 4.08 Limitation on Sale and Lease-Back Transactions.
(a)STBV will not, and will not permit any of its Subsidiaries, directly or indirectly, to enter into any sale and lease-back transaction for the sale and leasing back of any Principal Property, whether now owned or hereafter acquired, unless:
(1) such transaction was entered into prior to or within 12 months after the Issue Date;
(2) such transaction was for the sale and leasing back to STBV or a Subsidiary of any Principal Property;
(3) such transaction involves a lease of a Principal Property executed by the time of or within 12 months after the latest of the acquisition, the completion of construction or improvement, or the commencement of commercial operation, of such Principal Property;
(4) such transaction involves a lease for not more than three years (or which may be terminated by STBV or the applicable Subsidiary within a period of not more than three years);
(5) STBV or the applicable Subsidiary would be entitled to incur Indebtedness secured by a mortgage on the property to be leased in an amount equal to Attributable Liens with respect to such sale and lease-back transaction without equally and ratably securing the Notes pursuant to Section 4.12(a); or
(6) STBV or the applicable Subsidiary applies an amount equal to the net proceeds from the sale of the Principal Property to the purchase of another Principal Property or to the retirement or other repayment or prepayment of long-term Indebtedness within 365 calendar days before or after the effective date of any such sale and lease-back transaction; provided that in lieu of applying such amount to such retirement, repayment or prepayment, STBV or any Subsidiary may deliver Notes to the Trustee for cancellation, such Notes to be credited at the cost thereof to STBV or such Subsidiary.
(b)Notwithstanding Section 4.08(a), STBV and its Subsidiaries may enter into any sale and lease-back transaction which would otherwise be subject to the foregoing restrictions if after giving effect thereto and at the time of determination, Aggregate Debt does not exceed an amount equal to the greater of (a) $3,250,000,000, and (b) 3.25 times EBITDA of STBV for the Measurement Period immediately preceding the closing date of the sale and lease-back transaction.
Section 4.09 Limitation on Subsidiary Debt.
(a)STBV will not permit any of its Subsidiaries (other than the Issuer) to create, assume, incur, Guarantee or otherwise become liable for or suffer to exist any Indebtedness (any Indebtedness of a Subsidiary of STBV that is not a Guarantor (other than the Issuer), “Subsidiary Debt”), without Guaranteeing the payment of the principal of, premium, if any, and interest on the Notes on an unsecured unsubordinated basis.
(b)Section 4.09(a) shall not apply to, and there shall be excluded from Indebtedness in any computation under such restriction, Subsidiary Debt constituting:
(1) Indebtedness of a Person existing at the time such Person is merged into or consolidated with or otherwise acquired by any Subsidiary of STBV or at the time of a sale, lease or other disposition of the properties and assets of such Person (or a division thereof) as an entirety or substantially as an entirety to any Subsidiary of STBV and is assumed by such Subsidiary; provided that any such Indebtedness was not incurred in contemplation thereof and is not Guaranteed by any other Subsidiary of STBV (other than any Guarantee existing at the time of such merger, consolidation or sale, lease or other disposition of properties and assets and that was not issued in contemplation thereof);
(2) Indebtedness of a Person existing at the time such Person becomes a Subsidiary of STBV; provided that any such Indebtedness was not incurred in contemplation thereof;
(3) Indebtedness owed to STBV or any Subsidiary of STBV;
(4) any Subsidiary Debt represented by any Guarantee of the 2023 Notes, the 2024 Notes, the 2025 Notes, the 2026 Notes or the 2030 Notes or any Indebtedness or Guarantees under Permitted Bank Indebtedness;
(5) Indebtedness or Guarantees in respect of netting services, business credit card programs, overdraft protection and other treasury, depository and cash management services or incurred in connection with any automated clearing-house transfers of funds or other fund transfer or payment processing services;
(6) Indebtedness or Guarantees arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that any such Indebtedness or Guarantee is extinguished within five Business Days within its incurrence;
(7) Indebtedness or Guarantees in respect of any Qualified Securitization Financing;
(8) reimbursement obligations incurred in the ordinary course of business;
(9) client advances and deposits received in the ordinary course of business;
(10) Indebtedness or Guarantees incurred by Foreign Subsidiaries in an amount not to exceed $300,000,000 at any time outstanding;
(11) Indebtedness or Guarantees incurred (a) in respect of workers’ compensation claims, payment obligations in connection with health or other types of social security benefits, unemployment or other insurance obligations, reclamation and statutory obligations, (b) in connection with the financing of insurance premiums or self-insurance obligations or take-or-pay obligations contained in supply agreements, and (c) in respect of guarantees, warranty or contractual service obligations, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, letters of credit and banker’s acceptances for
operating purposes or to secure any Indebtedness or other obligations referred to in clauses (1) through (9) or this clause (11), payment (other than for payment of Indebtedness) and completion guarantees, in each case provided or incurred (including Guarantees thereof) in the ordinary course of business; or
(12) Indebtedness outstanding on the Issue Date not referred to in clause (4) above and any extension, renewal, replacement, refinancing or refunding of any Indebtedness existing on the Issue Date or referred to in clauses (1), (2) and (4); provided (x) that any Indebtedness incurred to so extend, renew, replace, refinance or refund has a Weighted Average Life to Maturity at the time such Indebtedness is incurred that is not less than the remaining Weighted Average Life to Maturity of the Indebtedness referred to in this clause or clauses (1), (2) and (4) above being extended, renewed, replaced, refinanced or refunded, and (y) the principal amount of the Indebtedness incurred to so extend, renew, replace, refinance or refund shall not exceed the principal amount of the Indebtedness being extended, renewed, replaced, refinanced or refunded plus any premium or fee (including tender premiums) or other reasonable amounts payable, plus all accrued interest on such Indebtedness and the amount of fees, expenses and other costs incurred, in connection with any such extension, renewal, replacement, refinancing or refunding.
(c)Notwithstanding Sections 4.09(a) and (b), STBV or any Subsidiary of STBV may, create, incur, issue, assume, Guarantee or otherwise become liable for or suffer to exist Indebtedness that would otherwise be subject to the restrictions set forth in Sections 4.09(a) and (b), without Guaranteeing the Notes, if after giving effect thereto, Aggregate Debt does not exceed an amount equal to the greater of (a) $3,250,000,000, and (b) 3.25 times EBITDA of STBV for the Measurement Period immediately preceding the date of the creation or incurrence of the Subsidiary Debt. Any Subsidiary also may, without Guaranteeing the payment of the principal of, premium, if any, and interest on the Notes, extend, renew, replace, refinance or refund any Subsidiary Debt permitted pursuant to the preceding sentence; provided (x) that any Subsidiary Debt incurred to so extend, renew, replace, refinance or refund has a Weighted Average Life to Maturity at the time such Subsidiary Debt is incurred that is not less than the remaining Weighted Average Life to Maturity of the Subsidiary Debt being extended, renewed, replaced, refinanced or refunded, and (y) the principal amount of the Subsidiary Debt incurred to so extend, renew, replace, refinance or refund shall not exceed the principal amount of Subsidiary Debt being extended, renewed, replaced, refinanced or refunded plus any premium or fee (including tender premiums) or other reasonable amounts payable, plus all accrued interest on such Subsidiary Debt and the amount of fees, expenses and other costs incurred, in connection with any such extension, renewal, replacement, refinancing or refunding.
(d)Notwithstanding anything to the contrary, (i) in the event that any Wholly Owned Subsidiary of STBV (other than STFC) Guarantees the obligations of any Credit Agreement Borrower, STBV and the Issuer shall cause such Wholly Owned Subsidiary, subject to the receipt of any necessary regulatory approvals, to provide a Note Guarantee by executing and delivering to the Trustee a supplemental indenture and a Notation of Guarantee in accordance with the terms of this Indenture, and (ii) STFC shall not be a guarantor of the Notes on the Issue Date, and in no event shall STFC be required to provide a Note Guarantee unless it shall have become a guarantor of the Existing Notes.
Section 4.10 [Intentionally Omitted].
Section 4.11 [Intentionally Omitted].
Section 4.12 Limitation on Liens.
(a)STBV shall not, and shall not permit any of its Subsidiaries, directly or indirectly, to enter into, create, incur, assume or suffer to exist any Lien on any Principal Property, whether now owned or hereafter acquired, in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except:
(1) Liens existing as of the Issue Date;
(2) Liens granted after the Issue Date created in favor of the Holders of the Notes;
(3) Liens created in substitution of, or as replacements for, any Liens described in clauses (1) and (2) above; provided that based on a good faith determination of Senior Management, the Principal Property encumbered under any such substitute or replacement Lien is substantially similar in nature to the Principal Property encumbered by the otherwise permitted Lien which is being replaced; and
(4) Permitted Liens.
(b)Notwithstanding Section 4.12(a), STBV or any Subsidiary of STBV may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in Section 4.12(a) if after giving effect thereto, Aggregate Debt does not exceed an amount equal to the greater of (a) $3,250,000,000, and (b) 3.25 times EBITDA of STBV for the Measurement Period immediately preceding the date of the creation or incurrence of the Lien. STBV or any Subsidiary of STBV also may, without equally and ratably securing the Notes, create or incur Liens that extend, renew, substitute or replace (including successive extensions, renewals, substitutions or replacements), in whole or in part, any Lien permitted pursuant to the preceding sentence.
Section 4.13 Business Activities.
STBV shall not, and shall not permit any Subsidiary to, engage in any business other than Permitted Businesses, except to such extent as would not be material to STBV and its Subsidiaries taken as a whole.
Section 4.14 Payment of Taxes and Other Claims.
STBV shall, and shall cause each of its Subsidiaries to, pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (a) 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 (b) all lawful claims for labor, materials and supplies except, in each case, any such tax, assessment, charge or claim as is being contested in good faith by appropriate actions or where the failure to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim is not materially adverse to the Holders.
Section 4.15 Offer to Repurchase upon Change of Control.
(a)If a Change of Control occurs, unless the Issuer at such time has given notice of redemption under Section 3.07(b), Section 3.07(c) or Section 3.07(e) with respect to all outstanding Notes, each Holder will have the right to require the Issuer to repurchase all or any part (in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess thereof) of that Holder’s Notes pursuant to an offer to purchase on the terms set forth in this Indenture (the “Change of Control Offer”). In the Change of Control Offer, the Issuer will offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest on the Notes repurchased, to, but excluding, the Change of Control Payment Date (the “Change of Control Payment”). Within 30 days following any Change of Control, unless the Issuer at such time has given notice of redemption under Section 3.07(b), Section 3.07(c) or Section 3.07(e) with respect to all outstanding Notes, the Issuer will give notice to the Trustee and each Holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the date specified in the notice (the “Change of Control Payment Date”), which date will be no earlier than 30 days and no later than 60 days from the date such notice is given, pursuant to the procedures required by this Indenture and described in such notice. The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.15 by virtue of such conflict.
(b)On or prior to 11:00 a.m., New York City time, on the Business Day immediately preceding the Change of Control Payment Date, the Issuer shall, to the extent lawful, deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered.
(c)On the Change of Control Payment Date, the Issuer shall, to the extent lawful:
(i)accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer; and
(ii)deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Issuer.
(d)The Paying Agent shall promptly deliver to each Holder properly tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each new Note will be in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess thereof. The Issuer shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(e)The Issuer shall not be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer or (ii) a valid notice of redemption for all of the Notes has been given, or will be given contemporaneously with the Change of Control, pursuant
to Section 3.07(b), Section 3.07(c) or Section 3.07(e) unless and until such notice has been validly revoked (in the case of a redemption pursuant to Section 3.07(b) or Section 3.07(c)) or there is a default in the payment of the applicable redemption price. A Change of Control Offer may be made in advance of a Change of Control or conditional upon the occurrence of a Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made.
(f)In the event that Holders of not less than 90% in aggregate principal amount of the then outstanding Notes accept a Change of Control Offer and the Issuer (or any third party making such Change of Control Offer in lieu of the Issuer as described above) purchases all of the Notes held by such Holders, the Issuer shall have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the Change of Control Payment Date relating to the Change of Control Offer described above, to redeem all of the Notes that remain outstanding following such Change of Control Payment Date in accordance with Article 3 at a redemption price equal to the Change of Control Payment, plus to the extent not included in the Change of Control Payment, accrued and unpaid interest on the Notes that remain outstanding, to, but excluding, the date of purchase.
Section 4.16 Payments for Consent.
STBV shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid and is paid to all Holders that so consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement.
Section 4.17 Additional Guarantees.
(a)On or after the Issue Date, STBV shall cause each Subsidiary that is required to Guarantee the payment of principal of, premium, if any, and interest on the Notes pursuant to Section 4.09 to become a Guarantor, within 10 Business Days of the creation, assumption, incurrence or Guarantee of the applicable Subsidiary Debt and STBV shall cause each such Subsidiary to execute and deliver to the Trustee within such 10 Business Day period (x) a supplemental indenture in substantially the form attached hereto as Exhibit E and (y) a Notation of Guarantee in substantially the form attached hereto as Exhibit D, pursuant to which such Subsidiary will unconditionally Guarantee, on a joint and several basis, the full and prompt payment of the principal of, premium, if any and interest on the Notes and all other obligations under this Indenture on the same terms and conditions as those set forth in this Indenture.
(b)Each Note Guarantee will be limited to an amount not to exceed the maximum amount that can be Guaranteed by that Subsidiary without rendering the Note Guarantee, as it relates to such Subsidiary, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
(c)Each Note Guarantee shall be automatically released in accordance with the provisions of this Indenture described under Article 11.
Section 4.18 [Intentionally Omitted].
Section 4.19 Suspension of Guarantees Upon Change in Ratings.
(a)If on any date following the Issue Date (1) the Notes are rated Investment Grade by either of the Rating Agencies; and (2) no Default or Event of Default shall have
occurred and be continuing, then, beginning on such date (the “Suspension Date”) and subject to the provisions of Section 4.19(b), the Note Guarantees shall be deemed released and STBV’s obligation under Section 4.17 shall be suspended (collectively, the “Suspended Provisions”).
(b)During any Suspension Period, any Subsidiary Debt incurred prior to or outstanding as of the Suspension Date shall be deemed to have been incurred in compliance with Section 4.09.
(c)In the event that the Notes are no longer rated Investment Grade by both Rating Agencies or an Event of Default shall have occurred and be continuing, the Suspended Provisions will be reinstituted as of and from the date on which the Notes are no longer rated Investment Grade by both Rating Agencies or an Event of Default has occurred and is continuing (any such date, a “Reversion Date”). The period of time between the Suspension Date and the Reversion Date is referred to as the “Suspension Period.” Notwithstanding that the Suspended Provisions may be reinstated, no Default or Event of Default will be deemed to have occurred as a result of a failure to comply with the Suspended Provisions during the Suspension Period.
(d)STBV and its Subsidiaries may honor any contractual commitments to take actions following a Reversion Date without causing a Default or Event of Default; provided that such contractual commitments were entered into during the Suspension Period and not in contemplation of a reversion of the Suspended Provisions.
(e)STBV shall provide an Officers’ Certificate to the Trustee indicating the commencement of any Suspension Period or the occurrence of any Reversion Date. The Trustee will have no obligation to (i) independently determine or verify if such events have occurred, (ii) make any determination regarding the impact of actions taken during the Suspension Period on STBV and its Subsidiaries’ future compliance with their covenants or (iii) notify the Holders of the commencement of the Suspension Period or the Reversion Date.
Section 4.20 Compliance with Laws.
STBV shall comply, and shall cause each of its Subsidiaries to comply, with all applicable statutes, rules, regulations, orders and restrictions of the United States, all states and municipalities thereof, and of any governmental department, commission, board, regulatory authority, bureau, agency and instrumentality of the foregoing, in respect of the conduct of their respective businesses and the ownership of their respective properties, except, in any such case, to the extent the failure to so comply would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of STBV and its Subsidiaries taken as a whole.
Section 4.21 Waiver of Stay, Extension or Usury Laws.
The Issuer and each Guarantor covenants (to the extent permitted by applicable law) 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 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 permitted by applicable law) the Issuer and each Guarantor hereby expressly waives all benefit or advantage of any such law, and covenants (to the extent permitted by applicable law) that it shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted.
Article 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
(a)Neither STBV nor the Issuer may, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not it is the surviving entity); or (2) sell, assign, transfer, convey, lease or otherwise dispose of all or substantially all of its and STBV’s Subsidiaries’ properties or assets taken as a whole, in one or more related transactions, to another Person, unless:
(i)either: (A) STBV or the Issuer, as applicable, is the surviving entity; or (B) the Person formed by or surviving any such consolidation or merger (if other than STBV or the Issuer, as applicable) or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made is a corporation or limited liability company organized or existing under the laws of any member state of the European Union, the United States, any state of the United States or the District of Columbia (STBV, the Issuer or such Persons, as applicable, including the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, as the case may be, being herein called the “Successor Company”); provided that at any time the Successor Company is the issuer of the Notes and is a limited liability company, there shall be a co-issuer of the Notes that is a corporation that satisfies the requirements of this Section 5.01(a);
(ii)the Successor Company (if other than STBV or the Issuer, as applicable) assumes all the obligations of STBV or the Issuer under the Note Guarantee or the Notes, as the case may be, and this Indenture pursuant to a supplemental indenture;
(iii)immediately after such transaction, no Default or Event of Default exists; and
(iv)STBV delivers an Officers’ Certificate and Opinion of Counsel stating that such transaction complies with this Indenture and, if applicable, all conditions precedent in this Indenture to the execution of the supplemental indenture have been satisfied.
The foregoing provision shall also apply to any Guarantor other than STBV.
(b)For purposes of this Article 5, the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of STBV (including the Issuer), which properties and assets, if held by STBV instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of STBV on a consolidated basis, shall be deemed to be the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of STBV.
(c)For the avoidance of doubt, it is agreed that, for all purposes under this Indenture, a sale, transfer or disposition of the properties or assets of STBV and its Subsidiaries (including the Issuer) that, in the aggregate accounted for no more than two-thirds of STBV’s aggregate EBITDA, during the four most recent consecutive fiscal quarters prior to the date of such sale, transfer or disposition for which financial statements are available (as specified in an
Officers’ Certificate delivered to the Trustee), shall be deemed not to be a sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of STBV.
(d)Upon the execution and delivery of the supplemental indenture referred to in Section 5.01(a)(ii), the predecessor company shall be released from its obligations under this Indenture and the Successor Company shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer or STBV, as applicable, under this Indenture and the Notes or the Note Guarantee, as the case may be, but, in the case of a lease of all or substantially all its assets, the predecessor shall not be so released.
(e)Notwithstanding the foregoing, clause (iii) of Section 5.01(a) shall not apply to (A) a sale, assignment, transfer, conveyance, lease or other disposition of assets between or among STBV and its Subsidiaries, (B) any Subsidiary consolidating with, merging into or selling, assigning, transferring, conveying, leasing or otherwise disposing of all or part of its properties and assets to STBV or to another Subsidiary of STBV (provided that, in the event that such Subsidiary is a Guarantor, it may consolidate with, merge into or sell, assign, transfer, convey, lease or otherwise dispose of all or part of its properties and assets solely to the Issuer or another Guarantor) or (C) the Issuer or STBV merging with an Affiliate solely for the purpose and with the sole effect of reincorporating the Issuer or STBV, as applicable, in another jurisdiction.
Article 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
(a)Each of the following is an “Event of Default”:
(i)the Issuer defaults in payment when due and payable, upon redemption, acceleration or otherwise, of principal of, or premium, if any, on the Notes;
(ii)the Issuer defaults in the payment when due of interest on or with respect to the Notes and such default continues for a period of 30 days;
(iii)the Issuer or STBV defaults in the performance of, or breaches any covenant, warranty or other agreement contained in, this Indenture (other than a default in the performance or breach of a covenant, warranty or agreement which is specifically dealt with in clauses (i) or (ii) above) and such default or breach continues for a period of 60 days after the notice specified below;
(iv)a default under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any Indebtedness for money borrowed by STBV or any Subsidiary or the payment of which is Guaranteed by STBV or any Subsidiary of STBV (other than Indebtedness owed to STBV or a Subsidiary), whether such Indebtedness or Guarantee now exists or is created after the Issue Date, if (A) such default either (1) results from the failure to pay any such Indebtedness at its stated final maturity (after giving effect to any applicable grace periods) or (2) relates to an obligation other than the obligation to pay principal of any such Indebtedness at its stated final maturity and results in the holder or holders of such Indebtedness causing such Indebtedness to become
due prior to its stated maturity and (B) the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness in default for failure to pay principal at stated final maturity (after giving effect to any applicable grace periods), or the maturity of which has been so accelerated, aggregate in excess of $50,000,000 (or its foreign currency equivalent) at any one time outstanding;
(v)the Issuer, STBV or any Significant Subsidiary of STBV pursuant to or within the meaning of any Bankruptcy Law:
(A)commences a voluntary case;
(B)consents to the entry of an order for relief against it in an involuntary case;
(C)consents to the appointment of a custodian of it or for all or substantially all of its property;
(D)makes a general assignment for the benefit of its creditors;
(E)takes any comparable action under any foreign laws relating to insolvency;
(F)generally is not able to pay its debts as they become due; or
(G)takes any corporate action to authorize or effect any of the foregoing;
(vi)a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A)is for relief against the Issuer, STBV or any Significant Subsidiary of STBV in an involuntary case;
(B)appoints a custodian of the Issuer, STBV or any Significant Subsidiary of STBV or for all or substantially all of the property or assets of the Issuer, STBV or any Significant Subsidiary of STBV; or
(C)orders the liquidation of the Issuer, STBV or any Significant Subsidiary of STBV,
and the order or decree remains unstayed and in effect for 60 days;
(vii)the failure by the Issuer, STBV or any Significant Subsidiary of STBV to pay final judgments aggregating in excess of $50,000,000, which final judgments remain unpaid, undischarged and unstayed for a period of more than 60 days after the applicable judgment becomes final, and, with respect to any such judgments covered by insurance, an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly stayed; or
(viii)the Note Guarantee of STBV, a Significant Subsidiary of STBV or any group of Subsidiaries of STBV that, taken together as of the date of the most recent audited financial statements of STBV, would constitute a Significant
Subsidiary of STBV ceases to be in full force and effect (except as contemplated by the terms hereof) or any Guarantor denies or disaffirms its obligations under this Indenture or any Note Guarantee, other than by reason of the release of such Note Guarantee in accordance with the terms of this Indenture.
(b)If a Default for a failure to report or failure to deliver a required certificate in connection with another default (the “Initial Default”) occurs, then at the time such Initial Default is cured, such Default for a failure to report or failure to deliver a required certificate in connection with another default that resulted solely because of that Initial Default will also be cured without any further action.
(c)Any Default or Event of Default for the failure to comply with the time periods prescribed in Section 4.03 or otherwise to deliver any notice or certificate pursuant to any other provision of this Indenture shall be deemed to be cured upon the delivery of any such report required by Section 4.03 or such notice or certificate, as applicable, even though such delivery is not within the prescribed period specified in this Indenture.
Section 6.02 Acceleration.
(a)If an Event of Default specified in clause (v) or (vi) of Section 6.01(a) occurs and is continuing, then all unpaid principal of, and premium, if any, and accrued and unpaid interest on all of the outstanding Notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
(b)If any Event of Default (other than an Event of Default specified in clauses (v) or (vi) of Section 6.01(a)) shall occur and be continuing, the Trustee or the Holders of at least 25% in principal amount of outstanding Notes under this Indenture may declare the principal of, premium, if any, and accrued interest on such Notes to be immediately due and payable by notice in writing to the Issuer and the Trustee (if given by the Holders) specifying the respective Event of Default and that it is a “notice of acceleration,” and the same shall become immediately due and payable.
(c)Any notice of Default, notice of acceleration or instruction to the Trustee to provide a notice of Default, notice of acceleration or take any other action (a “Noteholder Direction”) provided by any one or more Holders of the Notes (other than a Regulated Bank) (each a “Directing Holder”) must be accompanied by a written representation from each such Holder to the Issuer and the Trustee that such Holder is not (or, in the case such Holder is DTC or its nominee, that such Holder is being instructed solely by beneficial owners that have represented to such Holder that they are not) Net Short (a “Position Representation”), which representation, in the case of a Noteholder Direction relating to a notice of Default shall be deemed repeated at all times until the resulting Event of Default is cured or otherwise ceases to exist or the Notes are accelerated. In addition, each Directing Holder must, at the time of providing a Noteholder Direction, covenant to provide the Issuer with such other information as the Issuer may reasonably request from time to time in order to verify the accuracy of such Holder’s Position Representation within five Business Days of request therefor (a “Verification Covenant”). In any case in which the Holder of the Notes is DTC or its nominee, any Position Representation or Verification Covenant required hereunder shall be provided by the beneficial owner of the Notes in lieu of DTC or its nominee.
If, following the delivery of a Noteholder Direction, but prior to the acceleration of the Notes, the Issuer determines in good faith that there is a reasonable basis to believe that a Directing Holder was, at any relevant time, in breach of its Position Representation and provides to the Trustee an Officers’ Certificate stating that the Issuer has initiated litigation in a court of competent jurisdiction seeking a determination that such Directing Holder was, at such time, in
breach of its Position Representation, and seeking to invalidate any Event of Default that resulted from the applicable Noteholder Direction, the cure period with respect to such Default shall be automatically stayed pending a final and non-appealable determination of a court of competent jurisdiction on such matter. If, following the delivery of a Noteholder Direction, but prior to the acceleration of the Notes, the Issuer provides to the Trustee an Officers’ Certificate stating that a Directing Holder failed to satisfy its Verification Covenant, the cure period with respect to such Default shall be automatically stayed and the cure period with respect to any Event of Default that resulted from the applicable Noteholder Direction shall be automatically reinstituted and any remedy stayed pending satisfaction of such Verification Covenant. Any breach of the Position Representation shall result in such Holder’s participation in such Noteholder Direction being disregarded; and, if, without the participation of such Holder, the percentage of Notes held by the remaining Holders of the Notes that provided such Noteholder Direction would have been insufficient to validly provide such Noteholder Direction, such Noteholder Direction shall be void ab initio, with the effect that such Event of Default shall be deemed never to have occurred, acceleration shall be voided and the Trustee shall be deemed not to have received such Noteholder Direction or any notice of such Default or Event of Default.
Notwithstanding anything in the preceding two paragraphs to the contrary, any Noteholder Direction delivered to the Trustee during the pendency of an Event of Default as the result of bankruptcy or similar proceedings shall not require compliance with this Section 6.02(c). In addition, for the avoidance of doubt, this Section 6.02(c) shall not apply to any Holder that is a Regulated Bank.
For the avoidance of doubt, the Trustee shall be entitled to conclusively rely on any Noteholder Direction, Position Representation, Verification Covenant, Officers’ Certificate or other document delivered to it pursuant to this Section 6.02(c), shall have no duty to inquire as to or investigate the accuracy of any Position Representation, enforce compliance with any Verification Covenant, verify any statements in any Officers’ Certificate delivered to it, or otherwise make calculations, investigations or determinations with respect to Regulated Banks, Derivative Instruments, Net Shorts, Long Derivative Instruments, Short Derivative Instruments or otherwise and shall have no liability for ceasing to take any action or staying any remedy. The Trustee shall have no liability to the Issuer, any Holder or any other Person in acting in good faith on a Noteholder Direction or to determine whether any Holder has delivered a Position Representation or that such Position Representation conforms with this Indenture or any other agreement or whether or not any Holder is a Regulated Bank.
(d)At any time after a declaration of acceleration of the unpaid principal, premium (if any) and accrued and unpaid interest has occurred with respect to the Notes as described in Section 6.02(a) or (b), the Holders of a majority in aggregate principal amount of the then outstanding Notes may rescind and cancel such declaration and its consequences by written notice to the Issuer and the Trustee:
(i)if the rescission would not conflict with any judgment or decree;
(ii)if all existing Events of Default have been cured or waived except nonpayment of principal, premium, if any, or accrued interest that has become due solely because of the acceleration;
(iii)to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid;
(iv)if the Issuer has paid the Trustee its reasonable compensation and reimbursed the Trustee for its expenses (including the fees and expenses of its counsel), disbursements and advances; and
(v)in the event of the cure or waiver of an Event of Default under this Indenture of the type described in clause (v) and (vi) of Section 6.01(a), the Trustee shall have received an Officers’ Certificate that such Event of Default has been cured or waived.
No such rescission shall affect any subsequent Default or impair any right consequent thereto.
Section 6.03 Other Remedies.
(a)If a 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 interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
(b)The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon a Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Default. No remedy is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by law.
(c)In the event of any Event of Default specified in clause (iv) of Section 6.01(a), such Event of Default and all consequences thereof (excluding, however, any resulting payment default, other than as a result of the acceleration of the Notes) shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 20 days after such Event of Default arose: (x) the Indebtedness or Guarantee that is the basis for such Event of Default has been discharged or (y) the holders of such Indebtedness or Guarantee have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default or (z) the default that is the basis for such Event of Default is no longer continuing, it being understood that in no event shall an acceleration of the principal amount of, premium, if any, and accrued interest on the Notes, as described above, be automatically annulled, waived or rescinded upon the happening of any such events.
(d)Holders may not enforce this Indenture or the Notes, except as provided in this Indenture. The Trustee is under no obligation to exercise any of its rights or powers under this Indenture at the request, order or direction of any of the Holders, unless such Holders have offered to the Trustee indemnity reasonably satisfactory to it.
Section 6.04 Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of Notes at the time then outstanding may on behalf of the Holders of all the Notes waive any Default with respect to such Notes and its consequences by providing written notice thereof to the Issuer and the Trustee, except a Default in the payment of the principal of, premium, if any, or interest on the Notes or a covenant or provision of this Indenture which cannot be modified or amended without the consent of the Holder of each outstanding Note affected. In the case of any such waiver, the Issuer, the Trustee and the Holders shall be restored to their former positions and rights under this Indenture, respectively; provided that no such waiver shall extend to any subsequent or other Default or impair any right consequent thereto.
Section 6.05 Control by Majority.
Subject to the other provisions of this Indenture and applicable law, the Holders of not less than a majority in aggregate principal amount of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it. The Trustee may refuse to follow any direction that conflicts with any law or this Indenture, that the Trustee determines may be unduly prejudicial to the rights of another Holder, or that may involve the Trustee in personal liability; provided that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. In the event the Trustee takes any action or follows any direction pursuant to this Indenture, the Trustee shall be entitled to indemnification satisfactory to the Trustee against any loss or expense caused by taking such action or following such direction.
Section 6.06 Limitation on Suits.
A Holder may not pursue any remedy with respect to this Indenture or the Notes unless:
(i) the Holder gives to the Trustee written notice of a continuing Event of Default;
(ii) the Holder or Holders of at least 25% in principal amount of the outstanding Notes make a written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer and provide to the Trustee indemnity reasonably satisfactory to the Trustee against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 45 days after receipt of the request and the offer and the provision of indemnity; and
(v) during such 45-day period the Holder or Holders of a majority in aggregate principal amount of the outstanding Notes do not give the Trustee a direction in accordance with Section 6.05 which, in the opinion of the Trustee, is inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over such other Holder.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal of and interest 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 the Holder.
Section 6.08 Collection Suit by Trustee.
If a Default in payment of principal or interest specified in clauses (i) or (ii) of Section 6.01(a) 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 and fees remaining unpaid, 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.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relating to the Issuer, its creditors or 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 each of the Trustee and the Agents any amount due to it for the compensation, expenses, disbursements and advances of the Trustee, the Agents and their respective agents and counsel, and any other amounts due the Trustee and the Agents under Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. The Trustee shall be entitled to participate as a member of any official committee of creditors in the matters as it deems necessary or advisable.
Section 6.10 Priorities.
Subject to the provisions of Article 10, if the Trustee collects any money or property pursuant to this Article 6, it shall pay out the money or property in the following order:
First: to the Trustee and the Agents for amounts due under Section 7.07;
Second: to Holders for interest accrued on the Notes, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for interest;
Third: to Holders for principal amounts due and unpaid on the Notes, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal; and
Fourth: to the Issuer or, if applicable, the Guarantors, as their respective interests may appear.
The Trustee, upon prior notice to the Issuer, may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10% in principal amount of the outstanding Notes.
Article 7
TRUSTEE
Section 7.01 Duties of Trustee.
(a)The Trustee, prior to the occurrence of an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge and after the curing of all such Events of Defaults which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. If an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge has occurred and is continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b)Except during the continuance of an Event of Default:
(i)the duties of the Trustee will be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii)in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, with respect to certificates or opinions specifically required by any provision hereof to be furnished to it, the Trustee will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture; provided, however, that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished to it hereunder.
(c)The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i)this paragraph (c) does not limit the effect of paragraph (b) of this Section 7.01;
(ii)the Trustee will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(iii)the Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.
(d)No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability for the performance of any of its duties hereunder or the exercise of any of its rights or powers. The Trustee will be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, unless such Holder has offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.
(e)The Trustee will not be liable for interest on, and will not be obligated to invest, any money received by it except as the Trustee may agree in writing with the Issuer. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Section 7.02 Rights of Trustee.
(a)The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b)Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c)The Trustee may execute any of the trusts or powers hereunder and perform any duties hereunder either directly or through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent appointed with due care.
(d)The Trustee will not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e)Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer will be sufficient if signed by an Officer of the Issuer.
(f)The Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity or security satisfactory to it against the losses, liabilities and expenses that might be incurred by it in compliance with such request or direction.
(g)In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(h)The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.
(i)The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Agents, and the Trustee, in each of its capacities hereunder, each Agent and each agent, custodian, and other Person employed to act hereunder.
(j)The Trustee may request that the Issuer and each Guarantor deliver an Officers’ Certificate setting forth the names of individuals and titles of Officers authorized at such time to take specified actions pursuant to this Indenture.
(k)The right of the Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act.
(l)The Trustee shall have no obligation to (i) independently determine or verify the rating of any Notes or if a commencement of any Suspension Period or the Reversion Date has occurred, (ii) make any determination regarding the impact of actions taken during the Suspension Period on STBV’s and its Subsidiaries’ future compliance with their covenants or (iii) notify the Holders of the commencement of the Suspension Period or the Reversion Date.
(m)Notwithstanding any provision herein to the contrary, in no event shall the Trustee 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, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like which restrict or prohibit the providing of the services contemplated by this Indenture, inability to obtain material, equipment, or communications or computer facilities, or the failure of equipment or interruption of communications or computer facilities, and other causes beyond its control whether or not of the same class or kind as specifically named above.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest (within the meaning of the TIA) it must eliminate such conflict within 90 days, apply to the Commission for permission to continue as trustee (if this Indenture has been qualified under the TIA) or resign. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee’s Disclaimer.
The Trustee will not be responsible for and makes no representation as to the validity or adequacy of this Indenture, any related offering material 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 of this Indenture, it will not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it will not be responsible for any statement or recital herein, any statement in the Notes, the Offering Memorandum or any other document in connection with the sale of the Notes or pursuant to this Indenture or the legality or validity of the Notes or this Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is known to the Trustee in accordance with Section 7.02(h), the Trustee will provide to Holders a notice of the Default or Event of Default within 90 days after the Trustee has notice thereof. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest on, any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders.
Section 7.06 [Intentionally Omitted].
Section 7.07 Compensation and Indemnity.
(a)The Issuer will pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services hereunder as agreed between the Issuer and the Trustee. The Trustee’s compensation will not be limited by any law on compensation of a trustee of an express trust. The Issuer will reimburse the Trustee promptly upon request for all reasonable and documented disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses will include the reasonable and documented compensation, disbursements and expenses of the Trustee’s agents and counsel.
(b)The Issuer and each Guarantor, jointly and severally, will indemnify the Trustee and any director, officer, employee or agent of the Trustee and hold each of them harmless for, from and against any and all losses, liabilities, claims, damages or expenses incurred by it (i) arising out of or in connection with the acceptance or administration of its duties under this Indenture, including, without limitation, the reasonable and documented costs and expenses (including the costs and expenses of the Trustee’s agents and counsel) of enforcing this Indenture against the Issuer and the Guarantors (including this Section 7.07) and defending itself against any claim (whether asserted by the Issuer, the Guarantors, any Holder or any other Person) or (ii) arising out of or in connection with the exercise or performance of any of its powers or duties hereunder and/or the exercise of its rights, except to the extent any such loss, liability or expense is attributable to its own negligence, bad faith or willful misconduct. The Trustee will notify the Issuer promptly of any claim of which a Responsible Officer has received written notice for which it may seek indemnity. Failure by the Trustee to so notify the Issuer will not relieve the Issuer or any of the Guarantors of their obligations hereunder. The Issuer or such Guarantor, as the case may be, will defend the claim and the Trustee will cooperate in the defense. The Trustee may have separate counsel and the Issuer and the Guarantors, as applicable, will pay the reasonable and documented fees and expenses of such counsel; provided, however, that the Issuer and any Guarantor shall not be required to pay such fees and expenses if it assumes such indemnified party’s defense and, in such indemnified party’s reasonable judgment, there is no conflict of interest or potential conflict of interest between the Issuer and the Guarantors, as applicable, and such party in connection with such defense. Neither the Issuer nor any Guarantor need pay for any settlement made without its consent, which consent will not be unreasonably withheld.
(c)The obligations of the Issuer and the Guarantors under this Section 7.07 will survive payment of the Notes, resignation or removal of the Trustee or any Agent, the satisfaction and discharge of this Indenture or other termination of this Indenture.
(d)To secure the Issuer’s and the Guarantors’ payment obligations in this Section 7.07, the Trustee will have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien will survive the satisfaction and discharge of this Indenture.
(e)When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(a)(v) or (vi) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
Section 7.08 Replacement of Trustee.
(a)A resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.
(b)The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Issuer. The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing. The Issuer may remove the Trustee if:
(i)the Trustee fails to comply with Section 7.10 hereof;
(ii)the Trustee is adjudged bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(iii)a custodian, receiver or public officer takes charge of the Trustee or its property; or
(iv)the Trustee becomes incapable of acting.
(c)If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuer will promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.
(d)If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Issuer, or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(e)If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10 hereof, such Holder may petition at the expense of the Issuer any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(f)A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee will mail a notice of its succession to Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuer’s and the Guarantors’ obligations under Section 7.07 hereof will continue for the benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business (including any corporate trust business contemplated by this Indenture) to, another corporation, the successor corporation without any further act will be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation 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 trust powers, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition.
Section 7.11 Preferential Collection of Claims Against the Issuer.
The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated therein.
Article 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuer may at any time, at the option of its Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes and Note Guarantees upon compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Issuer and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been released from their obligations with respect to all outstanding Notes (including the Note Guarantees) on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Issuer and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Guarantees), which will thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in clauses (i) and (ii) below, and to have satisfied all their other obligations under such Notes, the Note Guarantees and this Indenture (and the Trustee, on demand of and at the expense of the Issuer, shall execute instruments acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder:
(i) the rights of Holders of outstanding Notes issued hereunder to receive payments in respect of the principal of, or interest or premium, if any, on such Notes when such payments are due from the trust referred to below;
(ii) the Issuer’s obligations with respect to the Notes issued hereunder concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment;
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the obligations of the Issuer and the Guarantors in connection therewith; and
(iv) this Article 8.
Subject to compliance with this Article 8, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Issuer and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of their obligations under the covenants contained in Sections 4.03, 4.05, 4.08, 4.09, 4.12, 4.13, 4.15, 4.16, 4.17 and 5.01(a)(iii) hereof with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes will 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 will continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes will not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and the Note Guarantees, the Issuer and the Guarantors may omit to comply with and will have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply will not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes and Note Guarantees, will be unaffected thereby. In addition, upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, and clauses (iii), (iv), (v) (with respect to a Significant Subsidiary of STBV), (vi) (with respect to a Significant Subsidiary of STBV), (vii) and (viii) of Section 6.01(a) will not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
(a)In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 hereof:
(i)the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders cash in U.S. dollars, non-callable U.S. Government Securities, or a combination of cash in U.S. dollars and non-callable U.S. Government Securities, in amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants delivered to the Trustee, to pay the principal of, and interest and premium, if any, on the outstanding Notes issued hereunder 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;
(ii)in the case of an election under Section 8.02 hereof, the Issuer has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the Issuer or STBV has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the Issue Date, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel will confirm that, the Holders of the outstanding Notes issued hereunder will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(iii)in the case of an election under Section 8.03 hereof, the Issuer has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes issued hereunder will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(iv)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, or arising in connection with, the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings);
(v)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 Guarantor is a party or by which the Issuer or any Guarantor is bound;
(vi)STBV must deliver to the Trustee an Officers’ Certificate stating that the deposit referred to in clause (i) was not made by the Issuer with the intent of preferring the Holders over the other creditors of the Issuer or any Guarantor or with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer or any Guarantor or others; and
(vii)STBV 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 of the Notes have been complied with.
(b)Notwithstanding the foregoing, the Opinion of Counsel required by clauses (a)(ii) and (a)(iii) above with respect to a Legal Defeasance or a Covenant Defeasance, as applicable, need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable on the maturity date 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.
(c)Upon satisfaction of the conditions set forth herein and upon the request of the Issuer, the Trustee shall acknowledge in writing the discharge of those obligations that the Issuer terminates.
Section 8.05 Deposited Money and U.S. Government Securities to Be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money, non-callable U.S. Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
The Issuer will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable U.S. Government Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.
Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to the Issuer from time to time upon the request of the Issuer any money, non-callable U.S. Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a)(ii) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to the Issuer.
Subject to applicable abandoned property law, any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of, premium, if any, or interest on, any Note and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Issuer on its request or (if then held by the Issuer) will be discharged from such trust; and the Holder of such Note will thereafter be permitted to look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, will 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 The New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Issuer.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable U.S. Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuer’s and the Guarantors’ obligations under this Indenture and the Notes and the Note Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Issuer makes any payment of principal of, premium, if any, or interest on, any Note following the reinstatement of its obligations, the Issuer will 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 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Without the consent of any Holder, the Issuer, the Guarantors (except that, with respect to Sections 9.01(vi) and 9.01(ix) below, the Guarantors need not be a party to a
supplemental indenture that solely adds or releases a Note Guarantee) and the Trustee may amend or supplement this Indenture, the Notes or the Note Guarantees:
(i) to cure any ambiguity, mistake, defect or inconsistency;
(ii) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(iii) to provide for the assumption by a Successor Company or a successor company of a Guarantor, as applicable, of the Issuer’s or such Guarantor’s obligations under this Indenture;
(iv) to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights hereunder of any Holder;
(v) to secure the Notes;
(vi) to add a Note Guarantee;
(vii) to conform the text of this Indenture or the Notes to any provision of the “Description of Notes” included in the Offering Memorandum relating to the Notes;
(viii) to provide for the issuance of Additional Notes in accordance with the provisions set forth in this Indenture; or
(ix) to release a Guarantor from its Note Guarantee; provided that such release is in accordance with the applicable provisions of this Indenture;
provided, that the Issuer has delivered to the Trustee an Opinion of Counsel and an Officers’ Certificate, each stating that such amendment or supplement complies with the provisions of this Section 9.01.
Section 9.02 With Consent of Holders of Notes.
(a)Subject to Section 6.07 and Section 9.02(b), the Issuer, the Guarantors and the Trustee, together, with the written consent of the Holder or Holders of a majority in aggregate 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), may amend or supplement this Indenture or the Notes without notice to any other Holders. Subject to Section 6.04, the Holder or Holders of a majority in aggregate principal amount of the Notes then outstanding may waive any existing default or compliance with any provision of this Indenture or the Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes) without notice to any other Holders (except a default in respect of the payment of principal of, premium, if any, or interest on the Notes or a covenant or provision of this Indenture which cannot be modified or amended without the consent of the Holder of each outstanding Note affected).
(b)Notwithstanding Section 9.02(a), without the consent of each Holder of an outstanding Note affected, an amendment, supplement or waiver, including a waiver pursuant to Section 6.04, may not:
(i)reduce the principal amount of Notes issued hereunder whose Holders must consent to an amendment, supplement or waiver;
(ii)reduce the principal of or change the fixed maturity of any Note issued hereunder or alter the provisions with respect to the redemption of the outstanding Notes issued hereunder (other than provisions relating to the covenants described above under Section 4.15, except as set forth in clause (x) below);
(iii)reduce the rate of or change the time for payment of interest on any Note issued hereunder;
(iv)waive a Default or Event of Default in the payment of principal of, or interest or premium, if any, on the outstanding Notes issued hereunder (except a rescission of acceleration of the Notes issued hereunder by the Holders of a majority in aggregate principal amount of the then outstanding Notes issued hereunder with respect to a nonpayment default and a waiver of the payment default that resulted from such acceleration);
(v)make any Note payable in money other than that stated in the Notes;
(vi)make any change in the provisions of this Indenture relating to waivers of past Defaults or impair the right of any Holder to institute suit for the enforcement of any payment on or with respect to the Notes;
(vii)waive a redemption payment with respect to any Note issued hereunder (other than a payment required by Section 4.15, except as set forth in clause (x) below);
(viii)make any change in the ranking or priority of any Note issued hereunder that would adversely affect the Holders;
(ix)modify the Note Guarantees in any manner adverse to the Holders;
(x)amend, change or modify in any material respect the obligation of the Issuer to make and consummate a Change of Control Offer in respect of a Change of Control that has occurred; or
(xi)make any change in the preceding amendment and waiver provisions.
(c)It shall not be necessary for the consent of the Holders under this Section to approve the particular form of any proposed amendment, supplement or waiver but it shall be sufficient if such consent approves the substance thereof.
(d)After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuer shall give to the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuer to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.
Section 9.03 [Intentionally Omitted].
Section 9.04 Revocation and Effect of Consents.
(a)Until an amendment, waiver or supplement becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder 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 or subsequent Holder may revoke the consent as to his Note or portion of his Note by notice to the Trustee or the Issuer received before the date on which the Trustee receives an Officers’ Certificate certifying that the Holders of the requisite principal amount of Notes have consented (and not theretofore revoked such consent) to the amendment, supplement or waiver.
(b)The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver which record date shall be at least 30 days prior to the first solicitation of such consent. If a record date is fixed, then notwithstanding the last sentence of the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date. The Issuer shall inform the Trustee in writing of the fixed record date if applicable.
(c)After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless it makes a change described in any of clauses (i) through (xi) of Section 9.02(b), in which case, the amendment, supplement or waiver shall bind only each Holder of a Note who has consented to it and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note; provided that any such waiver shall not impair or affect the right of any Holder to bring suit for the enforcement of any such payment on or after such respective dates without the consent of such Holder.
Section 9.05 Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note, the Issuer may require the Holder of the Note to deliver it to the Trustee. The Issuer shall provide the Trustee with an appropriate notation on the Note about the changed terms and cause the Trustee to return it to the Holder at the Issuer’s expense. Alternatively, if the Issuer or the Trustee so determines, the Issuer in exchange for the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms. Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver authorized pursuant to this Article 9; provided, that the Trustee may, but shall not be obligated to, execute any such amendment, supplement or waiver which affects the Trustee’s own rights, duties or immunities under this Indenture. The Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel and an Officers’ Certificate each stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article 9 is authorized or permitted by this Indenture and constitutes the legal, valid and binding obligations of the Issuer enforceable in accordance with its terms. Such Opinion of Counsel and Officers’ Certificate shall be at the expense of the Issuer.
Article 10
GUARANTEES
Section 10.01 Guarantee.
(a)Subject to this Article 10, each of the Guarantors hereby, jointly and severally, and fully and unconditionally, Guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of, this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (i) the principal of, premium, if any, and accrued and unpaid interest and defaulted interest, if any, on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium, if any, and interest and defaulted interest, if any, on the Notes (pursuant to Section 2.12), if lawful (subject in all cases to any applicable grace period provided herein), and all other obligations of the Issuer to the Holders or the Trustee hereunder or thereunder will be promptly paid in full, 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 any of such other obligations, the same will be promptly paid in full when due in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Failing payment when due of any amount so Guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a Guarantee of payment and not a Guarantee of collection.
(b)Each Guarantor hereby agrees that, to the maximum extent permitted under applicable law, its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes or the Trustee with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Subject to Section 6.06, each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that its Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.
(c)If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to any of the Issuer or the Guarantors, any amount paid by any of them to the Trustee or such Holder, the Note Guarantees, to the extent theretofore discharged, shall be reinstated with full force and effect.
(d)Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders or the Trustee in respect of any obligations Guaranteed hereby until payment in full of all obligations Guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Guaranteed hereby may be accelerated as provided in Article 6 for the purposes of its Note 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 declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of its Note Guarantee. The Guarantors shall have the
right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders or the Trustee under any Note Guarantee.
Section 10.02 Limitation on Guarantor Liability.
(a)Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b)Notwithstanding anything herein to the contrary, the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i)90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii)90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture.
The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Section 10.03 Execution and Delivery of Guarantee.
(a)To evidence its Note Guarantee set forth in Section 10.01, each Guarantor hereby agrees that a notation of such Note Guarantee (a “Notation of Guarantee”) substantially in the form attached hereto as Exhibit D shall be endorsed by an Officer of such Guarantor by manual, electronic or facsimile signature on each Note authenticated and delivered by the Trustee and that this Indenture shall be executed on behalf of such Guarantor by one of its Officers.
(b)Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 shall remain in full force and effect notwithstanding any failure to endorse on each Note a Notation of Guarantee.
(c)If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed, the Note Guarantee shall be valid nevertheless.
(d)The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.
(e)If required by Section 4.17, STBV shall cause such Subsidiaries to execute supplemental indentures to this Indenture and Notations of Guarantee in accordance with Section 4.17 and this Article 10, to the extent applicable.
Section 10.04 Guarantors May Consolidate, Etc., on Certain Terms.
Each Guarantor may consolidate with or merge into or sell its assets to the Issuer or another Guarantor without limitation, or with, into or to any other Persons upon the terms and conditions set forth in Article 5.
Section 10.05 Releases.
The Note Guarantee of a Guarantor (other than the Note Guarantee of STBV, except pursuant to Section 5.01, Article 8 or Article 11) will be automatically released in the event that:
(a)there is a sale, disposition or other transfer (including through merger or consolidation) of (i) all of the Capital Stock (or any sale, disposition or other transfer of Capital Stock (including through merger or consolidation) following which the applicable Guarantor is no longer a Subsidiary of STBV), or (ii) all or substantially all the assets, of the applicable Guarantor;
(b)in the case of any Subsidiary which after the Issue Date is required to provide a Note Guarantee pursuant to Section 4.17, the release or discharge of the Guarantee by such entity of all Indebtedness of STBV or any Subsidiary of STBV or the repayment of all the Indebtedness or Disqualified Stock, in each case, which resulted in an obligation to provide a Note Guarantee;
(c)if the Issuer exercises its Legal Defeasance option or its Covenant Defeasance option as described under Article 8 or if its obligations under this Indenture are discharged in accordance with the terms of this Indenture as described under Article 11; or
(d)such Guarantor is also a guarantor or borrower under the Credit Agreement as in effect on the Issue Date and, at the time of release of its Note Guarantee, (x) has been released from its Guarantee of, and all pledges and security, if any, granted by it in connection with the Credit Agreement, (y) is not an obligor under any Indebtedness (other than Indebtedness permitted to be incurred pursuant to clause (3), (5), (6), (7), (8), (9), (10) and (11) of Section 4.09(b) and (z) does not Guarantee any Indebtedness in excess of $50,000,000 (or its foreign currency equivalent) at such time outstanding of the Issuer or any of the other Guarantors.
Article 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge.
(a)This Indenture will be discharged and will cease to be of further effect as to all Notes issued hereunder, when:
(i)Either:
(A)all the 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 or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, have been delivered to the Trustee for cancellation; or
(B)all the Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the giving of a notice of redemption or otherwise or will become due and payable by reason of the giving of a notice of redemption or otherwise within one year and the Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereof, in amounts as will be sufficient, without consideration of any reinvestment of interest, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants delivered to the Trustee, to pay and discharge the entire Indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption;
(ii)in the case of subclause (i)(B) above, no Default or Event of Default has occurred and is continuing under this Indenture on the date of the deposit or will occur as a result of the deposit (other than a Default or Event of Default resulting from or arising in connection with borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings) and the deposit will not result in a breach or violation of, or constitute a default under, any other material instrument to which the Issuer or STBV is a party or by which the Issuer or STBV is bound;
(iii)the Issuer has paid or caused to be paid all sums payable by it under this Indenture; and
(iv)the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes issued hereunder at maturity or the redemption date, as the case may be.
(b)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.
(c)Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to subclause (B) of clause (i) of Section 11.01(a), the provisions of Sections 11.02 and 8.06 hereof will survive such satisfaction and discharge. In addition, nothing in this Section 11.01 will be deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the satisfaction and discharge of this Indenture
Section 11.02 Application of Trust Money.
Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or U.S. Government Securities in accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s and any Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof; provided that if the Issuer has made any payment of principal of, premium, if any, or interest on, any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Securities held by the Trustee or Paying Agent.
Article 12
MISCELLANEOUS
Section 12.01 [Intentionally Omitted].
Section 12.02 Notices.
Any notice, demand, instruction, request, direction or communication by the Issuer, any Guarantor or the Trustee to the others is duly given if in English and in writing and delivered in Person or by first class mail (registered or certified, return receipt requested), facsimile transmission or other electronic transmission or overnight air courier guaranteeing next day delivery, to the others’ address:
If to the Issuer and/or any Guarantor:
Sensata Technologies, Inc.
529 Pleasant Street
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Financial Officer
With a copy to:
Foley Hoag LLP
Seaport West
155 Seaport Boulevard
Boston, MA US 02210-2600
Attention: Malcolm G. Henderson
If to the Trustee:
The Bank of New York Mellon
Corporate Trust Division
240 Greenwich Street, 7th Floor East
New York, NY 10286
Facsimile No.: (212) 815-5366
Attention: Corporate Trust Division
The Issuer, any Guarantor or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.
All notices and communications to the Trustee or any Agent shall be deemed to have been duly given upon actual receipt thereof by such party. All other notices and communications (other than those sent to Holders) will be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder of a Global Note will be delivered to the Depositary in accordance with its customary procedures. Any notice or communication to a Holder of a Definitive Note will be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Failure to give a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders.
Except with respect to the Trustee and the Agents, if a notice or communication is given in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
In respect of this Indenture, the Trustee shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission; and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information. Each other party agrees to assume all risks arising out of the use of electronic methods, including any non-secure method, such as, but without limitation, by facsimile or electronic mail, to submit instructions, directions, reports, notices or other communications or information to the Trustee, including without limitation, the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties.
If the Issuer gives a notice or communication to Holders, it will give a copy to the Trustee and each Agent at the same time.
Section 12.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or the Notes. The Issuer, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
Section 12.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer or STBV to the Trustee to take or refrain from taking any action under this Indenture, the Issuer or STBV, as applicable, shall furnish to the Trustee:
(i)an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05 hereof) 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; provided, that such Officers’ Certificate shall not be required to be furnished to the Trustee in connection with the authentication and delivery of the Notes on the Issue Date; and
(ii)an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied; provided, that such Opinion of Counsel shall not be required to be furnished to the Trustee in connection with the authentication and delivery of the Notes on the Issue Date.
Section 12.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) must comply with the provisions of TIA § 314(e) and must include:
(i)a statement substantially to the effect that the Person making such certificate or opinion has read such covenant or condition;
(ii)a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii)a statement substantially to the effect that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
(iv)a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied; provided, however, that with respect to matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate or certificates of public officials.
Section 12.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders.
No director, officer, employee, incorporator or stockholder of the Issuer, STBV, the Parent, any other direct or indirect parent company of STBV or any Subsidiary of STBV, as such, will have any liability for any obligations of the Issuer or any Guarantor under any Notes, this Indenture, the Note Guarantees, 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 such Notes. The waiver may not be effective to waive liabilities under the federal securities laws, and it is the view of the Commission that such waiver is against public policy.
Section 12.08 Governing Law.
THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 12.09 Jurisdiction; Waiver of Jury Trial.
(a)Each of the Issuer and the Guarantors hereby consents to the non-exclusive jurisdiction of any court of the State of New York or any U.S. federal court, in each case, sitting in the Borough of Manhattan, The City of New York, New York, United States, and any appellate court from any thereof in any action or proceeding arising out of or related to the Notes, this Indenture or the Note Guarantees. Each of the Issuer and the Guarantors hereby appoints C T Corporation located at 111 Eighth Avenue, New York, New York 10011 as its authorized agent upon which service of process may be served in any action or proceeding brought in any court of the State of New York or any U.S. federal court sitting in the Borough of Manhattan, The City of New York in connection with this Indenture, the Notes or the Note Guarantees.
(b)EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 12.10 Waiver of Immunities.
To the extent that the Issuer or any Guarantor may in any jurisdiction claim for itself or its assets immunity from a suit, execution, attachment, whether in aid of execution, before judgment or otherwise, or other legal process in connection with and as set out in this Indenture, the Notes or the Note Guarantees and to the extent that in any jurisdiction there may be immunity attributed to the Issuer or the Guarantors or the Issuer’s or any Guarantor’s assets, whether or not claimed, the Issuer or any Guarantor, as applicable, irrevocably agrees for the benefit of the Holders not to claim, and irrevocably waives, the immunity to the full extent permitted by law.
Section 12.11 Currency Rate Indemnity.
The U.S. dollar is the sole currency of account and payment for all sums payable by the Issuer or any Guarantor under or in connection with this Indenture, the Notes and the Note Guarantees, including damages. Any amount with respect to this Indenture, the Notes and the Note Guarantees 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 or any Guarantor or otherwise by any Holder or by the Trustee, in respect of any sum expressed to be due to it from the Issuer or any Guarantor will only constitute a discharge to the Issuer or any Guarantor 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).
Section 12.12 Successors.
All agreements of the Issuer in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this Indenture will bind its successors. All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 10.04 hereof.
Section 12.13 Severability.
In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, then (to the extent permitted by applicable law) the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
Section 12.14 Counterpart Originals.
This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Indenture by facsimile or in electronic format shall be effective as delivery of a manually executed counterpart of this Indenture.
Section 12.15 Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
Dated as of August 17, 2020
SIGNATURES
SENSATA TECHNOLOGIES, INC., as Issuer
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: President and Chief Executive Officer
[Signature Page to Indenture]
BEI NORTH AMERICA LLC,
CRYDOM, INC.,
CUSTOM SENSORS & TECHNOLOGIES, INC.,
CUSTOM SENSORS & TECHNOLOGIES US CORPORATION,
CUSTOM SENSORS & TECHNOLOGIES US LLC,
KAVLICO CORPORATION,
NEWALL ELECTRONICS INC., each as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: President and Chief Executive Officer
STI HOLDCO, INC.,
SENSATA TECHNOLOGIES BULGARIA EOOD, each as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Director
SENSATA TECHNOLOGIES US, LLC,
SENSATA TECHNOLOGIES US II, LLC, each as Guarantor
By: /s/ Jeffrey Cote
Name: Jeffrey Cote
Title: Manager
[Signature Page to Indenture]
SENSATA TECHNOLOGIES BERMUDA LTD., as Guarantor
By: /s/ Melissa L. Mong
Name: Melissa L. Mong
Title: Director
[Signature Page to Indenture]
CDI NETHERLANDS B.V.,
as Guarantor
By: /s/ Paul Chawla
Name: Paul Chawla
Title: Director
[Signature Page to Indenture]
SENSATA TECHNOLOGIES HOLLAND B.V., as Guarantor
By: /s/ Serge Groenhuijzen
Name: Serge Groenhuijzen
Title: Director
[Signature Page to Indenture]
SENSATA TECHNOLOGIES US COOPERATIEF U.A.,
SENSATA TECHNOLOGIES B.V.,
SENSATA TECHNOLOGIES HOLDING COMPANY MEXICO, B.V., each as Guarantor
By: /s/ Gerrit H. Ensing
Name: Gerrit H. Ensing
Title: Director
[Signature Page to Indenture]
Signed by Steven Beringhause (name of director)
for an on behalf of /s/ Steven Beringhause
AUGUST UK HOLDCO LIMITED, Director
as Guarantor
[Signature Page to Indenture]
Signed by Jeffrey Cote (name of director)
for an on behalf of /s/ Jeffrey Cote
CUSTOM SENSORS & TECHNOLOGIES NEWCO LTD., Director
as Guarantor
Signed by Jeffrey Cote (name of director)
for an on behalf of /s/ Jeffrey Cote
SENSATA TECHNOLOGIES UK FINANCING CO. PLC, Director
as Guarantor
Signed by Jeffrey Cote (name of director)
for an on behalf of /s/ Jeffrey Cote
ST SCHRADER HOLDING COMPANY UK LIMITED, Director
as Guarantor
[Signature Page to Indenture]
SENSATA TECHNOLOGIES JAPAN LIMITED, as Guarantor
By: /s/ Song Changhwan
Name: Song Changhwan
Title: Representative Director
[Signature Page to Indenture]
ST AUGUST LUX INTERMEDIATE HOLDCO S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633 Senningerberg
Luxembourg R.C.S.: B 192214,
as Guarantor
By: /s/ Joseph Barberia
Name: Joseph Barberia
Title: Manager (Class A)
ST AUGUST LUX INTERMEDIATE HOLDCO S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633 Senningerberg
Luxembourg R.C.S.: B 192214,
as Guarantor
By: /s/ Paul Brogan
Name: Paul Brogan
Title: Manager (Class B)
[Signature Page to Indenture]
AUGUST LUX HOLDING COMPANY,
S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633 Senningerberg
Luxembourg R.C.S.: B 167704,
as Guarantor
By: /s/ Joseph Barberia
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST LUX HOLDING COMPANY,
S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633 Senningerberg
Luxembourg R.C.S.: B 167704,
as Guarantor
By: /s/ Paul Brogan
Name: Paul Brogan
Title: Manager (Class B)
[Signature Page to Indenture]
AUGUST LUXUK HOLDING COMPANY,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633 Senningerberg
Luxembourg R.C.S.: B 167757,
as Guarantor
By: /s/ Joseph Barberia
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST LUXUK HOLDING COMPANY,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633 Senningerberg
Luxembourg R.C.S.: B 167757,
as Guarantor
By: /s/ Paul Brogan
Name: Paul Brogan
Title: Manager (Class B)
[Signature Page to Indenture]
AUGUST BRAZIL HOLDING COMPANY,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633 Senningerberg
Luxembourg R.C.S.: B 168084,
as Guarantor
By: /s/ Joseph Barberia
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST BRAZIL HOLDING COMPANY,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633 Senningerberg
Luxembourg R.C.S.: B 168084,
as Guarantor
By: /s/ Paul Brogan
Name: Paul Brogan
Title: Manager (Class B)
[Signature Page to Indenture]
ST AUGUST LUX COMPANY S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633 Senningerberg
Luxembourg R.C.S.: B 192229,
as Guarantor
By: /s/ Joseph Barberia
Name: Joseph Barberia
Title: Manager (Class A)
ST AUGUST LUX COMPANY S.À R.L.,
Société à responsabilité limitée
Registered office: 6D, route de Trèves, L-2633 Senningerberg
Luxembourg R.C.S.: B 192229,
as Guarantor
By: /s/ Paul Brogan
Name: Paul Brogan
Title: Manager (Class B)
[Signature Page to Indenture]
THE BANK OF NEW YORK MELLON, as Trustee, Registrar and Paying Agent
By: /s/ Wanda Camacho
Name: Wanda Camacho
Title: Vice President
[Signature Page to Indenture]
EXHIBIT A
[Face of Note]
[Insert legends required by the Indenture]
[Signature Page to Indenture]
[Insert as appropriate:
144A CUSIP No.: 81728U AB0
144A ISIN: US81728UAB08
Reg S CUSIP No.: U81700 AB9
Reg S ISIN: USU81700AB94]
3.750% Senior Notes due 2031
No. [A][S]-[●] $
SENSATA TECHNOLOGIES, INC.
promises to pay to CEDE & CO. or registered assigns, the principal sum of __________________ DOLLARS [if the Note is a Global Note, add the following: (as revised by the Schedule of Increases and Decreases in Global Note, attached hereto)] on February 15, 2031.
Interest Payment Dates: February 15 and August 15, commencing February 15, 2021.
Additional provisions of this Note are set forth on the other side of this Note.
Record Dates: February 1 and August 1.
Dated: August 17, 2020
[Signature Page to Indenture]
SENSATA TECHNOLOGIES, INC.
By:
Name:
Title:
Dated:
[Signature Page to Indenture]
Dated:
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK MELLON, as Trustee
By:
Authorized Signatory
[Signature Page to Indenture]
[Reverse of Note]
3.750% Senior Notes due 2031
Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
(1) INTEREST. Sensata Technologies, Inc. (the “Issuer”), a Delaware corporation, promises to pay interest on the principal amount of this Note at 3.750% per annum from August 17, 2020 until maturity. The Issuer will pay interest, if any, semi-annually in arrears on February 15 and August 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from August 17, 2020, until the principal hereof is due. The first Interest Payment Date shall be February 15, 2021. The Issuer will pay interest on overdue principal at the rate borne by the Notes, and it shall pay interest on overdue installments of interest at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
(2) METHOD OF PAYMENT. The Issuer will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the February 1 or August 1 next preceding the Interest Payment Date (whether or not a Business Day), even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Issuer will pay principal, premium, if any, and interest on Definitive Notes at the office of the Paying Agent. Such payment will be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
(3) PAYING AGENT AND REGISTRAR. Initially, The Bank of New York Mellon, as the Trustee, will act as Paying Agent and Registrar. The Issuer may change any Paying Agent or Registrar without notice to any Holder. STBV or any of its Subsidiaries may act in any such capacity.
(4) INDENTURE. The Issuer issued the Notes under the Indenture dated as of August 17, 2020 (the “Indenture”) among the Issuer, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all the terms and provisions of the Indenture, and Holders are referred to the Indenture for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
The Notes are unsecured senior obligations of the Issuer. This Note is one of the Initial Notes referred to in the Indenture. The Notes include the Initial Notes and any Additional Notes issued in exchange for Initial Notes or Additional Notes issued pursuant to the Indenture. The Initial Notes and any Additional Notes are treated as a single class of securities under the Indenture. The Indenture imposes certain limitations on the ability of STBV and its Subsidiaries to, among other things, incur Indebtedness (other than the Issuer), create or incur Liens and enter into sale and lease-back transactions. The Indenture also imposes limitations on the ability of the Issuer and each Guarantor to consolidate or merge with or into any other Person or convey, transfer or lease all or substantially all of its property.
To Guarantee the due and punctual payment of the principal and interest on the Notes and all other amounts payable by the Issuer under the Indenture and the Notes when and as
[Signature Page to Indenture]
the same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Guarantors have, jointly and severally, unconditionally Guaranteed the obligations of the Issuer under the Notes on an unsecured senior basis pursuant to the terms of the Indenture.
(5) OPTIONAL REDEMPTION. Except pursuant to Sections 3.07(b) through Section 3.07(e) and 4.15(f) of the Indenture, the Notes will not be optionally redeemable by the Issuer; provided, however, the Issuer may acquire the Notes by means other than an optional redemption.
(a)At any time and from time to time prior to February 15, 2026, the Issuer may redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus the Applicable Premium, plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of Holders of record on the record date to receive interest due on the related Interest Payment Date).
(b)At any time and from time to time on or after February 15, 2026, the Issuer may redeem the Notes, in whole or in part, at the redemption prices (expressed as a percentage of principal amount) set forth below, plus accrued and unpaid interest, if any, to, but excluding, the redemption date:
| | | | | |
| Period Beginning February 15, | Price |
2026 | 101.875% |
2027 | 100.938% |
2028 and thereafter | 100.000% |
(c)At any time and from time to time prior to August 15, 2023, the Issuer may redeem up to 40% of the principal amount of the outstanding Notes (including Additional Notes, if any) with the net cash proceeds of one or more Equity Offerings at a redemption price (expressed as a percentage of principal amount) of 103.750%, plus accrued and unpaid interest, if any, to, but excluding, the redemption date; provided that (i) at least 60% of the aggregate principal amount of Notes issued on the Issue Date and any Additional Notes originally issued under the Indenture after the Issue Date remains outstanding immediately after each such redemption, and (ii) notice of any such redemption is given to the Holders within 90 days of the closing of each such Equity Offering.
(d)The Issuer may, at its option, redeem the Notes, in whole but not in part, at any time upon not less than 15 days’ nor more than 30 days’ notice to the Holders (which notice shall be irrevocable and given in accordance with Section 3.03 of the Indenture), at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the redemption date, premium, if any, and all Additional Amounts, if any, then due and which will become due on the date of redemption as a result of the redemption or otherwise, if the Issuer determines in good faith that the Issuer or any Guarantor is, or on the next date on which any amount would be payable in respect of the Notes, would be obligated to pay Additional Amounts in respect of the Notes pursuant to the terms and conditions thereof (but, in the case of a Guarantor, only if the payment giving rise to such requirement cannot be made by the Issuer or another Guarantor without the obligation to pay Additional Amounts), which the Issuer or such Guarantor, as the case may be, cannot avoid by the use of reasonable measures available to it (including, without limitation, making payment through a Paying Agent located in another jurisdiction), as a result of:
[Signature Page to Indenture]
(1) any change in, or amendment to, the laws or treaties (or any regulations, official guidance or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction affecting taxation which becomes effective on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction that arises after the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under the Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder); or
(2) any change in the official application, administration, or interpretation of the laws, treaties, regulations, official guidance or rulings of any Relevant Taxing Jurisdiction (including a holding, judgment, or order by a court of competent jurisdiction), on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction that arises after the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under the Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder).
Notwithstanding the foregoing, the Issuer may not redeem the Notes under this provision if a Relevant Taxing Jurisdiction changes and the Issuer is obligated to pay Additional Amounts as a result of a Change in Tax Law of such Relevant Taxing Jurisdiction which was officially announced at the time the latter became a Relevant Taxing Jurisdiction.
Notwithstanding the foregoing, no such notice of redemption will be given (i) earlier than 90 days prior to the earliest date on which the Issuer or any Guarantor, would be obliged to make such payment of Additional Amounts or withholding if a payment in respect of the Notes or the relevant Note Guarantee, as the case may be, were then due and (ii) unless at the time such notice is given, the obligation to pay Additional Amounts remains in effect.
(e) Except for redemption pursuant to Section 3.07(e) of the Indenture, notices of optional redemption will be given at least 30 but not more than 60 days before the redemption date to each Holder of Notes to be redeemed in accordance with Section 12.02 of the Indenture, except that redemption notices may be given more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture.
(6) MANDATORY REDEMPTION. The Issuer is not required to make any mandatory redemption or sinking fund payments with respect to the Notes.
(7) REPURCHASE AT THE OPTION OF HOLDER. If a Change of Control occurs, unless the Issuer at such time has given notice of redemption with respect to all outstanding Notes, each Holder will have the right to require the Issuer to repurchase all or any part (in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess thereof) of that Holder’s Notes pursuant to a change of control offer (the “Change of Control Offer”) on the terms set forth in the Indenture. In the Change of Control Offer, the Issuer will offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest on the Notes repurchased, to, but excluding, the Change of Control Payment Date. Within 30 days following any Change of Control, unless the Issuer at such time has given notice of redemption with respect to all outstanding Notes, the Issuer will give notice to each Holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is given.
[Signature Page to Indenture]
(8) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in minimum denominations of $2,000 (the “Minimum Dollar Denomination”) and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuer need not register the transfer of or exchange any Note selected for redemption in whole or in part or subject to purchase in a Change of Control Offer, except the unredeemed or unpurchased portion of any Note being redeemed or purchased in part. Also, the Issuer need not exchange or register the transfer of any Notes for a period of 15 days before the day the Issuer gives notice of redemption of the Notes or makes a Change of Control Offer and ending at the close of business on the day notice of redemption is given or the Change of Control Offer is made.
(9) PERSONS DEEMED OWNERS. The registered Holder of a Note shall be treated as its owner for all purposes.
(10) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent of the Issuer and Holders of a majority in aggregate principal amount of the then outstanding Notes, including Additional Notes, if any, voting as a single class, and any existing Default or Event or Default or compliance with any provision of the Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes, including Additional Notes, if any, voting as a single class. Without the consent of any Holder of a Note, the Indenture, the Notes or the Note Guarantees may be amended or supplemented:
(i) to cure any ambiguity, mistake, defect or inconsistency;
(ii) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(iii) to provide for the assumption by a Successor Company or a successor company of a Guarantor, as applicable, of the Issuer’s or such Guarantor’s obligations under the Indenture;
(iv) to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights hereunder of any Holder;
(v) to secure the Notes;
(vi) to add a Note Guarantee;
(vii) to conform the text of the Indenture or the Notes to any provision of the “Description of Notes” included in the Offering Memorandum relating to the Notes;
(viii) to provide for the issuance of Additional Notes in accordance with the provisions set forth in the Indenture; or
(ix) to release a Guarantor from its Note Guarantee; provided that such release is in accordance with the applicable provisions of the Indenture;
[Signature Page to Indenture]
provided, that the Issuer has delivered to the Trustee an Opinion of Counsel and an Officers’ Certificate, each stating that such amendment or supplement complies with the provisions of Section 9.01 of the Indenture.
(11) DEFAULTS AND REMEDIES. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency with respect to the Issuer, STBV, any Subsidiary of STBV that is a Significant Subsidiary or any group of Subsidiaries of STBV that, taken together, would constitute a Significant Subsidiary of STBV, all outstanding Notes will become due and payable immediately without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Holders of a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may, on behalf of the Holders of all of the Notes, rescind an acceleration or waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of the principal of, premium, if any, or interest on the Notes or a covenant or provision of the Indenture which cannot be modified or amended without the consent of the Holder of each outstanding Note affected. STBV is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and STBV is required, upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default and the remedial action STBV proposes to take in connection therewith.
(12) DISCHARGE AND DEFEASANCE. Subject to certain conditions, the Issuer at any time may terminate some or all of its obligations under the Notes, the Note Guarantees and the Indenture if the Issuer deposits with the Trustee money or U.S. Government Securities for the payment of principal of and interest on the Notes to redemption or maturity, as the case may be.
(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for STBV or its Affiliates, and may otherwise deal with STBV or its Affiliates, as if it were not the Trustee.
(14) NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Issuer, STBV, the Parent, any other direct or indirect parent entity of STBV or any Subsidiary of STBV, as such, will have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
(15) AUTHENTICATION. This Note will not be valid until authenticated by the manual or electronic signature of the Trustee or an authenticating agent.
(16) ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(17) CUSIP NUMBERS, ISINS. The Issuer has caused CUSIP numbers and ISINs to be printed on the Notes, and the Trustee may use CUSIP numbers and ISINs in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such
[Signature Page to Indenture]
numbers either as printed on the Notes or as contained in any notice of redemption, and reliance may be placed only on the other identification numbers placed thereon.
(18) GOVERNING LAW. THE LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES.
(19) JURISDICTION; WAIVER OF JURY TRIAL. (a) Each of the Issuer and the Guarantors has consented to the non-exclusive jurisdiction of any court of the State of New York or any U.S. federal court, in each case, sitting in the Borough of Manhattan, The City of New York, New York, United States, and any appellate court from any thereof in any action or proceeding arising out of or related to this Note, the Indenture or the Note Guarantees. Each of the Issuer and the Guarantors has appointed C T Corporation located at 111 8th Avenue, New York, New York 10011 as its authorized agent upon which service of process may be served in any action or proceeding brought in any court of the State of New York or any U.S. federal court sitting in the Borough of Manhattan, The City of New York in connection with the Indenture, this Note or the Note Guarantees.
(b) EACH OF THE PARTIES TO THE INDENTURE HAS IRREVOCABLY WAIVED ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE INDENTURE, THIS NOTE, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(20) WAIVER OF IMMUNITIES. To the extent that the Issuer or any Guarantor may in any jurisdiction claim for itself or its assets immunity from a suit, execution, attachment, whether in aid of execution, before judgment or otherwise, or other legal process in connection with and as set out in the Indenture, this Note or the Note Guarantees and to the extent that in any jurisdiction there may be immunity attributed to the Issuer or the Guarantors or the Issuer’s or any Guarantor’s assets, whether or not claimed, the Issuer or any Guarantor, as applicable, has irrevocably agreed for the benefit of the Holders not to claim, and irrevocably waived, the immunity to the full extent permitted by law.
(21) CURRENCY RATE INDEMNITY. The U.S. dollar is the sole currency of account and payment for all sums payable by the Issuer or any Guarantor under or in connection with the Notes, including damages. Any amount with respect to the Notes or the Note Guarantee 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 or any Guarantor or otherwise by any Holder or by the Trustee, in respect of any sum expressed to be due to it from the Issuer or any Guarantor will only constitute a discharge to the Issuer or any Guarantor 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).
The Issuer will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:
Sensata Technologies Inc.
529 Pleasant Street
Attleboro, Massachusetts
[Signature Page to Indenture]
Facsimile No.: (508) 236-3800
Attention: Chief Financial Officer
[Signature Page to Indenture]
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
(Insert assignee’s legal name)
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date:
Your Signature:
(Sign exactly as your name
appears on the face of this Note)
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
[Signature Page to Indenture]
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.15 of the Indenture, check the box below:
Section 4.15
If you want to elect to have only part of the Note purchased by the Issuer pursuant to Section 4.15 of the Indenture, state the amount you elect to have purchased:
$
Date:
Your Signature:
(Sign exactly as your name
appears on the face of this Note)
Tax Identification No.:
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
[Signature Page to Indenture]
SCHEDULE OF INCREASES AND DECREASES OF INTERESTS IN THE GLOBAL NOTE
[To be inserted for 144A Global Note]
The following transfer or exchange of a part of this 144A Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this 144A Global Note, or to reflect a redemption or repurchase of the Notes and cancellation, have been made:
| | | | | | | | | | | | | | |
| Date of Increase or Decrease | Amount of decrease in Principal Amount at Maturity of this Global Note | Amount of increase in Principal Amount at Maturity of this Global Note | Principal Amount at Maturity of this Global Note following such decrease
(or increase) | Signature of authorized officer of Trustee or Custodian |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
[To be inserted for Regulation S Global Note]
The following transfer or exchange of a part of this Regulation S Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Regulation S Global Note, or to reflect a redemption or repurchase of the Notes and cancellation, have been made:
| | | | | | | | | | | | | | |
| Date of Increase or Decrease | Amount of decrease in Principal Amount at Maturity of this Global Note | Amount of increase in Principal Amount at Maturity of this Global Note | Principal Amount at Maturity of this Global Note following such decrease
(or increase) | Signature of authorized officer of Trustee or Custodian |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
[Signature Page to Indenture]
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Sensata Technologies, Inc.
529 Pleasant Street
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Financial Officer
The Bank of New York Mellon
Corporate Trust Division
240 Greenwich Street, 7th Floor East
New York, NY 10286
Facsimile No.: (212) 815-5366
Attention: Corporate Trust Division
Re: 3.750% Senior Notes due 2031
Reference is hereby made to the Indenture, dated as of August 17, 2020 (the “Indenture”), among Sensata Technologies, Inc., a Delaware corporation, as issuer (the “Issuer”), the Guarantors party thereto and The Bank of New York Mellon, a New York banking corporation, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
___________________, (the “Transferor”) owns and proposes to transfer the Note[s] or interests in such Note[s] specified in Annex A hereto, in the principal amount of $___________ in such Note[s] or interests (the “Transfer”), to ___________________________ (the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1.__ Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.
2.__ Check if Transferee will take delivery of a beneficial interest in a Legended Regulation S Global Note or a Restricted Definitive Note pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Legended Regulation S Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.
3.__ Check and complete if Transferee will take delivery of a beneficial interest in a Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):
(a)__ such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;
or
(b)__ such Transfer is being effected to Sensata Technologies B.V. or a subsidiary thereof;
or
(c)__ such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act;
or
(d)__ such Transfer is being effected to an Institutional Accredited Investor and pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Note or Restricted Definitive Notes and the requirements of the exemption claimed, which certification is supported by if such Transfer is in respect of a principal amount of Notes at the time of transfer of less than $100,000, an opinion of counsel acceptable to the Issuer provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the effect that such Transfer is in compliance with the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Notes and in the Indenture and the Securities Act.
4.__ Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a)__ Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
(b)__ Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States, (ii) the Transfer is being made after the expiration of the Restricted Period, and (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
(c)__ Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
| | | | | |
| |
| [Insert Name of Transferor] |
| By: |
| Name:
Title: |
| |
| Dated: | |
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) __ a beneficial interest in the:
(i) __ 144A Global Note (CUSIP _________), or
(ii) __ Regulation S Global Note (CUSIP _________); or
(b) __ a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) __ a beneficial interest in the:
(i) __ 144A Global Note (CUSIP _________), or
(ii) __ Regulation S Global Note (CUSIP _________), or
(iii) __ Unrestricted Global Note (CUSIP _________); or
(b) __ a Restricted Definitive Note; or
(c) __ an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Sensata Technologies, Inc.
529 Pleasant Street
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Financial Officer
The Bank of New York Mellon
Corporate Trust Division
240 Greenwich Street, 7th Floor East
New York, NY 10286
Facsimile No.: (212) 815-5366
Attention: Corporate Trust Division
Re: 3.750% Senior Notes due 2031
Reference is hereby made to the Indenture, dated as of August 17, 2020 (the “Indenture”), among Sensata Technologies, Inc., a Delaware corporation, as issuer (the “Issuer”), the Guarantors party thereto and The Bank of New York Mellon, a New York banking corporation, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
__________________________, (the “Owner”) owns and proposes to exchange the Note[s] or interests in such Note[s] specified herein, in the principal amount of $____________ (CUSIP ____________; ISIN ____________) in such Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note
(a)__ Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(b)__ Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend
are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(c)__ Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(d)__ Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes
(a)__ Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.
(b)__ Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE] ____ 144A Global Note/ ____ Regulation S Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
| | | | | |
| |
| [Insert Name of Transferor] |
| By: |
| Name:
Title: |
| |
| Dated: | |
EXHIBIT D
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally Guaranteed, to the extent set forth in and subject to the provisions in the Indenture dated as of August 17, 2020, (as amended, modified or supplemented from time to time, the “Indenture”) among Sensata Technologies, Inc, a Delaware corporation, the guarantors party thereto, and The Bank of New York Mellon, a New York banking corporation, as trustee (the “Trustee”), (a) prompt payment of the principal of, premium, if any, and accrued and unpaid interest and defaulted interest, if any, on the Notes when due, whether at maturity, by acceleration, redemption or otherwise, and the prompt payment of interest on overdue principal, premium, if any, and interest and defaulted interest, if any, on the Notes (pursuant to Section 2.12 of the Indenture), if lawful (subject in all cases to any applicable grace periods provided in the Indenture and the Notes) when due, and all other obligations of the Issuer to the Holders or the Trustee under the Indenture and the Notes will be promptly paid in full, all in accordance with the terms of the Indenture and the Notes and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same will be promptly paid in full when due in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the Note Guarantee and the Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee (including Sections 12.08 and 12.09 of the Indenture on Governing Law and Jurisdiction, respectively). Each Holder of a Note, by accepting the same, agrees to and shall be bound by such provisions. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS HEREOF, each Guarantor has caused this Notation of Guarantee to be signed manually, by facsimile or electronically by its duly authorized officer.
[NAME OF GUARANTOR]
EXHIBIT E
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of ________________, 20___, among __________________ (the “New Guarantor”), a subsidiary of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (“STBV”), Sensata Technologies, Inc., a Delaware corporation (the “Issuer”), and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Issuer and certain Subsidiaries of STBV have heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified, the “Indenture”), dated as of August 17, 2020 providing for the issuance of 3.750% Senior Notes due 2031 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantor shall execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantor shall unconditionally Guarantee all of the Issuer’s obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and the Issuer are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the 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. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Issuer, STBV, the Parent, any other direct or indirect parent entity of STBV or any Subsidiary of STBV, as such, will have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to the New Guarantor shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. JURISDICTION; WAIVER OF JURY TRIAL. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantee of the New Guarantor or this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
[NEW GUARANTOR]
By:
Name:
Title:
SENSATA TECHNOLOGIES, INC.
By:
Name:
Title:
THE BANK OF NEW YORK MELLON as Trustee
By:
Name:
Title:
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of May 24, 2021, among GIGAVAC, LLC (the “New US Guarantor”), a subsidiary of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (“STBV”), Sensata Technologies Malta Ltd (the “New Maltese Guarantor”), a subsidiary of STBV, Sensata Malta Holding Ltd (the “New Maltese Holdco Guarantor” and, together with the New Maltese Guarantor and the New US Guarantor, the “New Guarantors”), a subsidiary of STBV, Sensata Technologies, Inc., a Delaware corporation (the “Issuer”), and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Issuer and certain other Subsidiaries of STBV have heretofore executed and delivered to the Trustee an indenture, dated as of August 17, 2020 (as amended, supplemented or otherwise modified, the “Indenture”), providing for the issuance by the Issuer of 3.750% Senior Notes due 2031 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantors shall execute and deliver to the Trustee a supplemental indenture pursuant to which each New Guarantor shall unconditionally Guarantee all of the Issuer’s obligations under the Notes and the Indenture on the terms and conditions set forth herein and therein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and the Issuer are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, each 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. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture, and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Issuer, STBV, the Parent, any other direct or indirect parent entity of STBV or any Subsidiary of STBV, as such, will have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to each New Guarantor shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. JURISDICTION; WAIVER OF JURY TRIAL. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantee of each New Guarantor or this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
GIGAVAC, LLC, as the New US Guarantor
By: Sensata Technologies, Inc., its sole member
By: /s/ Frank E. DeVita
Name: Frank E. DeVita
Title: Treasurer
SENSATA TECHNOLOGIES MALTA LTD, as the New Maltese Guarantor
By: /s/ Shannon M. Votava
Name: Shannon M. Votava, Esq.
Title: Director
SENSATA MALTA HOLDING LTD, as the New Maltese Subsidiary Guarantor
By: /s/ Shannon M. Votava
Name: Shannon M. Votava, Esq.
Title: Director
SENSATA TECHNOLOGIES, INC., as the Issuer
By: /s/ Paul Vasington
Name: Paul Vasington
Title: EVP and Chief Financial Officer
THE BANK OF NEW YORK MELLON, as Trustee
By:/s/ Wanda Camacho
Name: Wanda Camacho
Title: Vice President
[Signature Page to Supplemental Indenture – 2031 Notes]
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of October 24, 2022, among Dynapower Company LLC, a Delaware limited liability company (“Dynapower”) and an indirect subsidiary of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (“STBV”), Xirgo Technologies, LLC, a Delaware limited liability company (“Xirgo”) and an indirect subsidiary of STBV, SmartWitness USA, LLC, an Illinois limited liability company (“SmartWitness” and, together with Dynapower and Xirgo, the “New Guarantors” and each a “New Guarantor”) and an indirect subsidiary of STBV, Sensata Technologies, Inc., a Delaware corporation (the “Issuer”), and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Issuer, STBV and certain other Subsidiaries of STBV have heretofore executed and delivered to the Trustee an indenture, dated as of August 17, 2020 (as amended, supplemented or otherwise modified, the “Indenture”), providing for the issuance by the Issuer of 3.750% Senior Notes due 2031 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantors shall execute and deliver to the Trustee a supplemental indenture pursuant to which each New Guarantor shall unconditionally Guarantee all of the Issuer’s obligations under the Notes and the Indenture on the terms and conditions set forth herein and therein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and the Issuer are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, each 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. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture, and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Issuer, STBV, the Parent, any other direct or indirect parent entity of STBV or any Subsidiary of STBV, as such, will have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Indenture or the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to each New Guarantor shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. JURISDICTION; WAIVER OF JURY TRIAL. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantee of each New Guarantor or this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
DYNAPOWER COMPANY LLC, as a New Guarantor
By: DP Acquisition Corporation, its sole member
By: /s/ Frank E. DeVita__________________
Name: Frank E. DeVita
Title: Treasurer
XIRGO TECHNOLOGIES, LLC, as a New Guarantor
By: Xirgo Technologies Intermediate Holdings,
LLC, its sole member
By: Sensata Technologies, Inc., its managing
member
By: /s/ Frank E. DeVita__________________
Name: Frank E. DeVita
Title: Treasurer
SMARTWITNESS USA, LLC, as a New Guarantor
By: SmartWitness Holdings, Inc., its sole member
By: /s/ Frank E. DeVita__________________
Name: Frank E. DeVita
Title: Treasurer
SENSATA TECHNOLOGIES, INC., as the Issuer
By: /s/ Frank E. DeVita__________________
Name: Frank E. DeVita
Title: Treasurer
[Signature Page to Supplemental Indenture - 2031 Notes]
THE BANK OF NEW YORK MELLON, as Trustee
By: /s/ Teresa H. Wyszomierski______________
Name: Teresa H. Wyszomierski
Title: Vice President
[Signature Page to Supplemental Indenture - 2031 Notes]
SENSATA TECHNOLOGIES B.V.
AND
THE GUARANTORS NAMED HEREIN
$750,000,000
4.000% SENIOR NOTES DUE 2029
____________________________________
INDENTURE
Dated as of March 29, 2021
____________________________________
THE BANK OF NEW YORK MELLON
Trustee
____________________________________
TABLE OF CONTENTS
Page
| | | | | | | | |
| ARTICLE 1 |
| DEFINITIONS AND INCORPORATION BY REFERENCE |
| Section 1.01. | Definitions. | 1 |
| Section 1.02. | Other Definitions. | 22 |
| Section 1.03. | Incorporation by Reference of Certain Provisions and Defined Terms in the Trust Indenture Act. | 22 |
| Section 1.04. | Rules of Construction. | 23 |
| | |
| ARTICLE 2 |
| THE NOTES |
| Section 2.01. | Form and Dating. | 24 |
| Section 2.02. | Execution and Authentication. | 25 |
| Section 2.03. | Agents. | 26 |
| Section 2.04. | Paying Agent to Hold Money in Trust. | 26 |
| Section 2.05. | Holder Lists. | 26 |
| Section 2.06. | Transfer and Exchange. | 27 |
| Section 2.07. | Replacement Notes. | 39 |
| Section 2.08. | Outstanding Notes. | 39 |
| Section 2.09. | Treasury Notes. | 40 |
| Section 2.10. | Temporary Notes. | 40 |
| Section 2.11. | Cancellation. | 40 |
| Section 2.12. | Defaulted Interest. | 40 |
| Section 2.13. | CUSIP Numbers and ISIN Numbers. | 40 |
| | |
| ARTICLE 3 |
| REDEMPTION AND PREPAYMENT |
| Section 3.01. | Notices to Trustee. | 41 |
| Section 3.02. | Selection of Notes to Be Redeemed. | 41 |
| Section 3.03. | Notice of Optional Redemption. | 42 |
| Section 3.04. | Effect of Notice of Redemption. | 42 |
| Section 3.05. | Deposit of Redemption Price. | 42 |
| Section 3.06. | Notes Redeemed in Part. | 43 |
| Section 3.07. | Optional Redemption. | 43 |
| | |
| | | | | | | | |
| ARTICLE 4 |
| COVENANTS |
| Section 4.01. | Payment of Notes. | 45 |
| Section 4.02. | Maintenance of Office or Agency. | 49 |
| Section 4.03. | Reports. | 49 |
| Section 4.04. | Compliance Certificate. | 51 |
| Section 4.05. | Corporate Existence. | 51 |
| Section 4.06. | [Intentionally Omitted]. | 52 |
| Section 4.07. | [Intentionally Omitted]. | 52 |
| Section 4.08. | Limitation on Sale and Lease‑Back Transactions. | 52 |
| Section 4.09. | Limitation on Subsidiary Debt. | 52 |
| Section 4.10. | [Intentionally Omitted]. | 55 |
| Section 4.11. | [Intentionally Omitted]. | 55 |
| Section 4.12. | Limitation on Liens. | 55 |
| Section 4.13. | Business Activities. | 55 |
| Section 4.14. | Payment of Taxes and Other Claims. | 55 |
| Section 4.15. | Offer to Repurchase upon Change of Control. | 56 |
| Section 4.16. | Payments for Consent. | 57 |
| Section 4.17. | Additional Guarantees. | 57 |
| Section 4.18. | [Intentionally Omitted]. | 57 |
| Section 4.19. | Suspension of Guarantees Upon Change in Ratings. | 57 |
| Section 4.20. | Compliance with Laws. | 58 |
| Section 4.21. | Waiver of Stay, Extension or Usury Laws. | 58 |
| | |
| ARTICLE 5 |
| SUCCESSORS |
| Section 5.01. | Merger, Consolidation, or Sale of Assets. | 58 |
| | |
| ARTICLE 6 |
| DEFAULTS AND REMEDIES |
| Section 6.01. | Events of Default. | 60 |
| Section 6.02. | Acceleration. | 62 |
| Section 6.03. | Other Remedies. | 64 |
| Section 6.04. | Waiver of Past Defaults. | 65 |
| Section 6.05. | Control by Majority. | 65 |
| Section 6.06. | Limitation on Suits. | 65 |
| Section 6.07. | Rights of Holders of Notes to Receive Payment. | 66 |
| Section 6.08. | Collection Suit by Trustee. | 66 |
| Section 6.09. | Trustee May File Proofs of Claim. | 66 |
| Section 6.10. | Priorities. | 66 |
| | | | | | | | |
| Section 6.11. | Undertaking for Costs. | 67 |
| | |
| ARTICLE 7 |
| TRUSTEE |
| Section 7.01. | Duties of Trustee. | 67 |
| Section 7.02. | Rights of Trustee. | 68 |
| Section 7.03. | Individual Rights of Trustee. | 69 |
| Section 7.04. | Trustee’s Disclaimer. | 69 |
| Section 7.05. | Notice of Defaults. | 70 |
| Section 7.06. | Instructions Using Electronic Means. | 70 |
| Section 7.07. | Compensation and Indemnity. | 71 |
| Section 7.08. | Replacement of Trustee. | 71 |
| Section 7.09. | Successor Trustee by Merger, Etc. | 72 |
| Section 7.10. | Eligibility; Disqualification. | 72 |
| Section 7.11. | Preferential Collection of Claims Against the Issuer. | 72 |
| | |
| ARTICLE 8 |
| LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
| Section 8.01. | Option to Effect Legal Defeasance or Covenant Defeasance. | 73 |
| Section 8.02. | Legal Defeasance and Discharge. | 73 |
| Section 8.03. | Covenant Defeasance. | 73 |
| Section 8.04. | Conditions to Legal or Covenant Defeasance. | 74 |
| Section 8.05. | Deposited Money and U.S. Government Securities to Be Held in Trust; Other Miscellaneous Provisions. | 75 |
| Section 8.06. | Repayment to the Issuer. | 76 |
| Section 8.07. | Reinstatement. | 76 |
| | |
| ARTICLE 9 |
| AMENDMENT, SUPPLEMENT AND WAIVER |
| Section 9.01. | Without Consent of Holders of Notes. | 76 |
| Section 9.02. | With Consent of Holders of Notes. | 77 |
| Section 9.03. | [Intentionally Omitted]. | 78 |
| Section 9.04. | Revocation and Effect of Consents. | 78 |
| Section 9.05. | Notation on or Exchange of Notes. | 79 |
| Section 9.06. | Trustee to Sign Amendments, Etc. | 79 |
| | |
| | | | | | | | |
| ARTICLE 10 |
| GUARANTEES |
| Section 10.01. | Guarantee. | 79 |
| Section 10.02. | Limitation on Guarantor Liability. | 80 |
| Section 10.03. | Execution and Delivery of Guarantee. | 81 |
| Section 10.04. | Guarantors May Consolidate, Etc., on Certain Terms. | 81 |
| Section 10.05. | Releases. | 82 |
| | |
| ARTICLE 11 |
| SATISFACTION AND DISCHARGE |
| Section 11.01. | Satisfaction and Discharge. | 82 |
| Section 11.02. | Application of Trust Money. | 83 |
| | |
| ARTICLE 12 |
| MISCELLANEOUS |
| Section 12.01. | [Intentionally Omitted]. | 84 |
| Section 12.02. | Notices. | 84 |
| Section 12.03. | Communication by Holders of Notes with Other Holders of Notes. | 85 |
| Section 12.04. | Certificate and Opinion as to Conditions Precedent. | 85 |
| Section 12.05. | Statements Required in Certificate or Opinion. | 86 |
| Section 12.06. | Rules by Trustee and Agents. | 86 |
| Section 12.07. | No Personal Liability of Directors, Officers, Employees and Stockholders. | 86 |
| Section 12.08. | Governing Law. | 86 |
| Section 12.09. | Jurisdiction; Waiver of Jury Trial. | 86 |
| Section 12.10. | Waiver of Immunities. | 87 |
| Section 12.11. | Currency Rate Indemnity. | 87 |
| Section 12.12. | Successors. | 87 |
| Section 12.13. | Severability. | 87 |
| Section 12.14. | Counterpart Originals. | 87 |
| Section 12.15. | Table of Contents, Headings, Etc. | 88 |
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF NOTATION OF GUARANTEE
Exhibit E FORM OF SUPPLEMENTAL INDENTURE
INDENTURE dated as of March 29, 2021 among Sensata Technologies B.V., a private company with limited liability incorporated under Dutch law (the “Issuer”), the Guarantors (as defined herein) and The Bank of New York Mellon, a New York banking corporation, as Trustee. The Issuer is an indirect wholly owned subsidiary of Sensata Technologies Holding plc (“Parent”) on the Issue Date.
The Issuer, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined herein) of (a) the $750,000,000 aggregate principal amount of the Issuer’s 4.000% Senior Notes due 2029 (the “Initial Notes”) and (b) any Additional Notes (as defined herein) that may be issued after the date hereof (all such securities in clauses (a) and (b) being referred to collectively as the “Notes”):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
“144A Global Note” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will initially be issued in a denomination equal to the outstanding principal amount at maturity of the Notes initially sold in reliance on Rule 144A.
“2023 Notes” means the $500,000,000 aggregate principal amount of 4.875% Senior Notes due 2023 issued by the Issuer and Guaranteed by certain of the Issuer’s Subsidiaries.
“2024 Notes” means the $400,000,000 aggregate principal amount of 5.625% Senior Notes due 2024 issued by the Issuer and Guaranteed by certain of the Issuer’s Subsidiaries.
“2025 Notes” means the $700,000,000 aggregate principal amount of 5.000% Senior Notes due 2025 issued by the Issuer and Guaranteed by certain of the Issuer’s Subsidiaries.
“2030 Notes” means the $450,000,000 aggregate principal amount of 4.375% Senior Notes due 2030 issued by STI and Guaranteed by the Issuer and certain of its Subsidiaries.
“2031 Notes” means the $750,000,000 aggregate principal amount of 3.750% Senior Notes due 2031 issued by STI and Guaranteed by the Issuer and certain of its Subsidiaries.
“Additional Notes” means additional Notes (other than the Initial Notes) in an unlimited principal amount issued under this Indenture after the Issue Date in accordance with Sections 2.02 and 4.09 hereof, as part of the same series as the Initial Notes.
“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” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), 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.
“Agent” means any Registrar, co-registrar, Paying Agent, transfer agent, additional paying agent or other agent appointed hereunder.
“Aggregate Debt” means the sum of the following as of the date of determination: (1) the sum of the then outstanding aggregate principal amount of (a) the Indebtedness of the Issuer and its Subsidiaries incurred after the Issue Date and secured by Liens not permitted by Section 4.12(a) and (b) Indebtedness of the Issuer and its Subsidiaries secured by a Lien under the Credit Agreement that is outstanding on the Issue Date less the amount of such Indebtedness that has subsequently been repaid; (2) the then outstanding aggregate principal amount of all Subsidiary Debt incurred after the Issue Date and not permitted by Section 4.09(b); provided that any such Subsidiary Debt will be excluded from this clause (2) to the extent that such Subsidiary Debt is included in clause (1) or (3) of this definition; and (3) the then existing Attributable Liens of the Issuer and its Subsidiaries in respect of sale and lease-back transactions entered into after the Issue Date pursuant to Section 4.08(b); provided that any such Attributable Liens will be excluded from this clause (3) to the extent that the Indebtedness relating thereto is included in clause (1) or (2) of this definition.
“Applicable Premium” means, with respect to any Note on any redemption date and as calculated by the Issuer, the greater of:
(1) 1.0% of the principal amount of such Note; and
(2) the excess, if any, of (a) the present value at such redemption date of (i) the redemption price of such Note that would apply if such Note were redeemed on April 15, 2024 (such redemption price (expressed in percentage of principal amount) being set forth in the table appearing in Section 3.07(c) hereof), plus (ii) all remaining scheduled payments of interest due on such Note to and including April 15, 2024 (excluding accrued but unpaid interest, if any, to, but excluding, the redemption date), with respect to each of subclause (i) and (ii), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over (b) the principal amount of such Note.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the relevant Depositary that apply to such transfer or exchange.
“Attributable Liens” means in connection with a sale and lease-back transaction the lesser of: (1) the fair market value of the assets subject to such transaction, as determined in good faith by the Issuer’s Board of Directors; and (2) the present value (discounted at a rate of 10% per annum compounded monthly) of the obligations of the lessee for rental payments during the shorter of the term of the related lease or the period through the first date on which the Issuer or the applicable Subsidiary may terminate the lease.
“Bankruptcy Law” means (i) Title 11, United States Code or any similar U.S. federal or state law for the relief of debtors or the administration or liquidation of debtors’ estates for the benefit of their creditors, (ii) the Dutch Bankruptcy Law or any similar Dutch federal or state law for the relief of debtors or the administration or liquidation of debtors’ estates for the benefit of their creditors and (iii) any other similar federal or local law for the relief of debtors or
the administration or liquidation of debtors’ estates for the benefit of their creditors in any other applicable jurisdiction, now or hereinafter in effect.
“Beneficial Owner” or “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” will 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,” “Beneficially Owned” and “Beneficial Ownership” 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 having only one general partner, the board of directors of the general partner of the partnership;
(3) with respect to a limited liability company, the conseil de gérance, the conseil d’administration, the managing member or members or any controlling committee of managing members or other governing body thereof; and
(4) with respect to any other Person, the board or committee of such Person serving a similar function.
“Business Day” means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York are authorized or required by law to close.
“Capital Lease” 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 such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP (except for temporary treatment of construction related expenditures under ASC 840-40-15-5, which will ultimately be treated as operating leases upon a sale lease-back transaction).
“Capital Stock” means:
(1) in the case of a corporation, capital stock, shares or share capital;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock;
(3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
(4) 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.
“Cash Equivalents” means any of the following:
(1) readily marketable obligations issued or directly and fully guaranteed or insured by the United States, any state, commonwealth or territory of the United States or any agency or instrumentality thereof, having (i) one of the three highest ratings from either Moody’s or S&P and (ii) maturities of not more than two years from the date of acquisition thereof; provided that the full faith and credit of the United States is pledged in support thereof;
(2) time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) is a lender under the Credit Agreement or (ii)(A) is organized under the laws of the United States, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof, the District of Columbia or the Commonwealth of Puerto Rico and is a member of the Federal Reserve System and (B) has combined capital and surplus of at least $250,000,000 (any such bank in the foregoing clauses (i) or (ii) being an “Approved Domestic Bank”), in each case with maturities of not more than one year from the date of acquisition thereof;
(3) commercial paper and variable or fixed rate notes issued by an Approved Domestic Bank (or by the parent company thereof) or any variable rate note issued by, or guaranteed by a domestic corporation rated “A-2” (or the equivalent thereof) or better by S&P or “P-2” (or the equivalent thereof) or better by Moody’s, in each case with maturities of not more than one year from the date of acquisition thereof;
(4) repurchase agreements entered into by any Person with a bank or trust company or recognized securities dealer (including any lender under the Credit Agreement), in each case, having capital and surplus in excess of $250,000,000 for direct obligations issued by or fully guaranteed or insured by the government or any agency or instrumentality of the United States;
(5) investments, classified in accordance with GAAP as current assets of the Issuer or any of its Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions having capital of at least $250,000,000 and the portfolios of which are limited such that 95% of such investments are of the character, quality and maturity described in clauses (1), (2), (3), or (4) of this definition;
(6) solely with respect to the Issuer and any Foreign Subsidiary, non-U.S. Dollar denominated (i) certificates of deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Person maintains its chief executive office and principal place of business, provided such country is a member of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least “A-2” or the equivalent thereof or from Moody’s is at least “P-2” or the equivalent thereof (any such bank being an “Approved Foreign Bank”) and maturing within one year of the date of acquisition and (ii) equivalents of demand deposit accounts which are maintained with an Approved Foreign Bank; and
(7) readily marketable obligations issued or directly and fully guaranteed or insured by the government or any agency or instrumentality of the United Kingdom, the Netherlands or any member nation of the European Union whose legal tender is the euro and which are denominated in euro or any other foreign currency comparable in credit quality and tenor to those referred to above and customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Subsidiary organized in such jurisdiction, having (i) one of the three highest ratings from either Moody’s or S&P and (ii) maturities of not more than one year from the date of acquisition thereof; provided that the full faith and credit of the United Kingdom, the Netherlands or any such member nation of the European Union is pledged in support thereof.
“Change of Control” means the occurrence of any of the following:
(1) the sale, lease, transfer or other conveyance, in one or a series of related transactions, of all or substantially all of the assets of the Issuer and its Subsidiaries, taken as a whole, to any Person; or
(2) the Issuer becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Issuer or any entity of which the Issuer is a Subsidiary; provided that so long as the Issuer is a Subsidiary of Parent, no Person or group shall be deemed to be or become a beneficial owner, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Issuer or any entity of which the Issuer is a Subsidiary, as applicable, unless such Person or group shall be or become, directly or indirectly, a beneficial owner of more than 50% of the total voting power of the Voting Stock of Parent.
“Clearstream” means Clearstream Banking S.A. and any successor thereto.
“Code” means the United States Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to the Code are to the Code, as in effect on the Issue Date, and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.
“Commission” means the U.S. Securities and Exchange Commission.
“Consolidated Depreciation and Amortization Expense” means, with respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees, and other non-cash charges (excluding any non-cash item that represents an accrual or reserve for a cash expenditure for a future period) of such Person and its Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.
“Consolidated Interest Expense” means, with respect to any Person for any period, the sum, without duplication, of: (a) consolidated interest expense of such Person and its Subsidiaries for such period (including amortization of original issue discount, non-cash interest payments (other than imputed interest as a result of purchase accounting), commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing, the interest component of Capital Leases, net payments (if any) pursuant to interest rate Hedging Obligations (any net receipts pursuant to such interest rate Hedging Obligations shall be included as a reduction to Consolidated Interest Expense), but excluding amortization of deferred financing fees or expensing of any bridge or other financing fees, and any loss on the early extinguishment of Indebtedness, in each case, relating to the Specified Financings) and (b) consolidated capitalized interest of such Person and its Subsidiaries for such period, whether paid or accrued and less (c) interest income actually received or receivable in cash for such period; provided, however, that Securitization Fees shall be deemed not to constitute Consolidated Interest Expense.
“Consolidated Net Income” means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided, however, that
(1) any net after-tax extraordinary, unusual or nonrecurring gains or losses (including, without limitation, severance, relocation, signing bonus, transition and other restructuring costs and litigation settlements or losses) shall be excluded;
(2) the Net Income for such period shall not include the cumulative effect of a change in accounting principle(s) during such period;
(3) any net after-tax gains or losses attributable to asset dispositions other than in the ordinary course of business (as determined in good faith by the Board of Directors of the Issuer) and any gain (or loss) realized upon the sale or other disposition of any Capital Stock of any Person shall be excluded;
(4) the Net Income for such period of any Person that is not a Subsidiary of such Person, or that is accounted for by the equity method of accounting, shall be excluded; provided that, to the extent not already included, Consolidated Net Income of such Person shall be (A) increased by the amount of dividends or other distributions that are actually paid in cash (or to the extent converted into cash) to the referent Person or a Subsidiary thereof in respect of such period and (B) decreased by the amount of any equity of the Issuer in a net loss of any such Person for such period to the extent the Issuer has funded such net loss;
(5) [reserved];
(6) non-cash compensation charges, including any such charges arising from stock options, restricted stock grants or other equity-incentive programs shall be excluded;
(7) any net after-tax gains or losses (less all fees and expenses or charges relating thereto) attributable to the early extinguishment or conversion of Indebtedness or Hedging Obligations shall be excluded;
(8) unrealized gains and losses from Hedging Obligations or “embedded derivatives” that require the same accounting treatment as Hedging Obligations shall be excluded;
(9) the effect of any non-cash items resulting from any amortization, write-up, write-down, write-off or impairment of assets (including intangible assets, goodwill and deferred financing costs but excluding inventory) in connection with any future acquisition, merger, consolidation or similar transaction or any other non-cash impairment charges incurred subsequent to the Issue Date resulting from the application of SFAS Nos. 142 and 144 (excluding any such non-cash item to the extent that it represents an accrual of or reserve for cash expenditures in any future period except to the extent such item is subsequently reversed) shall be excluded;
(10) any purchase accounting adjustments (including the impact of writing up inventory or deferred revenue at fair value), amortization, impairments, write-offs, or non-cash charges with respect to purchase accounting with respect to any acquisition, merger, consolidation, disposition or similar transaction, shall be excluded;
(11) any reasonable expenses or charges incurred in connection with any Equity Offering, investment, acquisition, recapitalization or Indebtedness permitted to be incurred under this Indenture (in each case whether or not consummated) or the offering of the Notes, shall be excluded;
(12) the amount of any restructuring charges or reserves (which, for the avoidance of doubt, shall include retention, severance, systems establishment cost, excess pension charges, contract termination costs, including future lease commitments, and costs to consolidate facilities and relocate employees), shall be excluded; and
(13) any gains or losses relating to foreign currency transactions, including those relating to mark-to-market of Indebtedness denominated in foreign currencies resulting from the application of GAAP, including pursuant to FAS No. 52, shall be excluded.
To the extent not already included in Consolidated Net Income of such Person and its Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include the amount of proceeds received from business interruption insurance and reimbursements of any expenses or charges that are covered by indemnification or other reimbursement provisions in connection with any sale, conveyance, transfer or disposition of assets permitted under this Indenture.
“Contingent Obligations” means, with respect to any Person, any obligation of such Person Guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, or (iii) to purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.
“Corporate Trust Office of the Trustee” will be the address of the Trustee specified in Section 12.02 hereof or such other address as to which the Trustee may give notice to the Issuer.
“Credit Agreement” means that certain credit agreement, dated as of May 12, 2011 (as amended from time to time prior to the Issue Date, including by that certain amendment, dated as of September 20, 2019, among the Issuer, STI, certain other subsidiaries of the Issuer and the other parties thereto), among STI, as the borrower, the “Parent” (as defined therein), Morgan Stanley Senior Funding, Inc., as Administrative Agent, and the financial institutions from time to time party thereto, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, in each of the foregoing cases as amended, restated, supplemented, modified, renewed, refunded, replaced (whether at maturity or thereafter) or refinanced from time to time in one or more agreements or indentures (in each case with the same or new lenders or institutional investors), including any agreement adding or changing the borrower or guarantor or extending the maturity thereof or otherwise restructuring all or any portion of the Indebtedness thereunder or increasing the amount loaned or issued thereunder or altering the maturity thereof.
“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.
“Definitive Note” means a certificated non-Global Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Increases and Decreases in the Global Note” attached thereto.
“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.01(d) hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture, including DTC, Euroclear and/or Clearstream.
“Derivative Instrument” with respect to a Person, means any contract, instrument or other right to receive payment or delivery of cash or other assets to which such Person, or any Affiliate of such Person that is acting in concert with such Person in connection with such Person’s investment in the Notes (other than a Regulated Bank or Screened Affiliate), is a party (whether or not requiring further performance by such Person), the value and/or cashflows of which (or any material portion thereof) are materially affected by the value and/or performance of the Notes and/or the creditworthiness of the Parent, the Issuer and/or any one or more of the Guarantors (the “Performance References”).
“Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person which, by its terms (or by the terms of any security into which it is convertible or for which it is putable or exchangeable), or upon the happening of any event, matures or is mandatorily redeemable (other than as a result of a change of control or asset sale), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than as a result of a change of control or asset sale), in whole or in part, in each case prior to the date that is 91 days after the earlier of the final maturity date of the Notes or the date the Notes are no longer outstanding; provided, however, that if such Capital Stock is issued to any plan for
the benefit of employees of the Issuer or any of its Subsidiaries or transferred by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Issuer or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
“DTC” means The Depository Trust Company.
“EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication,
(1) the provision for taxes based on income or profits, plus franchise or similar taxes, of such Person for such period deducted in computing Consolidated Net Income, plus
(2) Consolidated Interest Expense of such Person for such period to the extent the same was deducted in calculating such Consolidated Net Income, plus
(3) Consolidated Depreciation and Amortization Expense of such Person for such period to the extent such depreciation and amortization were deducted in computing Consolidated Net Income, plus
(4) any other non-cash charges, expenses or losses (including any impairment charges and the impact of purchase accounting, including, but not limited to, the amortization of inventory step-up) reducing Consolidated Net Income for such period (excluding any such charge that represents an accrual or reserve for a cash expenditure for a future period), plus
(5) any net gain or loss resulting from Hedging Obligations relating to currency exchange risk, plus
(6) the amount of any expense for minority interests consisting of Subsidiary income attributable to minority equity interests of third parties in any Guarantor deducted (and not added back) in such period in calculating Consolidated Net Income, plus
(7) Securitization Fees to the extent deducted in calculating Consolidated Net Income for such period, plus
(8) any net after-tax income or loss from discontinued operations and any net after-tax gains or losses on disposal of discontinued operations, less
(9) non-cash items increasing Consolidated Net Income of such Person for such period (excluding any items which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges made in any prior period).
If acquisitions, dispositions, mergers or consolidations (as determined in accordance with GAAP) have been made by the Issuer or any Subsidiary of the Issuer during the Measurement Period or subsequent to such Measurement Period and on or prior to or simultaneously with the date on which EBITDA is calculated, then EBITDA shall be calculated on a pro forma basis assuming that all such acquisitions, dispositions, mergers or consolidations had occurred on the first day of such Measurement Period.
For purposes of this definition, whenever pro forma effect is to be given to an acquisition, disposition, merger or consolidation and the amount of income or earnings relating thereto, the pro forma calculations shall be determined in good faith by a responsible financial or accounting Officer of the Issuer and shall comply with the requirements of Rule 11-02 of Regulation S-X promulgated by the Commission, except that such pro forma calculations may include operating expense reductions for such period resulting from the transaction which is being given pro forma effect that (A) have been realized or (B) for which the steps necessary for realization have been taken (or are taken concurrently with such transaction) or (C) for which the steps necessary for realization are reasonably expected to be taken within the twenty-four month period following such transaction and, in each case, including, but not limited to, (a) reduction in personnel expenses, (b) reduction of costs related to administrative functions, (c) reduction of costs related to leased or owned properties and (d) reductions from the consolidation of operations and streamlining of corporate overhead; provided that, in each case, such adjustments are set forth in a certificate signed by a responsible financial or accounting Officer of the Issuer which states (i) the amount of such adjustment or adjustments and (ii) in the case of items (B) or (C) above, that such adjustment or adjustments are based on the reasonable good faith beliefs of the Officer executing such certificate at the time of such execution.
“Electronic Means” shall mean the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“Equity Offering” means any public or private sale of common stock or Preferred Stock of the Issuer or any of its direct or indirect parent companies (excluding Disqualified Stock), other than (i) public offerings with respect to common stock of the Issuer or of any of its direct or indirect parent companies registered on Form S-4 or Form S-8 or (ii) an issuance to any Subsidiary of the Issuer.
“Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system, and any successor thereto.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Foreign Subsidiary” means, with respect to any Person, any Subsidiary of such Person that is not incorporated, organized or existing under the laws of the United States, any state thereof or the District of Columbia.
“GAAP” means generally accepted accounting principles in the United States which are in effect on the Issue Date; provided, however, that leases shall continue to be classified and accounted for on a basis consistent with that reflected in the Issuer’s financial statements for the fiscal year ended December 31, 2018 for purposes of all covenant compliance determinations and all other pertinent determinations and purposes under this Indenture, notwithstanding any change in GAAP relating thereto, including with respect to ASC 842. Notwithstanding the foregoing any reports or financial information required to be delivered pursuant to Section 4.03 shall be prepared in accordance with GAAP as in effect on the date thereof. At any time after the adoption of IFRS by the Issuer for its financial statements and
reports for all financial reporting purposes, the Issuer may elect to apply IFRS for all purposes of this Indenture, in lieu of GAAP, and, upon any such election, references herein to GAAP shall be construed to mean IFRS as in effect from time to time; provided that (1) any such election once made shall be irrevocable and shall only be made once, except as may be necessary to comply with applicable law, rule or regulation, (2) all financial statements and reports required to be provided after such election pursuant to this Indenture shall be prepared on the basis of IFRS and (3) from and after such election, all ratios, computations and other determinations (A) based on GAAP contained in this Indenture shall be computed in conformity with IFRS and (B) in this Indenture that require the application of GAAP for periods that include fiscal quarters ended prior to the Issuer’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP. The Issuer shall give notice of any election to the Trustee and the Holders of Notes within 15 days of such election. For the avoidance of doubt, solely making an election (without any other action) referred to in this definition will not be treated as an incurrence of Indebtedness. For purposes of this description, the term “consolidated” with respect to any Person means such Person consolidated with its Subsidiaries.
“Global Note Legend” means the legend set forth in Section 2.06(g)(ii) hereof, which is required to be placed on all Global Notes issued under this Indenture.
“Global Notes” means the 144A Global Note and the Regulation S Global Note.
“Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness or other obligations. When used as a verb, “Guarantee” shall have a corresponding meaning.
“Guarantor” means any Person that provides a Note Guarantee, either on the Issue Date or after the Issue Date in accordance with the terms of this Indenture; provided that upon the release and discharge of such Person from its Note Guarantee in accordance with this Indenture, such Person shall cease to be a Guarantor. On the Issue Date, the Guarantors will be each Subsidiary of the Issuer that is a guarantor under the Credit Agreement.
“Hedging Obligations” means, with respect to any Person, the obligations of such Person under:
(1) currency exchange, interest rate or commodity swap agreements, currency exchange, interest rate or commodity cap agreements and currency exchange, interest rate or commodity collar agreements; and
(2) other agreements or arrangements designed to manage, hedge or protect such Person with respect to fluctuations in currency exchange, interest rates or commodity prices.
“Holder” means a Person in whose name a Note is registered in the register maintained by the Registrar.
“IFRS” means the International Financial Reporting Standards as issued by the International Accounting Standards Board.
“Indebtedness” means, with respect to any Person,
(a) any indebtedness (including principal and premium) of such Person, whether or not contingent:
(i) in respect of borrowed money,
(ii) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or, without duplication, reimbursement agreements in respect thereof),
(iii) representing the deferred and unpaid balance of the purchase price of any property (including Capital Leases), except (a) any such balance that constitutes a trade payable or similar obligation to a trade creditor in each case accrued in the ordinary course of business and (b) any earn-out obligations, until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP, or
(iv) representing any interest rate Hedging Obligations,
if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon the balance sheet (excluding the notes thereto) of such Person prepared in accordance with GAAP;
(b) Disqualified Stock of such Person;
(c) to the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on the Indebtedness of another Person (other than by endorsement of negotiable instruments for collection in the ordinary course of business); and
(d) to the extent not otherwise included, Indebtedness of another Person secured by a Lien on any asset owned by such Person (whether or not such Indebtedness is assumed by such Person);
provided, however, that notwithstanding the foregoing, Indebtedness shall be deemed not to include (a) Contingent Obligations incurred in the normal course of business and not in respect of borrowed money, (b) obligations under or in respect of Securitization Financings, or (c) items that would appear as a liability on a balance sheet prepared in accordance with GAAP as a result of the application of EITF 97-10, “The Effect of Lessee Involvement in Asset Construction.”
“Indenture” means this Indenture, as amended or supplemented from time to time.
“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.
“Initial Notes” has the meaning assigned to it in the preamble to this Indenture.
“Institutional Accredited Investor” means an institution that is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not also QIBs.
“Investment Grade” means (1) BBB- (with a stable outlook) or above, in the case of S&P (or its equivalent under any successor Rating Categories of S&P) and Baa3 (with a stable outlook) or above, in the case of Moody’s (or its equivalent under any successor Rating Categories of Moody’s), or (2) the equivalent to the foregoing in respect of the Rating Categories of any other Rating Agencies.
“Issue Date” means March 29, 2021.
“Joint Venture” means, with respect to any Person, any partnership, corporation or other entity in which up to and including 50% of the Equity Interests is owned, directly or indirectly, by such Person or one or more of its Subsidiaries. A Joint Venture shall not be treated as a Subsidiary.
“Legended Regulation S Global Note” means a Global Note in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will initially be issued in a denomination equal to the outstanding principal amount at maturity of the Notes initially sold in reliance on Rule 903 of Regulation S.
“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, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to constitute a Lien.
“Long Derivative Instrument” means a Derivative Instrument (i) the value of which generally increases, and/or the payment or delivery obligations under which generally decrease, with positive changes to the Performance References and/or (ii) the value of which generally decreases, and/or the payment or delivery obligations under which generally increase, with negative changes to the Performance References.
“Measurement Period” means, at any date of determination, the most recently completed four fiscal quarters of the Issuer or Parent for which financial statements have been filed with the Commission, or in the event that, at any date of determination, neither the Issuer nor Parent is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the most recently completed four fiscal quarters of the Issuer for which internal financial statements are available.
“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
“Net Income” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends or accretion of any Preferred Stock.
“Net Short” means, with respect to a Holder or beneficial owner of the Notes, as of a date of determination, that either (i) the value of its Short Derivative Instruments (if any) exceeds the sum of the (x) the value of its Notes plus (y) the value of its Long Derivative Instruments (if any) as of such date of determination or (ii) it is reasonably expected that the situation described in the foregoing clause (i) would have been the case were a “failure to pay” or
“bankruptcy credit event” (each as defined in the 2014 International Swaps and Derivatives Association, Inc. Credit Derivatives Definitions) to have occurred with respect to the Parent, the Issuer or any Guarantor immediately prior to such date of determination.
“Non-U.S. Person” means a Person who is not a U.S. Person.
“Note Guarantee” means any Guarantee of the obligations of the Issuer under this Indenture and the Notes issued hereunder by a Guarantor in accordance with the provisions of this Indenture.
“Notes” has the meaning assigned to it in the preamble to this Indenture. The Initial Notes and any Additional Notes shall be treated as a single class for all purposes under this Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes.
“Offering Memorandum” means that certain final offering memorandum, dated March 15, 2021, relating to the offering and sale of the Initial Notes.
“Officer” means the Chairman of the Board, the Chief Executive Officer, the President, Chief Operating Officer, the Chief Financial Officer, the Chief Accounting Officer, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary, or any director, managing director or member of the managing board, or any equivalent of any of the foregoing, or any Person duly authorized to act for on behalf, of the Issuer or any Guarantor, as applicable.
“Officers’ Certificate” means a certificate signed on behalf of the Issuer or any Guarantor, as applicable, by two Officers of the Issuer or such Guarantor, as applicable, one of whom is the Chairman of the Board of Directors, the Chief Executive Officer, the Chief Operating Officer, the Chief Financial Officer, the Treasurer or the Chief Accounting Officer, or any director, managing director or member of the managing board, or any equivalent of any of the foregoing, of the Issuer or such Guarantor, as applicable; provided that, if the Issuer or such Guarantor, as applicable, has only one Officer, such certificate shall be required to be signed only by such one officer.
“Opinion of Counsel” means an opinion from legal counsel that meets the requirements of Section 12.05 hereof. The counsel may be an employee of or counsel to the Issuer or any Subsidiary of the Issuer.
“Parent” means Sensata Technologies Holding plc, a public limited liability company incorporated under the laws of England and Wales or any successor or other entity that serves as a parent company to the Issuer.
“Participant” means, with respect to the Depositary, a Person who has an account with the Depositary.
“Performance References” has the meaning set forth in the definition of the term “Derivative Instruments.”
“Permitted Bank Indebtedness” means any Indebtedness of the Issuer or any Subsidiary of the Issuer pursuant to one or more credit facilities with banks or other lenders providing for revolving credit loans or term loans or the issuance of letters of credit or bankers’ acceptances or the like and Guarantees of such Indebtedness by the Issuer or any Subsidiary of the Issuer; provided that the aggregate principal amount of such Permitted Bank Indebtedness at any time outstanding does not exceed $500,000,000.
“Permitted Business” means the business and any services, activities or businesses incidental, or directly related or similar to, any line of business engaged in by the Issuer and its Subsidiaries as of the Issue Date or any business activity that is a reasonable extension, development or expansion thereof or ancillary thereto.
“Permitted Liens” means:
(1) Liens securing Permitted Bank Indebtedness;
(2) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations;
(3) (a) Liens given to secure the payment of the purchase price or other acquisition, installation or construction costs incurred in connection with the acquisition (including acquisition through merger or consolidation) of any Principal Property, including Capital Lease transactions in connection with any such acquisition and including any purchase money Liens, and (b) Liens existing on any Principal Property at the time of acquisition (including acquisition through merger or consolidation) thereof or at the time of acquisition by the Issuer or any Subsidiary of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (a), the Liens shall be given within 12 months after such acquisition and shall attach solely to the Principal Property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof;
(4) Liens in favor of the Issuer or a Subsidiary of the Issuer;
(5) Liens on any Principal Property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such Principal Property;
(6) Liens imposed by law, such as carriers’, warehousemen’s and mechanic’s Liens and other similar Liens arising in the ordinary course of business, Liens in connection with legal proceedings and Liens arising solely by virtue of any statutory or common law provision relating to banker’s Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution;
(7) Liens for taxes, assessments or other governmental charges not yet overdue for a period of more than 30 days or subject to penalties for non-payment or which are being contested in good faith by appropriate proceedings;
(8) Liens to secure the performance of bids, trade or commercial contracts, government contracts, purchase, construction, sales and servicing contracts (including utility contracts), leases, statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business and to secure letters of credit, Guarantees, bonds or other sureties given in connection with the foregoing or in connection with workers’ compensation, unemployment insurance or other types of social security or similar laws and regulations;
(9) licenses of intellectual property of the Issuer and its Subsidiaries granted in the ordinary course of business;
(10) Liens to secure Indebtedness incurred by Foreign Subsidiaries pursuant to Section 4.09(b)(10);
(11) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligation in respect of banker’s acceptances issued or created in the ordinary course of business for the account of such Person to facilitate the purchase, shipment, or storage of such inventory or other goods;
(12) Liens to secure Qualified Securitization Financings;
(13) Liens on stock, partnership or other equity interests in any Joint Venture of the Issuer or any of its Subsidiaries or in any Subsidiary of the Issuer that owns an equity interest in a Joint Venture to secure Indebtedness contributed or advanced solely to that Joint Venture; provided that, in each case, the Indebtedness secured by such Lien is not secured by a Lien on any other property of the Issuer or any Subsidiary of the Issuer;
(14) Liens and deposits securing netting services, business credit card programs, overdraft protection and other treasury, depository and cash management services or incurred in connection with any automated clearing-house transfers of funds or other fund transfer or payment processing services;
(15) Liens on, and consisting of, deposits made by the Issuer or STI, as applicable, to discharge or defease the Notes and this Indenture, the 2023 Notes, the 2024 Notes, the 2025 Notes, the 2030 Notes, the 2031 Notes or any other Indebtedness;
(16) Liens on insurance policies and the proceeds thereof incurred in connection with the financing of insurance premiums;
(17) easements, rights of way, minor encroachments, protrusions, municipal and zoning and building ordinances and similar charges, encumbrances, title defects or other irregularities, governmental restrictions on the use of property or conduct of business, and Liens in favor of governmental authorities and public utilities, that do not materially interfere with the ordinary course of business of the Issuer and its Subsidiaries, taken as a whole; or
(18) any extension, renewal, substitution or replacement (or successive extensions, renewals, substitutions or replacements), in whole or in part, of any Lien referred to in the preceding clauses (1) through (17), inclusive.
“Person” means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization, limited liability company or government or other entity.
“Preferred Stock” means any Equity Interest with preferential rights of payment of dividends upon liquidation, dissolution or winding up.
“Principal Property” means, with respect to any Person, all of such Person’s interests in any kind of property or asset (including the capital stock in and other securities of any other Person), except such as the Board of Directors by resolution determines in good faith (taking into account, among other things, the materiality of such property to the business, financial condition and earnings of the Issuer and its Subsidiaries taken as a whole) not to be material to the business of the Issuer and its Subsidiaries, taken as a whole.
“Private Placement Legend” means the legend set forth in Section 2.06(g)(i) hereof to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Qualified Securitization Financing” means any Securitization Financing of a Securitization Subsidiary that meets the following conditions: (i) the Board of Directors of the Issuer shall have determined in good faith that such Qualified Securitization Financing (including financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to the Issuer and the Securitization Subsidiary, (ii) all sales of Securitization Assets and related assets to the Securitization Subsidiary are made at fair market value (as determined in good faith by the Issuer) and (iii) the financing terms, covenants, termination events and other provisions thereof shall be market terms (as determined in good faith by the Issuer) and may include Standard Securitization Undertakings. The grant of a security interest in any Securitization Assets of the Issuer or any of its Subsidiaries (other than a Securitization Subsidiary) to secure Indebtedness under the Credit Agreement and any Credit Agreement Refinancing Indebtedness (as defined in the Credit Agreement) with respect thereto shall not be deemed a Qualified Securitization Financing.
“Rating Agency” means (1) S&P and Moody’s or (2) if S&P or Moody’s or both of them are not making ratings publicly available, a nationally recognized statistical rating organization within the meaning of Section 3(62) under the Exchange Act, as the case may be, selected by the Issuer in its discretion, which will be substituted for S&P or Moody’s or both, as the case may be.
“Rating Category” means (1) with respect to S&P, any of the following categories (any of which may include a “+” or a “-“: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor categories), (2) with respect to Moody’s, any of the following categories: Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories), and (3) the equivalent of any such categories of S&P or Moody’s used by another Rating Agency, if applicable.
“Regulated Bank” means a commercial bank with a consolidated combined capital surplus of at least $5,000,000,000 that is (i) a U.S. depository institution the deposits of which are insured by the Federal Deposit Insurance Corporation; (ii) a corporation organized under section 25A of the U.S. Federal Reserve Act of 1913; (iii) a branch, agency or commercial lending company of a foreign bank operating pursuant to approval by and under the supervision
of the Board of Governors under 12 CFR part 211; (iv) a non-U.S. branch of a foreign bank managed and controlled by a U.S. branch referred to in clause (iii); or (v) any other U.S. or non U.S. depository institution or any branch, agency or similar office thereof supervised by a bank regulatory authority in any jurisdiction.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Global Note” means a Legended Regulation S Global Note or an Unlegended Regulation S Global Note, as appropriate.
“Responsible Officer,” when used with respect to the Trustee, means any officer within the Corporate Trust Department of the Trustee (or any successor group of the Trustee) 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, in each case having direct responsibility for the administration of this Indenture.
“Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.
“Restricted Global Note” means a Global Note bearing the Private Placement Legend.
“Restricted Period” means the 40-day distribution compliance period as defined in Regulation S, which period shall terminate (a) on May 8, 2021 with respect to the Initial Notes and (b) on such date as set forth in the applicable supplemental indenture entered into pursuant to Section 9.01(viii) with respect to any Additional Notes.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“Rule 903” means Rule 903 promulgated under the Securities Act.
“Rule 904” means Rule 904 promulgated under the Securities Act.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and any successor to its rating agency business.
“Screened Affiliate” means any Affiliate of a Holder (i) that makes investment decisions independently from such Holder and any other Affiliate of such Holder that is not a Screened Affiliate, (ii) that has in place customary information screens between it and such Holder and any other Affiliate of such Holder that is not a Screened Affiliate, and such screens prohibit the sharing of information with respect to the Parent or any of its Subsidiaries, (iii) whose investment policies are not directed by such Holder or any other Affiliate of such Holder that is acting in concert with such Holder in connection with its investment in the Notes, and (iv) whose investment decisions are not influenced by the investment decisions of such Holder or any other Affiliate of such Holder that is acting in concert with such Holders in connection with its investment in the Notes.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Securitization Assets” means any accounts receivable or other revenue streams subject to a Qualified Securitization Financing.
“Securitization Fees” means reasonable distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Securitization Subsidiary in connection with any Qualified Securitization Financing.
“Securitization Financing” means any transaction or series of transactions that may be entered into by the Issuer or any of its Subsidiaries pursuant to which the Issuer or any of its Subsidiaries may sell, convey or otherwise transfer to (a) a Securitization Subsidiary (in the case of a transfer by the Issuer or any of its Subsidiaries) and (b) any other Person (in the case of a transfer by a Securitization Subsidiary), or may grant a security interest in, any Securitization Assets (whether now existing or arising in the future) of the Issuer or any of its Subsidiaries, and any assets related thereto including, without limitation, all collateral securing such Securitization Assets, all contracts and all guarantees or other obligations in respect of such Securitization Assets, proceeds of such Securitization Assets and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving Securitization Assets and any Hedging Obligations entered into by the Issuer or any such Subsidiary in connection with such Securitization Assets.
“Securitization Repurchase Obligation” means any obligation of a seller of Securitization Assets in a Qualified Securitization Financing to repurchase Securitization Assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including, without limitation, as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, off set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
“Securitization Subsidiary” means any Subsidiary of the Issuer (or another Person) formed for the purposes of engaging in one or more Qualified Securitization Financings and other activities reasonably related thereto.
“Senior Management” means the Chief Executive Officer or the Chief Financial Officer, or the equivalent of the foregoing, of the Issuer or Parent.
“Short Derivative Instrument” means a Derivative Instrument (i) the value of which generally decreases, and/or the payment or delivery obligations under which generally increase, with positive changes to the Performance References and/or (ii) the value of which generally increases, and/or the payment or delivery obligations under which generally decrease, with negative changes to the Performance References.
“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 (except, with respect to each test contained therein, substituting 20 percent instead of 10 percent as the applicable threshold).
“Specified Financings” means the entry into the Credit Agreement and the borrowings made thereunder, the 2023 Notes, the 2024 Notes, the 2025 Notes, the 2030 Notes and the 2031 Notes.
“STFC” means Sensata Technologies Finance Company, LLC, a Delaware limited liability company and a Subsidiary of the Issuer on the Issue Date.
“STI” means Sensata Technologies, Inc., a Delaware corporation and a Subsidiary of the Issuer on the Issue Date.
“Standard Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by the Issuer or any Subsidiary of the Issuer which the Issuer has determined in good faith to be customary in a Securitization Financing, including, without limitation, those relating to the servicing of the assets of a Securitization Subsidiary, it being understood that any Securitization Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking.
“Stated Maturity,” when used with respect to any Note or any installment of principal thereof or interest thereon, means the date specified in such Note as the fixed date on which the principal of such Note or such installment of principal or interest is due and payable.
“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 that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and
(2) any partnership, joint venture, limited liability company or similar entity of which (x) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise and (y) such Person or any Wholly Owned Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
“TIA” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).
“Treasury Rate” means, as of the applicable redemption date, the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) which has become publicly available at least two Business Days prior to the date fixed for prepayment (or, if such Statistical Release is no longer published, any publicly available source for similar market data)) most nearly equal to the period from the redemption date to April 15, 2024; provided, however, that if the period from the redemption date to April 15, 2024 is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Treasury Rate will be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the period from the redemption date to April 15, 2024 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.
“Trustee” means The Bank of New York Mellon, a New York banking corporation, until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
“Unlegended Regulation S Global Note” means a Global Note in the form of Exhibit A hereto bearing the Global Note Legend, deposited with or on behalf of, and registered in the name of, the Depositary or its nominee and issued upon expiration of the Restricted Period.
“Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required to bear the Private Placement Legend.
“Unrestricted Global Note” means a Global Note that does not bear and is not required to bear the Private Placement Legend.
“U.S. Government Securities” means securities that are
(a) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged; or
(b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of the issuers thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government Securities or a specific payment of principal of or interest on any such U.S. Government Securities held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Securities or the specific payment of principal of or interest on the U.S. Government Securities evidenced by such depository receipt.
“U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act.
“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time ordinarily entitled to vote in the election of the Board of Directors of such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness, at any date, the quotient obtained by dividing: (1) the sum of the products of the number of years from the date of determination to the date of each successive scheduled principal payment of such Indebtedness multiplied by the amount of such payment; by (2) the sum of all such payments.
“Wholly Owned Subsidiary” of any Person means a Subsidiary of such Person, 100% of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares and shares issued to foreign nationals under applicable law) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of such Person or by such Person and one or more Wholly Owned Subsidiaries of such Person.
Section 1.02 Other Definitions.
| | | | | |
| Term | Defined in Section |
| “Additional Amounts” | 4.01 |
| “Applicable Law” | 4.01 |
| “Authentication Order” | 2.02 |
| “Authorized Officers” | 7.06 |
| “Change of Control Offer” | 4.15 |
| “Change of Control Payment” | 4.15 |
| “Change of Control Payment Date” | 4.15 |
| “Change in Tax Law” | 3.07 |
| “Covenant Defeasance” | 8.03 |
| “Event of Default” | 6.01 |
| “First Par Call Date” | 3.07 |
| “Initial Default” | 6.01 |
| “Instructions” | 7.06 |
| “Legal Defeasance” | 8.02 |
“Luxembourg Guarantor” | 10.02 |
| “Minimum Dollar Denomination” | 2.01 |
| “Notation of Guarantee” | 10.03 |
| “Paying Agent” | 2.03 |
| “Registrar” | 2.03 |
| “Relevant Taxing Jurisdiction” | 4.01 |
| “Reversion Date” | 4.19 |
| “Subsidiary Debt” | 4.09 |
| “Successor Company” | 5.01 |
| “Suspended Provisions” | 4.19 |
| “Suspension Date” | 4.19 |
| “Suspension Period” | 4.19 |
| “Taxes” | 4.01 |
Section 1.03 Incorporation by Reference of Certain Provisions and Defined Terms in the Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision 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 and the Note Guarantees; and
“obligor” on the indenture securities means the Issuer and the Guarantors, respectively, and any successor obligor upon the indenture securities, respectively.
All other terms used in this Indenture that are defined by the TIA, defined by the TIA by reference to another statute or defined by the Commission rule under the TIA have the meanings so assigned to them by such definitions.
This Indenture has not been qualified under the TIA and no provision of the TIA shall be deemed a part of this Indenture except as specifically set forth herein.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(i)a term has the meaning assigned to it;
(ii)an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(iii)“or” is not exclusive;
(iv)words in the singular include the plural, and words in the plural include the singular;
(v)“will” shall be interpreted to express a command;
(vi)provisions apply to successive events and transactions;
(vii)references to sections of or rules under the Securities Act will be deemed to include substitute, replacement of successor sections or rules adopted by the Commission from time to time; and
(viii)unless otherwise provided in this Indenture or in any Note, the words “execute,” “execution,” “signed” and “signature” and words of similar import used in or related to any document to be signed in connection with this Indenture, any Note or any of the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures and 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 in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest 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 and any other similar state laws based on the Uniform Electronic Transactions Act; provided that, notwithstanding anything herein to the contrary, the Trustee is not under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Trustee pursuant to procedures approved by the Trustee.
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating.
(a)General. The Notes and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The Notes shall be in minimum denominations of $200,000 (the “Minimum Dollar Denomination”) and any integral multiple of $1,000 in excess thereof.
The terms and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and the Issuer, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
(b)Rule 144A Global Notes; Global Notes Generally. Notes offered and sold in reliance on Rule 144A shall be issued initially in the form of a 144A Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for the Depositary and registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated Participants in the Depositary, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided. Each Global Note will represent such of the outstanding Notes as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee or the custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.
(c)Regulation S Global Notes. Notes offered and sold in reliance on Regulation S shall be issued initially in the form of the Legended Regulation S Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for the Depositary, and registered in the name of the Depositary or the nominee of the Depositary for the accounts of the designated Participants in the Depositary, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided. Following the termination of the Restricted Period, beneficial interests in a Legended Regulation S Global Note shall be exchanged for beneficial interests in an Unlegended Regulation S Global Note pursuant to Section 2.06 and the Applicable Procedures. Simultaneously with the authentication of Unlegended Regulation S Global Notes, the Trustee shall cancel such Legended Regulation S Global Note. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee or the custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.
(d)Depositary. The Issuer has initially appointed DTC to act as Depositary with respect to the Global Notes.
(e)Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” or the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream will be applicable to transfers of beneficial interests in the Regulation S Global Notes that are held by Euroclear or Clearstream, respectively, as Participants in DTC.
(f)None of the Issuer, the Guarantors, the Trustee or any Agent shall have any responsibility or obligation to any beneficial owner of an interest in a Global Note, a member of, or a Participant or Indirect Participant in, the Depositary or other Person, with respect to the accuracy of the records of the Depositary or its nominee or of any Participant, Indirect Participant or member thereof, with respect to any ownership interest in the Global Notes or with respect to the delivery to any Participant, Indirect Participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the Applicable Procedures of the Depositary. The Issuer, the Guarantors, the Trustee and each Agent may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, Participants, Indirect Participants and any beneficial owners.
Section 2.02 Execution and Authentication.
At least one Officer must sign the Notes for the Issuer by manual, facsimile, or electronic signature, which may be delivered by .pdf attachment to an email or by other electronic means.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note will nevertheless be valid.
A Note will not be valid until authenticated by the manual or electronic signature of the Trustee. The signature will be conclusive evidence that the Note has been authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Issuer signed by an Officer of the Issuer (an “Authentication Order”), authenticate Notes for original issue that may be validly issued under this Indenture, including any Additional Notes. Each such Authentication Order shall specify the amount of Notes to be authenticated and such other information as the Trustee may reasonably request. The aggregate principal amount of Notes outstanding at any time may not exceed the aggregate principal amount of Notes authorized for issuance by the Issuer pursuant to one or more Authentication Orders, except as provided in Section 2.07 hereof.
Additional Notes may have an issue date, issue price, aggregate principal amount, interest accrual date or initial interest payment date different from those of the Initial Notes or any other Additional Notes. Any Additional Notes that are not fungible with the Initial Notes or any other Additional Notes for United States federal income tax purposes shall constitute a separate issue and shall carry a separate “CUSIP” or “ISIN” number. Notwithstanding the foregoing, all Notes issued under this Indenture shall be treated as a single class for all purposes under this Indenture, including for purposes of voting with respect to consents, waivers and amendments regarding this Indenture or the Notes and redemptions of and offers to purchase the Notes.
The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Issuer.
Section 2.03 Agents.
The Issuer will maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar will keep a register of the Notes and of their transfer and exchange. The Issuer may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Issuer may change any Registrar or Paying Agent without notice to any Holder. The Issuer will notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Issuer fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Issuer or any of its Subsidiaries may act as Registrar or Paying Agent.
The Issuer may remove any Registrar or Paying Agent upon written notice to such Registrar or Paying Agent and to the Trustee; provided, however, that no such removal shall become effective until (i) if applicable, acceptance of an appointment by a successor as evidenced by an appropriate agreement entered into by the Issuer and such successor Registrar or Paying Agent, as the case may be, and delivered to the Trustee or (ii) notification to the Trustee that the Trustee shall serve as Registrar or Paying Agent until the appointment of a successor in accordance with clause (i) above. The Registrar or Paying Agent may resign at any time upon written notice to the Issuer and the Trustee; provided, however, that the Trustee may resign as Registrar or Paying Agent only if the Trustee also resigns as Trustee in accordance with Section 7.08.
The Issuer initially appoints the Trustee to act as the Registrar and Paying Agent with respect to the Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Issuer will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium or interest on the Notes, and will notify the Trustee in writing of any default by the Issuer in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by such Paying Agent. Upon payment over to the Trustee, the Paying Agent (if other than the Issuer or a Subsidiary) will have no further liability for the money. If the Issuer or a Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuer, the Trustee will serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee will preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Issuer will furnish or cause the Registrar to furnish to the Trustee at least seven Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes and the Issuer shall otherwise comply with TIA § 312(a).
Section 2.06 Transfer and Exchange.
(a)Transfer and Exchange of Global Notes. A Global Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the Issuer for Definitive Notes if:
(A) The Depositary (1) notifies the Issuer that it is unwilling or unable to continue as Depositary for the Global Notes or (2) has ceased to be a clearing agency registered under the Exchange Act and the Issuer thereupon fails to appoint a successor Depositary within 120 Business Days;
(B) the Issuer, at its option, notifies the Trustee in writing that it elects to cause the issuance of such Definitive Notes in exchange for beneficial interests in the Global Notes; or
(C) there shall have occurred and be continuing a Default or an Event of Default with respect to the Notes.
Upon the occurrence of any of the preceding events in (A), (B) or (C) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a), however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (d).
(b)Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes will be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also will require compliance with either subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(i)Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend; provided, however, that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Legended Regulation S Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person. Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(i).
(ii)All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(i) above, the transferor of such beneficial interest must deliver to the Registrar either:
(A)both (1) and (2):
a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged; and
instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or
(B)both (1) and (2):
a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and
instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (B)(1) above,
provided that in no event shall Definitive Notes be issued upon the transfer or exchange of beneficial interests in the Legended Regulation S Global Note prior to the expiration of the Restricted Period and the receipt by the Registrar of a certificate from the transferor stating that the transfer complies with Rule 903 or Rule 904 of the Securities Act.
Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Notes pursuant to Section 2.06(h) hereof.
(iii)Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.06(b)(ii) above and the Registrar receives the following:
(A)if the transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; and
(B)if the transferee will take delivery in the form of a beneficial interest in the Legended Regulation S Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof.
(iv)Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.06(b)(ii) above and the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Issuer so requests or if the Applicable Procedures so require, an opinion of counsel in form reasonably acceptable to the Issuer to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
If any such exchange or transfer is effected at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to this subparagraph (iv).
(v)Transfer and Exchange of Beneficial Interests in an Unrestricted Global Note for Beneficial Interests in a Restricted Global Note. Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.
(c)Transfer and Exchange of Beneficial Interests for Definitive Notes.
(i)Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation:
(A)if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;
(B)if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
(C)if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;
(D)if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E)if such beneficial interest is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications, certificates and opinion of counsel required by item (3)(d) thereof, if applicable;
(F)if such beneficial interest is being transferred to the Issuer or any of its Subsidiaries, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G)if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuer shall execute and the Trustee shall authenticate upon receipt of an Authentication Order in accordance with Section 2.02 hereof and deliver to the Person designated in the instructions a Restricted Definitive Note in the appropriate principal amount. Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Restricted Definitive Notes to the Persons in whose names such Notes are so registered. Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.
(ii)Beneficial Interests in Legended Regulation S Global Note to Definitive Notes. Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a beneficial interest in the Legended Regulation S Global Note may not be exchanged for a Definitive Note or transferred to a Person who takes delivery thereof in the form of a Definitive Note prior to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar of a certificate from the transferor stating (x) that the transfer complies with Rule 903 or Rule 904 of the Securities Act; or (y) that the transfer is made pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.
(iii)Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Issuer so requests or if the Applicable Procedures so require, an opinion of counsel in form reasonably acceptable to the Issuer to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(iv)Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof, the Trustee will cause the aggregate principal amount of the Unrestricted Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuer will execute and the Trustee will authenticate upon receipt of an Authentication Order in accordance with Section 2.02 hereof and deliver to the Person designated in the instructions an Unrestricted Definitive Note in the appropriate principal amount. Any Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iv) will be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest requests through instructions to the Registrar from or through the Depositary and the Participant or Indirect Participant. The Trustee will deliver such Unrestricted Definitive Notes to the Persons in whose names such Notes are so registered. Any Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) will not bear the Private Placement Legend.
(d)Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i)Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:
(A)if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;
(B)if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
(C)if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;
(D)if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E)if such Restricted Definitive Note is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications, certificates and opinion of counsel required by item (3)(d) thereof, if applicable;
(F)if such Restricted Definitive Note is being transferred to the Issuer or any of its Subsidiaries, a certificate from the
transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G)if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee will cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global Note, and in the case of clause (C) above, the Regulation S Global Note.
(ii)Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Note proposes to exchange such Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Restricted Definitive Note proposes to transfer such Restricted Definitive Note to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Issuer so requests or if the Applicable Procedures so require, an opinion of counsel in form reasonably acceptable to the Issuer to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of this Section 2.06(d)(ii), the Trustee will cancel the Restricted Definitive Note and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.
(iii)Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Unrestricted Definitive Note for a beneficial interest in an Unrestricted Global Note or transfer such Unrestricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraphs (ii) or (iii) above at a time when an Unrestricted Global Note has not yet been issued, the Issuer will issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of the Unrestricted Definitive Note so transferred.
(e)Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Issuer duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder must provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).
(i)Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of a Person or Persons who takes delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:
(A)if the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;
(B)if the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and
(C)if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and opinion of counsel required by item (3) thereof, if applicable.
(ii)Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Note proposes to exchange such Restricted Definitive Note for an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Note proposes to transfer such Restricted Definitive Note to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a
certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Issuer so requests, an opinion of counsel in form reasonably acceptable to the Issuer to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(iii)Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of an Unrestricted Definitive Note may transfer such Unrestricted Definitive Note to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Note pursuant to the instructions from the Holder thereof.
(f)[Intentionally Omitted]
(g)Legends. The following legends will appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.
(i)Private Placement Legend.
(A)Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:
“THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN “INSTITUTIONAL ACCREDITED INVESTOR”), (2) AGREES THAT IT WILL NOT, WITHIN [IN THE CASE OF RULE 144A NOTES: ONE YEAR][IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO SENSATA TECHNOLOGIES B.V. OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 903 OR RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL, IF SENSATA TECHNOLOGIES B.V. SHALL SO REQUEST), (F) INSIDE THE UNITED
STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER IS ANNEXED TO THE INDENTURE AND CAN BE OBTAINED FROM THE TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES OF LESS THAN $100,000 AN OPINION OF COUNSEL ACCEPTABLE TO SENSATA TECHNOLOGIES B.V. THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN [IN THE CASE OF RULE 144A NOTES: ONE YEAR][IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE), THE HOLDER MUST DELIVER THE CERTIFICATE OF TRANSFER RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND SENSATA TECHNOLOGIES B.V. SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS SENSATA TECHNOLOGIES B.V. MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.”
(B)Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii) or (e)(iii) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) will not bear the Private Placement Legend.
(ii)Global Note Legend.
Each Global Note will bear a legend in substantially the following form:
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(A) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE RIGHTS ATTACHING TO THIS GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).”
(h)Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or a Definitive Note, the principal amount of Notes represented by such Global Note will be reduced accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note will be increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
(i)General Provisions Relating to Transfers and Exchanges.
(i)To permit registrations of transfers and exchanges, the Issuer will execute and the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof.
(ii)No service charge will be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.07, 2.10, 3.06, 4.15 and 9.05 hereof).
(iii)The Registrar will not be required to register the transfer of or exchange of any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
(iv)All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes will be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(v)Neither the Registrar nor the Issuer will be required:
(A)to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day the Issuer gives notice of redemption of the Notes under Section 3.03 hereof or makes a Change of Control Offer pursuant to Section 4.15 hereof and ending at the close of business on the day notice is given or the Change of Control Offer is made, as applicable;
(B)to register the transfer of or to exchange any Note selected for redemption in whole or in part or subject to purchase in a Change of Control Offer, except the unredeemed or unpurchased portion of any Note being redeemed or purchased in part; or
(C)in the case of a redemption or a Change of Control Payment Date occurring after a record date but on or before the corresponding interest payment date, register the transfer or exchange of any Note on or after the record date and before the date of redemption or Change of Control Payment Date, as applicable.
(vi)Subject to the rights of Holders as of the relevant record date to receive interest on the corresponding interest payment date and Section 2.12, prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuer may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Issuer shall be affected by notice to the contrary.
(vii)The Trustee will authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02 hereof.
(viii)Neither the Trustee nor any Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any tax or securities laws with respect to any restrictions on transfer imposed under this Indenture or under applicable law (including any transfers between or among Participants, Indirect Participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Issuer and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Issuer will issue and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Issuer, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuer to protect the Issuer, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuer and the Trustee may charge for their expenses in replacing a Note.
Every replacement Note is an additional obligation of the Issuer and will be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the Trustee except (i) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (ii) Notes for the payment or redemption of which 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, segregated and held in trust by the Issuer (if the Issuer shall act as its own Paying Agent) for the Holders of such Notes; provided that, if such Notes are to be redeemed prior to the maturity thereof, written notice of such redemption has been duly given pursuant to this Indenture, or provision satisfactory to the Trustee shall have been made for giving such notice; and (iii) Notes in substitution for which other Notes shall have been authenticated and delivered, or which shall have been paid, pursuant to the terms of this Indenture (except with respect to any such Note as to which proof satisfactory to the Trustee is presented that such Note is held by a Person in whose hands such Note is a legal, valid and binding obligation of the Issuer). Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee and the Registrar receive proof satisfactory to each of them that the replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay all principal, premium and accrued interest with respect to the outstanding Notes payable on that date and the Paying Agent is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture, then on and after that date such Notes will be deemed to be no longer outstanding and will cease to accrue interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in any direction, request, waiver or consent in the exercise of any discretion, power or authority (whether contained in this Indenture or vested by operation of law) which the Trustee is required, expressly or impliedly, to exercise in or by reference to the interests of the Holders or any of them, Notes owned by the Issuer or any Guarantor, or by an Affiliate of the Issuer or any Guarantor, will be considered as though not outstanding, except that for the purposes of determining whether the Trustee will be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee knows are so owned will be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the Issuer may prepare and the Trustee, upon receipt of an Authentication Order, will authenticate temporary Notes. Temporary Notes will be substantially in the form of certificated Notes but may have variations that the Issuer considers appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuer will prepare and the Trustee will authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the benefits of this Indenture.
Section 2.11 Cancellation.
The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent will forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and will dispose of such canceled Notes in its customary manner (subject to the record retention requirement of the Exchange Act). Certification of the destruction of all canceled Notes will be delivered to the Issuer. The Issuer may not issue new Notes to replace Notes that it has redeemed, purchased or paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Issuer defaults in a payment of interest on the Notes, it will pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Issuer will notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Issuer will fix or cause to be fixed each such special record date and payment date; provided that no such special record date may be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Issuer (or, upon the written request of the Issuer, the Trustee in the name and at the expense of the Issuer) will give or cause to be given to Holders in accordance with Section 12.02 a notice prepared by the Issuer that states the special record date, the related payment date and the amount of such interest to be paid.
Section 2.13 CUSIP Numbers and ISIN Numbers.
The Issuer in issuing the Notes may use “CUSIP” numbers and “ISINs” (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers and “ISINs” in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers, either as printed on the Notes or as
contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Trustee in writing of any change in the “CUSIP” numbers or “ISINs.”
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Issuer elects to redeem Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at least five days prior to the date notice of redemption is to be delivered to the Holders of the Notes in accordance with Section 3.03 (unless a shorter time is acceptable to the Trustee), an Officers’ Certificate setting forth:
(i) the clause of this Indenture pursuant to which the redemption shall occur;
(ii) the redemption date;
(iii) the principal amount of Notes to be redeemed;
(iv) the redemption price;
(v) the applicable CUSIP numbers; and
(vi) a statement that the conditions precedent to such redemption have been satisfied.
Section 3.02 Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed at any time, Notes will be selected for redemption as follows:
(i) if the Notes are listed on any national securities exchange, Notes shall be selected in compliance with the requirements of the principal national securities exchange on which the Notes are listed; or
(ii) if the Notes are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem fair and appropriate,
in each case, subject to the Applicable Procedures of DTC as applicable.
In the event of partial redemption of Notes, (i) in the case of Definitive Notes, the particular Notes to be redeemed will be selected, unless otherwise provided herein, by the Trustee not less than 30 days nor more than 60 days prior to the redemption date from the outstanding Notes not previously called for redemption, and (ii) in the case of Global Notes, shall be selected in accordance with the Applicable Procedures of DTC.
The Trustee will promptly notify the Issuer in writing of any Definitive Notes selected for redemption and, in the case of any Definitive Note selected for partial redemption or purchase, the principal amount thereof to be redeemed. No Notes in principal amounts equal to or less than the Minimum Dollar Denomination can be redeemed in part.
Section 3.03 Notice of Optional Redemption.
(a)Except for redemption pursuant to Section 3.07(e), notices of optional redemption will be given at least 30 but not more than 60 days before the redemption date to each Holder of Notes to be redeemed in accordance with Section 12.02, except that redemption notices may be given more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture.
(b)If any Note is to be optionally redeemed, the notice of redemption that relates to that Note will state:
(i)the clause of this Indenture pursuant to which the redemption shall occur;
(ii)the redemption date;
(iii)the principal amount of Notes to be redeemed;
(iv)the redemption price;
(v)applicable CUSIP numbers;
(vi)a statement that the conditions precedent to such redemption have been satisfied.
(c)At the Issuer’s written request delivered at least 35 days prior to the redemption date unless the Trustee consents to a shorter period, the Trustee will give the notice of optional redemption in the Issuer’s name and at its expense; in such event, the Issuer shall provide the Trustee with the information required by this Section 3.03.
(d)If any optional redemption or notice is subject to satisfaction of one or more conditions precedent, the notice shall state that, in the Issuer’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied on or prior to one Business Day prior to the redemption date, or by the redemption date so delayed.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is given in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price and interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date unless the Issuer defaults in the payment of the redemption price or accrued interest or any Additional Amounts.
Section 3.05 Deposit of Redemption Price.
On or prior to 11:00 a.m., New York City time, on the Business Day immediately preceding the redemption date, the Issuer will deposit with the Trustee or with the Paying Agent, money sufficient to pay the redemption price of and accrued interest on all Notes to be redeemed on the redemption date. The Trustee or the Paying Agent will promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the redemption price of, and accrued interest on, all Notes to be redeemed following the redemption date.
If the Issuer complies with the provisions of the preceding paragraph, on and after the redemption date, interest will cease to accrue on the Notes or the portions of Notes called for redemption. If a 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 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 is not so paid upon surrender for redemption because of the failure of the Issuer to comply with the preceding paragraph, interest 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 4.01 hereof.
Section 3.06 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Issuer will issue and, upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the expense of the Issuer a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered.
Section 3.07 Optional Redemption.
(a)Except pursuant to Sections 3.07(b) through 3.07(e) and 4.15(f), the Notes will not be optionally redeemable by the Issuer; provided, however, the Issuer may acquire the Notes by means other than an optional redemption.
(b)At any time and from time to time prior to April 15, 2024, the Issuer may redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus the Applicable Premium, plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of Holders of record on the record date to receive interest due on the related interest payment date).
(c)At any time and from time to time on or after April 15, 2024, the Issuer may redeem the Notes, in whole or in part, at the redemption prices (expressed as a percentage of principal amount) set forth below, plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of Holders of record on the record date to receive interest due on the related interest payment date):
| | | | | |
| Period Beginning April 15, | Price |
2024 | 102.000% |
2025 | 101.000% |
2026 and thereafter | 100.000% |
(d)At any time and from time to time prior to April 15, 2024, the Issuer may redeem up to 40% of the principal amount of the outstanding Notes (including Additional Notes, if any) with the net cash proceeds of one or more Equity Offerings at a redemption price (expressed as a percentage of principal amount) of 104.000%, plus accrued and unpaid interest, if any, to, but excluding, the redemption date; provided that (i) at least 60% of the aggregate principal amount of Notes issued on the Issue Date and any Additional Notes originally issued under this Indenture after the Issue Date remains outstanding immediately after each such redemption, and (ii) notice of any such redemption is given to the Holders within 90 days of the closing of each such Equity Offering.
(e)The Issuer may, at its option, redeem the Notes, in whole but not in part, at any time upon not less than 15 days’ nor more than 30 days’ notice to the Holders (which notice shall be irrevocable and given in accordance with Section 3.03), at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the redemption date, premium, if any, and all Additional Amounts, if any, then due and which will become due on the date of redemption as a result of the redemption or otherwise, if the Issuer determines in good faith that the Issuer or any Guarantor is, or on the next date on which
any amount would be payable in respect of the Notes, would be obligated to pay Additional Amounts in respect of the Notes pursuant to the terms and conditions thereof (but, in the case of a Guarantor, only if the payment giving rise to such requirement cannot be made by the Issuer or another Guarantor without the obligation to pay Additional Amounts), which the Issuer or such Guarantor, as the case may be, cannot avoid by the use of reasonable measures available to it (including, without limitation, making payment through a Paying Agent located in another jurisdiction), as a result of:
(1) any change in, or amendment to, the laws or treaties (or any regulations, official guidance or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction affecting taxation which becomes effective on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction that arises after the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under this Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder); or
(2) any change in the official application, administration, or interpretation of the laws, treaties, regulations, official guidance or rulings of any Relevant Taxing Jurisdiction (including a holding, judgment, or order by a court of competent jurisdiction), on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction that arises after the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under this Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder) (each of the foregoing clauses (1) and (2), a “Change in Tax Law”).
Notwithstanding the foregoing, the Issuer may not redeem the Notes under this provision if a Relevant Taxing Jurisdiction changes under this Indenture and the Issuer is obligated to pay Additional Amounts as a result of a Change in Tax Law of such Relevant Taxing Jurisdiction which was officially announced at the time the latter became a Relevant Taxing Jurisdiction.
In the case of a Guarantor that becomes a party to this Indenture after the Issue Date or a successor Person (including a surviving entity), the Change in Tax Law must become effective after the date that such entity (or another Person organized or resident in the same jurisdiction) first makes a payment on the Notes.
Notwithstanding the foregoing, no such notice of redemption will be given (a) earlier than 90 days prior to the earliest date on which the Issuer or any Guarantor, would be obliged to make such payment of Additional Amounts or withholding if a payment in respect of the Notes or the relevant Note Guarantee, as the case may be, were then due and (b) unless at the time such notice is given, the obligation to pay Additional Amounts remains in effect.
Prior to the giving of any notice of redemption pursuant to this Section 3.07(e), the Issuer will deliver to the Trustee:
(1) an Officers’ Certificate stating that the Issuer is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Issuer so to redeem have occurred (including that such obligation to pay such Additional Amounts cannot be avoided by the Issuer or any Guarantor or surviving entity taking reasonable measures available to it); and
(2) a written opinion of independent tax advisers of recognized standing qualified under the laws of the Relevant Taxing Jurisdiction to the effect that the Issuer or a Guarantor or surviving entity, as the case may be, is or would be obligated to pay such Additional Amounts as a result of a Change in Tax Law.
The foregoing provisions shall apply mutatis mutandis to any successor Person, after such successor Person becomes a party to this Indenture, with respect to a Change in Tax Law occurring after the time such successor Person becomes a party to this Indenture.
(f)Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.05 hereof.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes.
(a)The Issuer will pay or cause to be paid the principal of, premium, if any, and interest on, the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest will be considered paid on the date due if the Paying Agent, if other than the Issuer or a Subsidiary thereof, holds as of 11:00 a.m. Eastern Time on the Business Day prior to the due date money deposited by the Issuer in immediately available funds and designated for and sufficient to pay all principal of, premium, if any, and interest then due and the Paying Agent is not prohibited from paying such money to the Holders on the due date pursuant to the terms of this Indenture.
The Issuer will pay interest on overdue principal at the rate specified therefor in the Notes, and it shall pay interest on overdue installments of interest at the same rate borne by the Notes to the extent lawful.
(b) All payments that the Issuer makes under or with respect to the Notes and that any Guarantor makes under or with respect to any Note Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other similar governmental charges (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of (i) any jurisdiction in which the Issuer or any Guarantor is incorporated, organized, engaged in business for tax purposes or otherwise resident for tax purposes or from or through which the Issuer or any Guarantor, as applicable, makes any payment on the Notes or any department, political subdivision or other governmental authority of or in such jurisdiction having the power to tax (each, a “Relevant Taxing Jurisdiction”), unless withholding or deduction is then required by law or by the interpretation or administration of law. If the Issuer or any Guarantor is required (as determined in the good faith discretion of the Issuer or Guarantor) to withhold or deduct any amount on account of Taxes imposed or levied by or on behalf of any jurisdiction (or any department, political subdivision or other governmental authority thereof or therein having the power to tax), the Issuer or Guarantor shall be entitled to make such deduction or withholding from any payment made under or with respect to the Notes, and, to the extent such Tax is imposed by a Relevant Taxing Jurisdiction, the Issuer or such Guarantor, as the case may be, shall pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by each Holder or beneficial owner of the Notes after such withholding or deduction (including any such deduction or withholding from such Additional Amounts) will be not less than the amount that would have been received by the Holder or beneficial owner if such Taxes had not been required to be withheld or deducted.
(i)Neither the Issuer nor any Guarantor shall, however, pay Additional Amounts to a Holder or beneficial owner of Notes in respect or on account of:
(A)any Taxes that would not have been imposed or levied but for the existence of any present or former connection between the relevant Holder or beneficial owner (or between a fiduciary, settler, beneficiary, member or shareholder of, or possessor of a power over, the relevant Holder or beneficial owner, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) with such Relevant Taxing Jurisdiction (including, without limitation, as a result of being resident for Tax purposes, or being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction), other than the mere receipt or holding of Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes, this Indenture or any Note Guarantee;
(B)any Taxes that are imposed or withheld by reason of the failure of the Holder or Beneficial Owner, following the Issuer’s written request addressed to the Holder (and made at a time that would enable the Holder or beneficial owner acting reasonably to comply with that request) to comply with any certification, identification, tax clearance or similar requirements, whether required or imposed by statute, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(C)any estate, inheritance, gift, excise, sales, transfer, personal property or similar Taxes;
(D)any Tax which is payable other than by deduction or withholding from payments made under or with respect to the Notes or Note Guarantees;
(E)any Tax imposed on or with respect to any payment by the Issuer or a Guarantor to the Holder if such Holder is a fiduciary or partnership or person other than the sole beneficial owner of such payment to the extent that Taxes would not have been imposed on such payment had the beneficiary, partner or other beneficial owner directly held the Note;
(F)any Tax imposed, withheld or levied pursuant to the Dutch withholding tax act 2021 (Wet bronbelasting 2021) (a tax which applies to interest payments made or deemed to be
made to certain affiliated entities all within the meaning of the Dutch Withholding Tax Act 2021);
(G)any Tax that is imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of the Notes for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the Beneficial Owner or Holder thereof would have been entitled to Additional Amounts had the Notes been presented for payment on any date during such 30-day period;
(H)any Taxes imposed pursuant to Sections 1471 to 1474 (inclusive) of the Code (or any amended or successor version of such sections that is substantially comparable), including any current or future Treasury regulations or other official interpretations or guidance thereunder or any agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, any intergovernmental agreements entered into in connection with the foregoing, and any rules or practices adopted pursuant to any such intergovernmental agreement, and any provisions of any treaty or convention among governmental authorities implementing such sections of the Code; or
(I)any combination of the items above.
(ii)The Issuer and each Guarantor shall (A) make such Tax withholding or deduction as is required by applicable law to be made in respect of any payment by it under or with respect to the Notes and (B) remit the full amount so deducted or withheld to the relevant taxing authority in accordance with applicable law.
(iii)At least 30 calendar days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Issuer and any Guarantor determines that it shall be obligated to withhold or deduct Taxes from such payment for which it will be required to pay Additional Amounts (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it will be promptly thereafter), the Issuer shall deliver to the Trustee an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable and shall set forth such other information (other than the identities of Holders and Beneficial Owners) necessary to enable the Trustee or the Paying Agent, as the case may be, to pay such Additional Amounts to Holders on the relevant payment date.
(iv)The Issuer or the relevant Guarantor shall furnish to the Trustee and each relevant Holder within a reasonable period of time certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor, as the case may be, of any Taxes imposed or levied by a Relevant Taxing Jurisdiction that were
withheld or deducted from a payment made by the Issuer or such Guarantor, as the case may be, under or with respect to the Notes. If, notwithstanding the reasonable best efforts of the Issuer or such Guarantor to obtain such receipts, the same are not obtainable, then the Issuer or such Guarantor shall provide the Trustee and the relevant Holders with other evidence reasonably satisfactory to the Trustee and the relevant Holders of such payment by the Issuer or such Guarantor.
(v)The Issuer and each Guarantor shall pay and indemnify the Holders and the Trustee (if applicable) for (A) any present or future stamp, issue, registration, court or documentary, excise or property taxes or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the execution, issue, delivery or registration of the Notes, any Note Guarantee or this Indenture or any other document or instrument referred to hereunder and any such taxes, charges, duties or similar levies imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes, such Note Guarantee or this Indenture or any such other document or instrument following the occurrence of any Event of Default, and (B) any stamp, court, or documentary taxes (or similar charges or levies) imposed with respect to the receipt of any payments with respect to the Notes or such Note Guarantee. Neither the Issuer nor any Guarantor shall, however, pay such amounts that are imposed on or result from a sale or other transfer or disposition by a Holder or Beneficial Owner (other than the initial resale of the Notes by the initial purchasers).
(vi)This Section 4.01(b) shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer or any Guarantor is organized, incorporated or otherwise resident for tax purposes and any political subdivision or taxing authority or agency thereof or therein or any jurisdiction from or through which such Person makes any payment on the Notes (or any Note Guarantee) or any political subdivision thereof or therein.
(c)In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to this Indenture in effect from time to time (“Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Issuer agrees (i) to provide to the Trustee and each Paying Agent sufficient information about the parties or transactions (including any modification to the terms of such transactions) so the Trustee and each Paying Agent can determine whether it has tax related obligations under Applicable Law, (ii) that the Trustee and each Paying Agent shall be entitled to make any withholding or deduction from payments to the extent necessary to comply with Applicable Law for which the Trustee and each Paying Agent shall not have any liability, and (iii) to hold harmless the Trustee and each Paying Agent for any losses it may suffer due to the actions it takes to comply with Applicable Law. The terms of this Section 4.01(c) shall survive the termination, defeasance or discharge of this Indenture.
Section 4.02 Maintenance of Office or Agency.
The Issuer will maintain in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served (other than the type contemplated by Section 12.09). The Issuer 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 fails to maintain any such required office or agency or fails 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.
The Issuer may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission will in any manner relieve the Issuer of its obligation to maintain an office or agency in the Borough of Manhattan, the City of New York 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.
The Issuer hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Issuer in accordance with Section 2.03 hereof.
Section 4.03 Reports.
(a)The Issuer will furnish to the Trustee and the Holders of the Notes in the manner specified below:
(i)within 90 days after the end of each fiscal year, an annual report of the Issuer containing substantially all the financial information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Issuer had been a reporting company under the Exchange Act, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” Section and a report on the annual financial statements by the Issuer’s independent registered public accounting firm; provided that such annual report will not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(ii)within 45 days after the end of each of the first three fiscal quarters of each fiscal year, quarterly reports of the Issuer containing substantially all the financial information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Issuer had been a reporting company under the Exchange Act, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” Section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(iii)within ten Business Days after the occurrence of each event that would have been required to be reported in a current report on Form 8-K under the Exchange Act if the Issuer had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required to be contained in a current report on Form 8-K under the Exchange Act pursuant to Sections 1, 2 (other than Item 2.02) and 4 and Items 5.01, 5.02 (other than any compensation-related information) and 5.03 of Form 8-K if the Issuer had been a reporting company under the Exchange Act; provided, however, that no such current report will be required to (i) be furnished if the Issuer determines in its good faith judgment that such event is not material to Holders or the business, assets, operations, financial positions or prospects of the Issuer and its Subsidiaries, taken as a whole, or if the Issuer determines in its good faith judgment that such disclosure would otherwise cause material competitive harm to the business, assets, operations, financial position or prospects of the Issuer and its Subsidiaries, taken as a whole; provided further that such non-disclosure shall be limited only to those specific provisions that would cause material competitive harm and not the occurrence of the event itself or (ii) contain financial statements or pro forma financial statements.
(b)None of the reports referenced in Section 4.03(a) will be required to comply with Section 302 or Section 404 of the Sarbanes-Oxley Act of 2002, or related Items 307 and 308 of Regulation S-K promulgated by the Commission, or Item 302 of Regulation S-K or Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or Item 601 of Regulation S-K (with respect to exhibits), in each case, as in effect on the Issue Date, and will not be required to contain the separate financial information for Guarantors contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the Commission or to provide financial statements in interactive data format using the eXtensible Business Reporting Language.
(c)To the extent not satisfied by Section 4.03(a), for so long as any Notes are outstanding and constitute “restricted securities” within the meaning of Rule 144 under the Securities Act, the Issuer will furnish to Holders and to securities analysts and prospective purchasers of the Notes in connection with any sale thereof, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this Section 4.03(c) and Section 4.03(a) may be satisfied by (i) delivering such information electronically to the Trustee and (ii) posting copies of such information on a website (which may be nonpublic and may be maintained by the Issuer or a third party) to which access will be given to Holders and prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)) that certify their status as such to the reasonable satisfaction of the Issuer and who acknowledge the confidentiality of the information.
(d)Notwithstanding Section 4.03(a) through (c), at all times that either the Issuer or Parent is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the reporting requirements of this Section 4.03 shall be satisfied through the filing with the Commission within the time periods specified in the Commission’s rules and regulations that are then applicable to the Issuer or Parent, as applicable, all the reports on Form 10-K, Form 10-Q and Form 8-K that either the Issuer or Parent, as applicable, is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, in each case in a manner that
complies in all material respects with the requirements specified in the applicable forms promulgated by the Commission.
(e)In the event that the reporting obligation of this Section 4.03 are satisfied through the reports of Parent in accordance with Section 4.03(d) and Parent or any other direct or indirect parent company of the Issuer holds any material assets other than cash, Cash Equivalents and the Capital Stock of the Issuer or any other direct or indirect parent of the Issuer (and performs the related incidental activities associated with such ownership), then the reports of Parent referenced in Section 4.03(d) shall be accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Parent and such other parent companies, on the one hand, and the information relating to the Issuer and its Subsidiaries on a stand-alone basis, on the other hand.
(f)Notwithstanding anything herein to the contrary, the Issuer will not be deemed to have failed to comply with any of its obligations hereunder for purposes of Section 6.01(a)(iii) until 90 days after the date any report hereunder is due.
(g)Delivery of the above reports to the Trustee is for informational purposes only and the Trustee’s receipt of such reports shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including compliance by the Issuer, any Guarantor or any Subsidiary with any of its covenants in this Indenture (as to which the Trustee is entitled to rely exclusively on an Officers’ Certificate) or any other agreement or document. The Trustee shall have no obligation to determine if and when the Issuer has satisfied its reporting obligations under this Section 4.03. The Issuer shall (i) provide the Trustee with prompt written notification at such time that the Issuer commences or ceases to satisfy its reporting obligation under Section 4.03 through the reports of the Issuer or Parent, as applicable, in accordance with Section 4.03(d) or (ii) provide the Trustee and the Holders the information set forth in Section 4.03(a).
Section 4.04 Compliance Certificate.
(a)The Issuer shall deliver to the Trustee within 120 days after the end of each fiscal year of the Issuer ending December 31, an Officers’ Certificate stating that in the course of the performance by each signer of such signer’s duties as an Officer of the Issuer such signer would normally have knowledge of any Default and whether or not such signer knows of any Default that occurred during such period. If any such signer does, the certificate shall describe the Default, its status and what action the Issuer is taking or proposes to take with respect thereto. The Issuer also shall comply with Section 314(a)(4) of the TIA.
(b)So long as any of the Notes are outstanding, the Issuer will deliver to the Trustee, forthwith upon any Officer becoming aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event of Default and the remedial action the Issuer proposes to take in connection therewith.
Section 4.05 Corporate Existence.
Except as otherwise permitted by Article 5, the Issuer shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence in accordance with its organizational documents.
Section 4.06 [Intentionally Omitted].
Section 4.07 [Intentionally Omitted].
Section 4.08 Limitation on Sale and Lease-Back Transactions.
(a)The Issuer will not, and will not permit any of its Subsidiaries, directly or indirectly, to enter into any sale and lease-back transaction for the sale and leasing back of any Principal Property, whether now owned or hereafter acquired, unless:
(1) such transaction was entered into prior to or within 12 months after the Issue Date;
(2) such transaction was for the sale and leasing back to the Issuer or a Subsidiary of any Principal Property;
(3) such transaction involves a lease of a Principal Property executed by the time of or within 12 months after the latest of the acquisition, the completion of construction or improvement, or the commencement of commercial operation, of such Principal Property;
(4) such transaction involves a lease for not more than three years (or which may be terminated by the Issuer or the applicable Subsidiary within a period of not more than three years);
(5) the Issuer or the applicable Subsidiary would be entitled to incur Indebtedness secured by a mortgage on the property to be leased in an amount equal to Attributable Liens with respect to such sale and lease-back transaction without equally and ratably securing the Notes pursuant to Section 4.12(a); or
(6) the Issuer or the applicable Subsidiary applies an amount equal to the net proceeds from the sale of the Principal Property to the purchase of another Principal Property or to the retirement or other repayment or prepayment of long-term Indebtedness within 365 calendar days before or after the effective date of any such sale and lease-back transaction; provided that in lieu of applying such amount to such retirement, repayment or prepayment, the Issuer or any Subsidiary may deliver Notes to the Trustee for cancellation, such Notes to be credited at the cost thereof to the Issuer or such Subsidiary.
(b)Notwithstanding Section 4.08(a), the Issuer and its Subsidiaries may enter into any sale and lease-back transaction which would otherwise be subject to the foregoing restrictions if after giving effect thereto and at the time of determination, Aggregate Debt does not exceed an amount equal to the greater of (a) $3,250,000,000, and (b) 3.25 times EBITDA of the Issuer for the Measurement Period immediately preceding the closing date of the sale and lease-back transaction.
Section 4.09 Limitation on Subsidiary Debt.
(a)The Issuer will not permit any of its Subsidiaries to create, assume, incur, Guarantee or otherwise become liable for or suffer to exist any Indebtedness (any Indebtedness of a Subsidiary of the Issuer that is not a Guarantor, “Subsidiary Debt”), without Guaranteeing the payment of the principal of, premium, if any, and interest on the Notes on an unsecured unsubordinated basis.
(b)Section 4.09(a) shall not apply to, and there shall be excluded from Indebtedness in any computation under such restriction, Subsidiary Debt constituting:
(1) Indebtedness of a Person existing at the time such Person is merged into or consolidated with or otherwise acquired by any Subsidiary of the Issuer or at the time of a sale, lease or other disposition of the properties and assets of such Person (or a division thereof) as an entirety or substantially as an entirety to any Subsidiary of the Issuer and is assumed by such Subsidiary; provided that any such Indebtedness was not incurred in contemplation thereof and is not Guaranteed by any other Subsidiary of the Issuer (other than any Guarantee existing at the time of such merger, consolidation or sale, lease or other disposition of properties and assets and that was not issued in contemplation thereof);
(2) Indebtedness of a Person existing at the time such Person becomes a Subsidiary of the Issuer; provided that any such Indebtedness was not incurred in contemplation thereof;
(3) Indebtedness owed to the Issuer or any Subsidiary of the Issuer;
(4) any Subsidiary Debt represented by any Guarantee of, or any other Indebtedness under, the 2023 Notes, the 2024 Notes, the 2025 Notes, the 2030 Notes or the 2031 Notes or any Indebtedness or Guarantees under Permitted Bank Indebtedness;
(5) Indebtedness or Guarantees in respect of netting services, business credit card programs, overdraft protection and other treasury, depository and cash management services or incurred in connection with any automated clearing-house transfers of funds or other fund transfer or payment processing services;
(6) Indebtedness or Guarantees arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that any such Indebtedness or Guarantee is extinguished within five Business Days within its incurrence;
(7) Indebtedness or Guarantees in respect of any Qualified Securitization Financing;
(8) reimbursement obligations incurred in the ordinary course of business;
(9) client advances and deposits received in the ordinary course of business;
(10) Indebtedness or Guarantees incurred by Foreign Subsidiaries in an amount not to exceed $300,000,000 at any time outstanding;
(11) Indebtedness or Guarantees incurred (a) in respect of workers’ compensation claims, payment obligations in connection with health or other types of social security benefits, unemployment or other insurance obligations, reclamation and statutory obligations, (b) in connection with the financing of insurance premiums or self-insurance obligations or take-or-pay obligations
contained in supply agreements, and (c) in respect of guarantees, warranty or contractual service obligations, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, letters of credit and banker’s acceptances for operating purposes or to secure any Indebtedness or other obligations referred to in clauses (1) through (9) or this clause (11), payment (other than for payment of Indebtedness) and completion guarantees, in each case provided or incurred (including Guarantees thereof) in the ordinary course of business; or
(12) Indebtedness outstanding on the Issue Date not referred to in clause (4) above and any extension, renewal, replacement, refinancing or refunding of any Indebtedness existing on the Issue Date or referred to in clauses (1), (2) and (4); provided (x) that any Indebtedness incurred to so extend, renew, replace, refinance or refund has a Weighted Average Life to Maturity at the time such Indebtedness is incurred that is not less than the remaining Weighted Average Life to Maturity of the Indebtedness referred to in this clause or clauses (1), (2) and (4) above being extended, renewed, replaced, refinanced or refunded, and (y) the principal amount of the Indebtedness incurred to so extend, renew, replace, refinance or refund shall not exceed the principal amount of the Indebtedness being extended, renewed, replaced, refinanced or refunded plus any premium or fee (including tender premiums) or other reasonable amounts payable, plus all accrued interest on such Indebtedness and the amount of fees, expenses and other costs incurred, in connection with any such extension, renewal, replacement, refinancing or refunding.
(c)Notwithstanding Sections 4.09(a) and (b), the Issuer or any Subsidiary of the Issuer may, create, incur, issue, assume, Guarantee or otherwise become liable for or suffer to exist Indebtedness that would otherwise be subject to the restrictions set forth in Sections 4.09(a) and (b), without Guaranteeing the Notes, if after giving effect thereto, Aggregate Debt does not exceed an amount equal to the greater of (a) $3,250,000,000, and (b) 3.25 times EBITDA of the Issuer for the Measurement Period immediately preceding the date of the creation or incurrence of the Subsidiary Debt. Any Subsidiary also may, without Guaranteeing the payment of the principal of, premium, if any, and interest on the Notes, extend, renew, replace, refinance or refund any Subsidiary Debt permitted pursuant to the preceding sentence; provided (x) that any Subsidiary Debt incurred to so extend, renew, replace, refinance or refund has a Weighted Average Life to Maturity at the time such Subsidiary Debt is incurred that is not less than the remaining Weighted Average Life to Maturity of the Subsidiary Debt being extended, renewed, replaced, refinanced or refunded, and (y) the principal amount of the Subsidiary Debt incurred to so extend, renew, replace, refinance or refund shall not exceed the principal amount of Subsidiary Debt being extended, renewed, replaced, refinanced or refunded plus any premium or fee (including tender premiums) or other reasonable amounts payable, plus all accrued interest on such Subsidiary Debt and the amount of fees, expenses and other costs incurred, in connection with any such extension, renewal, replacement, refinancing or refunding.
(d)Notwithstanding anything to the contrary, (i) subject to clause (ii) below, in the event that any Wholly Owned Subsidiary of the Issuer Guarantees the obligations of any borrower under any Credit Agreement, the Issuer shall cause such Wholly Owned Subsidiary, subject to the receipt of any necessary regulatory approvals, to provide a Note Guarantee by executing and delivering to the Trustee a supplemental indenture and a Notation of Guarantee in accordance with the terms of this Indenture, and (ii) STFC shall not be a guarantor of the Notes on the Issue Date, and in no event shall STFC be required to provide a Note Guarantee unless it shall have become a guarantor of the Existing Notes.
Section 4.10 [Intentionally Omitted].
Section 4.11 [Intentionally Omitted].
Section 4.12 Limitation on Liens.
(a)The Issuer shall not, and shall not permit any of its Subsidiaries, directly or indirectly, to enter into, create, incur, assume or suffer to exist any Lien on any Principal Property, whether now owned or hereafter acquired, in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except:
(1) Liens existing as of the Issue Date;
(2) Liens granted after the Issue Date created in favor of the Holders of the Notes;
(3) Liens created in substitution of, or as replacements for, any Liens described in clauses (1) and (2) above; provided that based on a good faith determination of Senior Management, the Principal Property encumbered under any such substitute or replacement Lien is substantially similar in nature to the Principal Property encumbered by the otherwise permitted Lien which is being replaced; and
(4) Permitted Liens.
(b)Notwithstanding Section 4.12(a), the Issuer or any Subsidiary of the Issuer may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in Section 4.12(a) if after giving effect thereto, Aggregate Debt does not exceed an amount equal to the greater of (a) $3,250,000,000, and (b) 3.25 times EBITDA of the Issuer for the Measurement Period immediately preceding the date of the creation or incurrence of the Lien. The Issuer or any Subsidiary of the Issuer also may, without equally and ratably securing the Notes, create or incur Liens that extend, renew, substitute or replace (including successive extensions, renewals, substitutions or replacements), in whole or in part, any Lien permitted pursuant to the preceding sentence.
Section 4.13 Business Activities.
The Issuer shall not, and shall not permit any Subsidiary to, engage in any business other than Permitted Businesses, except to such extent as would not be material to the Issuer and its Subsidiaries taken as a whole.
Section 4.14 Payment of Taxes and Other Claims.
The Issuer shall, and shall cause each of its Subsidiaries to, pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (a) 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 (b) all lawful claims for labor, materials and supplies except, in each case, any such tax, assessment, charge or claim as is being contested in good faith by appropriate actions or where the failure to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim is not materially adverse to the Holders.
Section 4.15 Offer to Repurchase upon Change of Control.
(a)If a Change of Control occurs, unless the Issuer at such time has given notice of redemption under Section 3.07(b), Section 3.07(c) or Section 3.07(e) with respect to all outstanding Notes, each Holder will have the right to require the Issuer to repurchase all or any part (in a minimum principal amount of $200,000 and integral multiples of $1,000 in excess thereof) of that Holder’s Notes pursuant to an offer to purchase on the terms set forth in this Indenture (the “Change of Control Offer”). In the Change of Control Offer, the Issuer will offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest on the Notes repurchased, to, but excluding, the Change of Control Payment Date (the “Change of Control Payment”). Within 30 days following any Change of Control, unless the Issuer at such time has given notice of redemption under Section 3.07(b), Section 3.07(c) or Section 3.07(e) with respect to all outstanding Notes, the Issuer will give notice to the Trustee and each Holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the date specified in the notice (the “Change of Control Payment Date”), which date will be no earlier than 30 days and no later than 60 days from the date such notice is given, pursuant to the procedures required by this Indenture and described in such notice. The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.15 by virtue of such conflict.
(b)On or prior to 11:00 a.m., New York City time, on the Business Day immediately preceding the Change of Control Payment Date, the Issuer shall, to the extent lawful, deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered.
(c)On the Change of Control Payment Date, the Issuer shall, to the extent lawful:
(i)accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer; and
(ii)deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Issuer.
(d)The Paying Agent shall promptly deliver to each Holder properly tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each new Note will be in a minimum principal amount of $200,000 and integral multiples of $1,000 in excess thereof. The Issuer shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(e)The Issuer shall not be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer or (ii) a valid notice of redemption for all of the Notes has been given, or will be given contemporaneously with the Change of Control, pursuant to Section 3.07(b), Section 3.07(c) or Section 3.07(e) unless and until such notice has been
validly revoked (in the case of a redemption pursuant to Section 3.07(b) or Section 3.07(c)) or there is a default in the payment of the applicable redemption price. A Change of Control Offer may be made in advance of a Change of Control or conditional upon the occurrence of a Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made.
(f)In the event that Holders of not less than 90% in aggregate principal amount of the then outstanding Notes accept a Change of Control Offer and the Issuer (or any third party making such Change of Control Offer in lieu of the Issuer as described above) purchases all of the Notes held by such Holders, the Issuer shall have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the Change of Control Payment Date relating to the Change of Control Offer described above, to redeem all of the Notes that remain outstanding following such Change of Control Payment Date in accordance with Article 3 at a redemption price equal to the Change of Control Payment, plus to the extent not included in the Change of Control Payment, accrued and unpaid interest on the Notes that remain outstanding, to, but excluding, the date of purchase.
Section 4.16 Payments for Consent.
The Issuer shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid and is paid to all Holders that so consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement.
Section 4.17 Additional Guarantees.
(a)On or after the Issue Date, the Issuer shall cause each Subsidiary that is required to Guarantee the payment of principal of, premium, if any, and interest on the Notes pursuant to Section 4.09 to become a Guarantor, within 10 Business Days of the creation, assumption, incurrence or Guarantee of the applicable Subsidiary Debt and the Issuer shall cause each such Subsidiary to execute and deliver to the Trustee within such 10 Business Day period (x) a supplemental indenture in substantially the form attached hereto as Exhibit E and (y) a Notation of Guarantee in substantially the form attached hereto as Exhibit D, pursuant to which such Subsidiary will unconditionally Guarantee, on a joint and several basis, the full and prompt payment of the principal of, premium, if any and interest on the Notes and all other obligations under this Indenture on the same terms and conditions as those set forth in this Indenture.
(b)Each Note Guarantee will be limited to an amount not to exceed the maximum amount that can be Guaranteed by that Subsidiary without rendering the Note Guarantee, as it relates to such Subsidiary, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
(c)Each Note Guarantee shall be automatically released in accordance with the provisions of this Indenture described under Article 11.
Section 4.18 [Intentionally Omitted].
Section 4.19 Suspension of Guarantees Upon Change in Ratings.
(a)If on any date following the Issue Date (1) the Notes are rated Investment Grade by either of the Rating Agencies; and (2) no Default or Event of Default shall have occurred and be continuing, then, beginning on such date (the “Suspension Date”) and subject to the provisions of Section 4.19(b), the Note Guarantees shall be deemed released and the Issuer’s obligation under Section 4.17 shall be suspended (collectively, the “Suspended Provisions”).
(b)During any Suspension Period, any Subsidiary Debt incurred prior to or outstanding as of the Suspension Date shall be deemed to have been incurred in compliance with Section 4.09.
(c)In the event that the Notes are rated below Investment Grade by both Rating Agencies or an Event of Default shall have occurred and be continuing, the Suspended Provisions will be reinstituted as of and from the date on which the Notes are no longer rated Investment Grade by both Rating Agencies or an Event of Default has occurred and is continuing (any such date, a “Reversion Date”). The period of time between the Suspension Date and the Reversion Date is referred to as the “Suspension Period.” Notwithstanding that the Suspended Provisions may be reinstated, no Default or Event of Default will be deemed to have occurred as a result of a failure to comply with the Suspended Provisions during the Suspension Period.
(d)The Issuer and its Subsidiaries may honor any contractual commitments to take actions following a Reversion Date without causing a Default or Event of Default; provided that such contractual commitments were entered into during the Suspension Period and not in contemplation of a reversion of the Suspended Provisions.
(e)The Issuer shall provide an Officers’ Certificate to the Trustee indicating the commencement of any Suspension Period or the occurrence of any Reversion Date. The Trustee will have no obligation to (i) independently determine or verify if such events have occurred, (ii) make any determination regarding the impact of actions taken during the Suspension Period on the Issuer’s and its Subsidiaries’ future compliance with their covenants or (iii) notify the Holders of the commencement of the Suspension Period or the Reversion Date.
Section 4.20 Compliance with Laws.
The Issuer shall comply, and shall cause each of its Subsidiaries to comply, with all applicable statutes, rules, regulations, orders and restrictions of the United States, all states and municipalities thereof, and of any governmental department, commission, board, regulatory authority, bureau, agency and instrumentality of the foregoing, in respect of the conduct of their respective businesses and the ownership of their respective properties, except, in any such case, to the extent the failure to so comply would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of the Issuer and its Subsidiaries taken as a whole.
Section 4.21 Waiver of Stay, Extension or Usury Laws.
The Issuer and each Guarantor covenants (to the extent permitted by applicable law) 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 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 permitted by applicable law) the Issuer and each Guarantor hereby expressly waives all benefit or advantage of any such law, and covenants (to the extent permitted by applicable law) that it shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
(a)The Issuer may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not it is the surviving entity); 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:
(i)either: (A) the Issuer is the surviving entity; 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 has been made is a corporation or limited liability company organized or existing under the laws of any member state of the European Union, the United Kingdom (including any constituent country thereof), the United States, any state of the United States or the District of Columbia (the Issuer or such Persons, as applicable, including the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, as the case may be, being herein called the “Successor Company”); provided that at any time the Successor Company is the issuer of the Notes and is a limited liability company, there shall be a co-issuer of the Notes that is a corporation that satisfies the requirements of this Section 5.01(a);
(ii)the Successor Company (if other than the Issuer) assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to a supplemental indenture;
(iii)immediately after such transaction, no Default or Event of Default exists; and
(iv)the Issuer delivers an Officers’ Certificate and Opinion of Counsel stating that such transaction complies with this Indenture and, if applicable, all conditions precedent in this Indenture to the execution of the supplemental indenture have been satisfied.
Except as permitted under Article 10, no Guarantor may consolidate or merge with or into another Person unless (i) either (x) such Guarantor is the surviving entity or (y) the surviving entity (if other than such Guarantor) assumes all the obligations of such Guarantor under its Note Guarantee and this Indenture pursuant to a supplemental indenture in substantially the form attached hereto as Exhibit E, and (ii) immediately after such transaction, no Default or Event of Default exists.
(b)For purposes of this Article 5, the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Issuer, which properties and assets, if held by the Issuer instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Issuer on a consolidated basis, shall be deemed to be the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of the Issuer.
(c)For the avoidance of doubt, it is agreed that, for all purposes under this Indenture, a sale, transfer or disposition of the properties or assets of the Issuer and its Subsidiaries that, in the aggregate accounted for no more than two-thirds of the Issuer’s aggregate EBITDA, during the four most recent consecutive fiscal quarters prior to the date of such sale, transfer or disposition for which financial statements are available (as specified in an Officers’ Certificate delivered to the Trustee), shall be deemed not to be a sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of the Issuer.
(d)Upon the execution and delivery of the supplemental indenture referred to in Section 5.01(a)(ii) or the last sentence of Section 5.01(a), as applicable, the predecessor company shall be released from its obligations under this Indenture and the Successor Company (in the case of Section 5.01(a)(ii)) or the surviving entity (in the case of the last sentence of Section 5.01(a)), as applicable, shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer or the relevant Guarantor, as applicable, under this Indenture and the Notes or the relevant Note Guarantee, but, in the case of a lease of all or substantially all its assets to a Successor Company, the predecessor shall not be so released.
(e)Notwithstanding the foregoing, clause (iii) of Section 5.01(a) shall not apply to (A) a sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Issuer and its Subsidiaries, (B) any Subsidiary consolidating with, merging into or selling, assigning, transferring, conveying, leasing or otherwise disposing of all or part of its properties and assets to the Issuer or to another Subsidiary of the Issuer (provided that, in the event that such Subsidiary is a Guarantor, it may consolidate with, merge into or sell, assign, transfer, convey, lease or otherwise dispose of all or part of its properties and assets solely to the Issuer or another Guarantor) or (C) the Issuer merging with an Affiliate solely for the purpose and with the sole effect of reincorporating the Issuer in another jurisdiction.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
(a)Each of the following is an “Event of Default”:
(i)the Issuer defaults in payment when due and payable, upon redemption, acceleration or otherwise, of principal of, or premium, if any, on the Notes;
(ii)the Issuer defaults in the payment when due of interest on or with respect to the Notes and such default continues for a period of 30 days;
(iii)the Issuer defaults in the performance of, or breaches any covenant, warranty or other agreement contained in, this Indenture (other than a default in the performance or breach of a covenant, warranty or agreement which is specifically dealt with in clauses (i) or (ii) above) and such default or breach continues for a period of 60 days after the notice specified below;
(iv)a default under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any Indebtedness for money borrowed by the Issuer or any Subsidiary or the payment of which is Guaranteed by the Issuer or any Subsidiary of the Issuer (other than Indebtedness owed to the Issuer or a Subsidiary of the Issuer), whether such Indebtedness or Guarantee now exists or is created after the Issue Date, if (A) such default either (1) results from the failure to pay any such Indebtedness at its stated final maturity (after giving effect to any applicable grace periods) or (2) relates to an obligation other than the obligation to pay principal of any such Indebtedness at its stated final maturity and results in the holder or holders of such Indebtedness causing such Indebtedness to become due prior to its stated maturity and (B) the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness
in default for failure to pay principal at stated final maturity (after giving effect to any applicable grace periods), or the maturity of which has been so accelerated, aggregate in excess of $50,000,000 (or its foreign currency equivalent) at any one time outstanding;
(v)the Issuer or any Significant Subsidiary of the Issuer pursuant to or within the meaning of any Bankruptcy Law:
(A)commences a voluntary case;
(B)consents to the entry of an order for relief against it in an involuntary case;
(C)consents to the appointment of a custodian of it or for all or substantially all of its property;
(D)makes a general assignment for the benefit of its creditors;
(E)takes any comparable action under any foreign laws relating to insolvency;
(F)generally is not able to pay its debts as they become due; or
(G)takes any corporate action to authorize or effect any of the foregoing;
(vi)a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A)is for relief against the Issuer or any Significant Subsidiary of the Issuer in an involuntary case;
(B)appoints a custodian of the Issuer or any Significant Subsidiary of the Issuer or for all or substantially all of the property or assets of the Issuer or any Significant Subsidiary of the Issuer; or
(C)orders the liquidation of the Issuer or any Significant Subsidiary of the Issuer,
and the order or decree remains unstayed and in effect for 60 days;
(vii)the failure by the Issuer or any Significant Subsidiary of the Issuer to pay final judgments aggregating in excess of $50,000,000, which final judgments remain unpaid, undischarged and unstayed for a period of more than 60 days after the applicable judgment becomes final, and, with respect to any such judgments covered by insurance, an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly stayed; or
(viii)the Note Guarantee of a Significant Subsidiary of the Issuer or any group of Subsidiaries of the Issuer that, taken together as of the date of the most recent audited financial statements of the Issuer, would constitute a Significant Subsidiary of the Issuer ceases to be in full force and effect (except as contemplated by the terms hereof) or any Guarantor denies or disaffirms its obligations under this Indenture or any Note Guarantee, other than by reason of the
release of such Note Guarantee in accordance with the terms of this Indenture.
(b)If a Default for a failure to report or failure to deliver a required certificate in connection with another default (the “Initial Default”) occurs, then at the time such Initial Default is cured, such Default for a failure to report or failure to deliver a required certificate in connection with another default that resulted solely because of that Initial Default will also be cured without any further action.
(c)Any Default or Event of Default for the failure to comply with the time periods prescribed in Section 4.03 or otherwise to deliver any notice or certificate pursuant to any other provision of this Indenture shall be deemed to be cured upon the delivery of any such report required by Section 4.03 or such notice or certificate, as applicable, even though such delivery is not within the prescribed period specified in this Indenture.
Section 6.02 Acceleration.
(a)If an Event of Default specified in clause (v) or (vi) of Section 6.01(a) occurs and is continuing with respect to the Issuer, then all unpaid principal of, and premium, if any, and accrued and unpaid interest on all of the outstanding Notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
(b)If any Event of Default (other than an Event of Default specified in clauses (v) or (vi) of Section 6.01(a) with respect to the Issuer) shall occur and be continuing, the Trustee or the Holders of at least 25% in principal amount of outstanding Notes under this Indenture may declare the principal of, premium, if any, and accrued interest on such Notes to be immediately due and payable by notice in writing to the Issuer and the Trustee (if given by the Holders) specifying the respective Event of Default and that it is a “notice of acceleration,” and the same shall become immediately due and payable.
(c)Any notice of Default, notice of acceleration or instruction to the Trustee to provide a notice of Default, notice of acceleration or take any other action (a “Noteholder Direction”) provided by any one or more Holders of the Notes (other than a Regulated Bank) (each a “Directing Holder”) must be accompanied by a written representation from each such Holder to the Issuer and the Trustee that such Holder is not (or, in the case such Holder is DTC or its nominee, that such Holder is being instructed solely by beneficial owners that have represented to such Holder that they are not) Net Short (a “Position Representation”), which representation, in the case of a Noteholder Direction relating to a notice of Default shall be deemed repeated at all times until the resulting Event of Default is cured or otherwise ceases to exist or the Notes are accelerated. In addition, each Directing Holder must, at the time of providing a Noteholder Direction, covenant to provide the Issuer with such other information as the Issuer may reasonably request from time to time in order to verify the accuracy of such Holder’s Position Representation within five Business Days of request therefor (a “Verification Covenant”). In any case in which the Holder of the Notes is DTC or its nominee, any Position Representation or Verification Covenant required hereunder shall be provided by the beneficial owner of the Notes in lieu of DTC or its nominee.
If, following the delivery of a Noteholder Direction, but prior to the acceleration of the Notes, the Issuer determines in good faith that there is a reasonable basis to believe that a Directing Holder was, at any relevant time, in breach of its Position Representation and provides to the Trustee an Officers’ Certificate stating that the Issuer has initiated litigation in a court of competent jurisdiction seeking a determination that such Directing Holder was, at such time, in breach of its Position Representation, and seeking to invalidate any Event of Default that resulted from the applicable Noteholder Direction, the cure period with respect to such Default shall be automatically stayed pending a final and non-appealable determination of a court of competent
jurisdiction on such matter. If, following the delivery of a Noteholder Direction, but prior to the acceleration of the Notes, the Issuer provides to the Trustee an Officers’ Certificate stating that a Directing Holder failed to satisfy its Verification Covenant, the cure period with respect to such Default shall be automatically stayed and the cure period with respect to any Event of Default that resulted from the applicable Noteholder Direction shall be automatically reinstituted and any remedy stayed pending satisfaction of such Verification Covenant. Any breach of the Position Representation (as determined by a final judgment of a court of competent jurisdiction) shall result in such Holder’s participation in such Noteholder Direction being disregarded; and, if, without the participation of such Holder, the percentage of Notes held by the remaining Holders of the Notes that provided such Noteholder Direction would have been insufficient to validly provide such Noteholder Direction, such Noteholder Direction shall be void ab initio, with the effect that such Event of Default shall be deemed never to have occurred, acceleration shall be voided and the Trustee shall be deemed not to have received such Noteholder Direction or any notice of such Default or Event of Default; provided, however, that this shall not invalidate any indemnity or security provided by the Directing Holders to the trustee, which obligations shall continue to survive.
Notwithstanding anything in the preceding two paragraphs to the contrary, any Noteholder Direction delivered to the Trustee during the pendency of an Event of Default as the result of bankruptcy or similar proceedings shall not require compliance with this Section 6.02(c). In addition, for the avoidance of doubt, this Section 6.02(c) shall not apply to any Holder that is a Regulated Bank.
For the avoidance of doubt, the Trustee shall be entitled to conclusively rely on any Noteholder Direction, Position Representation, Verification Covenant, Officers’ Certificate or other document delivered to it pursuant to this Section 6.02(c), shall have no duty to inquire as to or investigate the accuracy of any Position Representation, enforce compliance with any Verification Covenant, verify any statements in any Officers’ Certificate delivered to it, or otherwise make calculations, investigations or determinations with respect to Regulated Banks, Derivative Instruments, Net Shorts, Long Derivative Instruments, Short Derivative Instruments or otherwise and shall have no liability for ceasing to take any action or staying any remedy. The Trustee shall have no liability to the Issuer, any Holder or any other Person in acting in good faith on a Noteholder Direction or to determine whether any Holder has delivered a Position Representation or that such Position Representation conforms with this Indenture or any other agreement or whether or not any Holder is a Regulated Bank.
By their acquisition of the Notes, each Holder and subsequent purchaser of the Notes consents to the delivery of its Position Representation by the Trustee to the Issuer in accordance with the terms of this Section 6.02(c). Each Holder and subsequent purchaser of the Notes waives any and all claims, in law and/or in equity, against the Trustee and agrees not to commence any legal proceeding against the Trustee in respect of, and agrees that the Trustee will not be liable for any action that the Trustee takes in accordance with this Section 6.02(c), or arising out of or in connection with following instructions or taking actions in accordance with a Noteholder Direction.
The Issuer hereby waives any and all claims, in law and/or in equity, against the Trustee, and agrees not to commence any legal proceeding against the Trustee in respect of, and agrees that the Trustee will not be liable for any action that the Trustee takes in accordance with this Section 6.02(c), or arising out of or in connection with following instructions or taking actions in accordance with a Noteholder Direction.
For the avoidance of doubt, the Trustee will treat all Holders equally with respect to their rights under this Section 6.02(c). In connection with the requisite percentages required under this Section 6.02(c), the Trustee shall also treat all outstanding Notes equally irrespective of any Position Representation in determining whether the requisite percentage has been obtained with respect to the initial delivery of the Noteholder Direction.
(d)At any time after a declaration of acceleration of the unpaid principal, premium (if any) and accrued and unpaid interest has occurred with respect to the Notes as described in Section 6.02(a) or (b), the Holders of a majority in aggregate principal amount of the then outstanding Notes may rescind and cancel such declaration and its consequences by written notice to the Issuer and the Trustee:
(i)if the rescission would not conflict with any judgment or decree;
(ii)if all existing Events of Default have been cured or waived except nonpayment of principal, premium, if any, or accrued interest that has become due solely because of the acceleration;
(iii)to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid;
(iv)if the Issuer has paid the Trustee its reasonable compensation and reimbursed the Trustee for its expenses (including the fees and expenses of its counsel), disbursements and advances; and
(v)in the event of the cure or waiver of an Event of Default under this Indenture of the type described in clause (v) and (vi) of Section 6.01(a), the Trustee shall have received an Officers’ Certificate that such Event of Default has been cured or waived.
No such rescission shall affect any subsequent Default or impair any right consequent thereto.
Section 6.03 Other Remedies.
(a)If a 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 interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
(b)The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon a Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Default. No remedy is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by law.
(c)In the event of any Event of Default specified in clause (iv) of Section 6.01(a), such Event of Default and all consequences thereof (excluding, however, any resulting payment default, other than as a result of the acceleration of the Notes) shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 20 days after such Event of Default arose: (x) the Indebtedness or Guarantee that is the basis for such Event of Default has been discharged or (y) the holders of such Indebtedness or Guarantee have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default or (z) the default that is the basis for such Event of Default is no longer continuing, it being understood that in no event shall an acceleration of the principal amount of, premium, if any, and accrued interest on the Notes, as
described above, be automatically annulled, waived or rescinded upon the happening of any such events.
(d)Holders may not enforce this Indenture or the Notes, except as provided in this Indenture. The Trustee is under no obligation to exercise any of its rights or powers under this Indenture at the request, order or direction of any of the Holders, unless such Holders have offered to the Trustee indemnity reasonably satisfactory to it.
Section 6.04 Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of Notes at the time then outstanding may on behalf of the Holders of all the Notes waive any Default with respect to such Notes and its consequences by providing written notice thereof to the Issuer and the Trustee, except a Default in the payment of the principal of, premium, if any, or interest on the Notes or a covenant or provision of this Indenture which cannot be modified or amended without the consent of the Holder of each outstanding Note affected. In the case of any such waiver, the Issuer, the Trustee and the Holders shall be restored to their former positions and rights under this Indenture, respectively; provided that no such waiver shall extend to any subsequent or other Default or impair any right consequent thereto.
Section 6.05 Control by Majority.
Subject to the other provisions of this Indenture and applicable law, the Holders of not less than a majority in aggregate principal amount of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it. The Trustee may refuse to follow any direction that conflicts with any law or this Indenture, that the Trustee determines may be unduly prejudicial to the rights of another Holder, or that may involve the Trustee in personal liability; provided that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. In the event the Trustee takes any action or follows any direction pursuant to this Indenture, the Trustee shall be entitled to indemnification satisfactory to the Trustee against any loss or expense caused by taking such action or following such direction.
Section 6.06 Limitation on Suits.
A Holder may not pursue any remedy with respect to this Indenture or the Notes unless:
(i) the Holder gives to the Trustee written notice of a continuing Event of Default;
(ii) the Holder or Holders of at least 25% in principal amount of the outstanding Notes make a written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer and provide to the Trustee indemnity reasonably satisfactory to the Trustee against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 45 days after receipt of the request and the offer and the provision of indemnity; and
(v) during such 45-day period the Holder or Holders of a majority in aggregate principal amount of the outstanding Notes do not give the Trustee a direction in accordance with Section 6.05 which, in the opinion of the Trustee, is inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over such other Holder.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal of and interest 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 the Holder.
Section 6.08 Collection Suit by Trustee.
If a Default in payment of principal or interest specified in clauses (i) or (ii) of Section 6.01(a) 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 and fees remaining unpaid, 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.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relating to the Issuer, its creditors or 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 each of the Trustee and the Agents any amount due to it for the compensation, expenses, disbursements and advances of the Trustee, the Agents and their respective agents and counsel, and any other amounts due the Trustee and the Agents under Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. The Trustee shall be entitled to participate as a member of any official committee of creditors in the matters as it deems necessary or advisable.
Section 6.10 Priorities.
Subject to the provisions of Article 10, if the Trustee collects any money or property pursuant to this Article 6, it shall pay out the money or property in the following order:
First: to the Trustee and the Agents for amounts due under Section 7.07;
Second: to Holders for interest accrued on the Notes, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for interest;
Third: to Holders for principal amounts due and unpaid on the Notes, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal; and
Fourth: to the Issuer or, if applicable, the Guarantors, as their respective interests may appear.
The Trustee, upon prior notice to the Issuer, may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10% in principal amount of the outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.
(a)The Trustee, prior to the occurrence of an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge and after the curing of all such Events of Defaults which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. If an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge has occurred and is continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b)Except during the continuance of an Event of Default:
(i)the duties of the Trustee will be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii)in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, with respect to certificates or opinions specifically required by any provision hereof to be furnished to it, the Trustee will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture; provided, however, that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished to it hereunder.
(c)The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i)this paragraph (c) does not limit the effect of paragraph (b) of this Section 7.01;
(ii)the Trustee will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(iii)the Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.
(d)No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability for the performance of any of its duties hereunder or the exercise of any of its rights or powers. The Trustee will be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, unless such Holder has offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.
(e)The Trustee will not be liable for interest on, and will not be obligated to invest, any money received by it except as the Trustee may agree in writing with the Issuer. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Section 7.02 Rights of Trustee.
(a)The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b)Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c)The Trustee may execute any of the trusts or powers hereunder and perform any duties hereunder either directly or through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent appointed with due care.
(d)The Trustee will not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e)Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer will be sufficient if signed by an Officer of the Issuer.
(f)The Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity or security satisfactory to it against the losses, liabilities and expenses that might be incurred by it in compliance with such request or direction.
(g)In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to,
loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(h)The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.
(i)The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Agents, and the Trustee, in each of its capacities hereunder, each Agent and each agent, custodian, and other Person employed to act hereunder.
(j)The Trustee may request that the Issuer and each Guarantor deliver an Officers’ Certificate setting forth the names of individuals and titles of Officers authorized at such time to take specified actions pursuant to this Indenture.
(k)The right of the Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act.
(l)The Trustee shall have no obligation to (i) independently determine or verify the rating of any Notes or if a commencement of any Suspension Period or the Reversion Date has occurred, (ii) make any determination regarding the impact of actions taken during the Suspension Period on the Issuer’s and its Subsidiaries’ future compliance with their covenants or (iii) notify the Holders of the commencement of the Suspension Period or the Reversion Date.
(m)Notwithstanding any provision herein to the contrary, in no event shall the Trustee 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, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like which restrict or prohibit the providing of the services contemplated by this Indenture, inability to obtain material, equipment, or communications or computer facilities, or the failure of equipment or interruption of communications or computer facilities, and other causes beyond its control whether or not of the same class or kind as specifically named above.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest (within the meaning of the TIA) it must eliminate such conflict within 90 days, apply to the Commission for permission to continue as trustee (if this Indenture has been qualified under the TIA) or resign. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee’s Disclaimer.
The Trustee will not be responsible for and makes no representation as to the validity or adequacy of this Indenture, any related offering material 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 of this Indenture, it will not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it will not be responsible for any statement or recital herein, any statement in the Notes, the Offering Memorandum or any other document in connection with the sale of the Notes or
pursuant to this Indenture or the legality or validity of the Notes or this Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is known to the Trustee in accordance with Section 7.02(h), the Trustee will provide to Holders a notice of the Default or Event of Default within 90 days after the Trustee has notice thereof. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest on, any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders.
Section 7.06 Instructions Using Electronic Means.
The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”), given by the Issuer and/or the Guarantors, pursuant to this Indenture and any related financing documents and delivered using Electronic Means; provided, however, that as a condition to so accepting and acting upon such Instructions, the Trustee may require that the Issuer and/or the Guarantors, as applicable, provide to the Trustee an incumbency certificate listing officers or other representatives with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Issuer and/or the Guarantors, as applicable, whenever a person is to be added or deleted from the listing. If the Issuer and/or the Guarantors, as applicable, elect to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Issuer and the Guarantors understand and agree that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Issuer and the Guarantors shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Issuer, the Guarantors and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Issuer and/or the Guarantors, as applicable. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding that such directions conflict or are inconsistent with a subsequent written instruction. Each of the Issuer and the Guarantors agrees: (i) to assume all risks arising out of the use by them of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Issuer and/or the Guarantors, as applicable; and (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances.
Compensation and Indemnity.
(a)The Issuer will pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services hereunder as agreed between the Issuer and the Trustee. The Trustee’s compensation will not be limited by any law on compensation of a trustee of an express trust. The Issuer will reimburse the Trustee promptly upon request for all reasonable and documented disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses will include the
reasonable and documented compensation, disbursements and expenses of the Trustee’s agents and counsel.
(b)The Issuer and each Guarantor, jointly and severally, will indemnify the Trustee and any director, officer, employee or agent of the Trustee and hold each of them harmless for, from and against any and all losses, liabilities, claims, damages or expenses incurred by it (i) arising out of or in connection with the acceptance or administration of its duties under this Indenture, including, without limitation, the reasonable and documented costs and expenses (including the costs and expenses of the Trustee’s agents and counsel) of enforcing this Indenture against the Issuer and the Guarantors (including this Section 7.07) and defending itself against any claim (whether asserted by the Issuer, the Guarantors, any Holder or any other Person) or (ii) arising out of or in connection with the exercise or performance of any of its powers or duties hereunder and/or the exercise of its rights, except to the extent any such loss, liability or expense is attributable to its own negligence, bad faith or willful misconduct. The Trustee will notify the Issuer promptly of any claim of which a Responsible Officer has received written notice for which it may seek indemnity. Failure by the Trustee to so notify the Issuer will not relieve the Issuer or any of the Guarantors of their obligations hereunder. The Issuer or such Guarantor, as the case may be, will defend the claim and the Trustee will cooperate in the defense. The Trustee may have separate counsel and the Issuer and the Guarantors, as applicable, will pay the reasonable and documented fees and expenses of such counsel; provided, however, that the Issuer and any Guarantor shall not be required to pay such fees and expenses if it assumes such indemnified party’s defense and, in such indemnified party’s reasonable judgment, there is no conflict of interest or potential conflict of interest between the Issuer and the Guarantors, as applicable, and such party in connection with such defense. Neither the Issuer nor any Guarantor need pay for any settlement made without its consent, which consent will not be unreasonably withheld.
(c)The obligations of the Issuer and the Guarantors under this Section 7.07 will survive payment of the Notes, resignation or removal of the Trustee or any Agent, the satisfaction and discharge of this Indenture or other termination of this Indenture.
(d)To secure the Issuer’s and the Guarantors’ payment obligations in this Section 7.07, the Trustee will have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien will survive the satisfaction and discharge of this Indenture.
(e)When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(a)(v) or (vi) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
Section 7.08 Replacement of Trustee.
(a)A resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.
(b)The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Issuer. The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing. The Issuer may remove the Trustee if:
(i)the Trustee fails to comply with Section 7.10 hereof;
(ii)the Trustee is adjudged bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(iii)a custodian, receiver or public officer takes charge of the Trustee or its property; or
(iv)the Trustee becomes incapable of acting.
(c)If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuer will promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.
(d)If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Issuer, or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(e)If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10 hereof, such Holder may petition at the expense of the Issuer any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(f)A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee will mail a notice of its succession to Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuer’s and the Guarantors’ obligations under Section 7.07 hereof will continue for the benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business (including any corporate trust business contemplated by this Indenture) to, another corporation, the successor corporation without any further act will be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation 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 trust powers, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition.
Section 7.11 Preferential Collection of Claims Against the Issuer.
The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuer may at any time, at the option of its Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes and Note Guarantees upon compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Issuer and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been released from their obligations with respect to all outstanding Notes (including the Note Guarantees) on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Issuer and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Guarantees), which will thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in clauses (i) and (ii) below, and to have satisfied all their other obligations under such Notes, the Note Guarantees and this Indenture (and the Trustee, on demand of and at the expense of the Issuer, shall execute instruments acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder:
(i) the rights of Holders of outstanding Notes issued hereunder to receive payments in respect of the principal of, or interest or premium, if any, on such Notes when such payments are due from the trust referred to below;
(ii) the Issuer’s obligations with respect to the Notes issued hereunder concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment;
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the obligations of the Issuer and the Guarantors in connection therewith; and
(iv) this Article 8.
Subject to compliance with this Article 8, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Issuer and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of their obligations under the covenants contained in Sections 4.03, 4.05, 4.08, 4.09, 4.12, 4.13, 4.15, 4.16, 4.17 and 5.01(a)(iii) hereof with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes will 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 will continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes will not be deemed outstanding for accounting purposes). For
this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and the Note Guarantees, the Issuer and the Guarantors may omit to comply with and will have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply will not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes and Note Guarantees, will be unaffected thereby. In addition, upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, and clauses (iii), (iv), (v) (with respect to a Significant Subsidiary of the Issuer), (vi) (with respect to a Significant Subsidiary of the Issuer), (vii) and (viii) of Section 6.01(a) will not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
(a)In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 hereof:
(i)the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders cash in U.S. dollars, non-callable U.S. Government Securities, or a combination of cash in U.S. dollars and non-callable U.S. Government Securities, in amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants delivered to the Trustee, to pay the principal of, and interest and premium, if any, on the outstanding Notes issued hereunder 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;
(ii)in the case of an election under Section 8.02 hereof, the Issuer has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the Issue Date, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel will confirm that, the Holders of the outstanding Notes issued hereunder will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(iii)in the case of an election under Section 8.03 hereof, the Issuer has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes issued hereunder will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(iv)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, or arising in connection with, the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings);
(v)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 Guarantor is a party or by which the Issuer or any Guarantor is bound;
(vi)the Issuer must deliver to the Trustee an Officers’ Certificate stating that the deposit referred to in clause (i) was not made by the Issuer with the intent of preferring the Holders over the other creditors of the Issuer or any Guarantor or with the intent of defeating, hindering, delaying or defrauding creditors of the Issuer or any Guarantor or others; and
(vii)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 of the Notes have been complied with.
(b)Notwithstanding the foregoing, the Opinion of Counsel required by clauses (a)(ii) and (a)(iii) above with respect to a Legal Defeasance or a Covenant Defeasance, as applicable, need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable on the maturity date 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.
(c)Upon satisfaction of the conditions set forth herein and upon the request of the Issuer, the Trustee shall acknowledge in writing the discharge of those obligations that the Issuer terminates.
Section 8.05 Deposited Money and U.S. Government Securities to Be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money, non-callable U.S. Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
The Issuer will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable U.S. Government Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.
Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to the Issuer from time to time upon the request of the Issuer any money, non-callable
U.S. Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a)(ii) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to the Issuer.
Subject to applicable abandoned property law, any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of, premium, if any, or interest on, any Note and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Issuer on its request or (if then held by the Issuer) will be discharged from such trust; and the Holder of such Note will thereafter be permitted to look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, will 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 The New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Issuer.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable U.S. Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuer’s and the Guarantors’ obligations under this Indenture and the Notes and the Note Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Issuer makes any payment of principal of, premium, if any, or interest on, any Note following the reinstatement of its obligations, the Issuer will 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 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Without the consent of any Holder, the Issuer, the Guarantors (except that, with respect to Sections 9.01(vi) and 9.01(ix) below, the Guarantors need not be a party to a supplemental indenture that solely adds or releases a Note Guarantee) and the Trustee may amend or supplement this Indenture, the Notes or the Note Guarantees:
(i) to cure any ambiguity, mistake, defect or inconsistency;
(ii) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(iii) to provide for the assumption by a Successor Company or a successor company of a Guarantor, as applicable, of the Issuer’s or such Guarantor’s obligations under this Indenture;
(iv) to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights hereunder of any Holder;
(v) to secure the Notes;
(vi) to add a Note Guarantee;
(vii) to conform the text of this Indenture or the Notes to any provision of the “Description of Notes” included in the Offering Memorandum relating to the Notes;
(viii) to provide for the issuance of Additional Notes in accordance with the provisions set forth in this Indenture; or
(ix) to release a Guarantor from its Note Guarantee; provided that such release is in accordance with the applicable provisions of this Indenture;
provided, that the Issuer has delivered to the Trustee an Opinion of Counsel and an Officers’ Certificate, each stating that such amendment or supplement complies with the provisions of this Section 9.01.
Section 9.02 With Consent of Holders of Notes.
(a)Subject to Section 6.07 and Section 9.02(b), the Issuer, the Guarantors and the Trustee, together, with the written consent of the Holder or Holders of a majority in aggregate 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), may amend or supplement this Indenture or the Notes without notice to any other Holders. Subject to Section 6.04, the Holder or Holders of a majority in aggregate principal amount of the Notes then outstanding may waive any existing default or compliance with any provision of this Indenture or the Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes) without notice to any other Holders (except a default in respect of the payment of principal of, premium, if any, or interest on the Notes or a covenant or provision of this Indenture which cannot be modified or amended without the consent of the Holder of each outstanding Note affected).
(b)Notwithstanding Section 9.02(a), without the consent of each Holder of an outstanding Note affected, an amendment, supplement or waiver, including a waiver pursuant to Section 6.04, may not:
(i)reduce the principal amount of Notes issued hereunder whose Holders must consent to an amendment, supplement or waiver;
(ii)reduce the principal of or change the fixed maturity of any Note issued hereunder or alter the provisions with respect to the redemption of the outstanding Notes issued hereunder (other than provisions relating to the covenants described above under Section 4.15, except as set forth in clause (x) below);
(iii)reduce the rate of or change the time for payment of interest on any Note issued hereunder;
(iv)waive a Default or Event of Default in the payment of principal of, or interest or premium, if any, on the outstanding Notes issued hereunder (except a rescission of acceleration of the Notes issued hereunder by the Holders of a majority in aggregate principal
amount of the then outstanding Notes issued hereunder with respect to a nonpayment default and a waiver of the payment default that resulted from such acceleration);
(v)make any Note payable in money other than that stated in the Notes;
(vi)make any change in the provisions of this Indenture relating to waivers of past Defaults or impair the right of any Holder to institute suit for the enforcement of any payment on or with respect to the Notes;
(vii)waive a redemption payment with respect to any Note issued hereunder (other than a payment required by Section 4.15, except as set forth in clause (x) below);
(viii)make any change in the ranking or priority of any Note issued hereunder that would adversely affect the Holders;
(ix)modify the Note Guarantees in any manner adverse to the Holders;
(x)amend, change or modify in any material respect the obligation of the Issuer to make and consummate a Change of Control Offer in respect of a Change of Control that has occurred; or
(xi)make any change in the preceding amendment and waiver provisions.
(c)It shall not be necessary for the consent of the Holders under this Section to approve the particular form of any proposed amendment, supplement or waiver but it shall be sufficient if such consent approves the substance thereof.
(d)After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuer shall give to the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuer to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.
Section 9.03 [Intentionally Omitted].
Section 9.04 Revocation and Effect of Consents.
(a)Until an amendment, waiver or supplement becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder 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 or subsequent Holder may revoke the consent as to his Note or portion of his Note by notice to the Trustee or the Issuer received before the date on which the Trustee receives an Officers’ Certificate certifying that the Holders of the requisite principal amount of Notes have consented (and not theretofore revoked such consent) to the amendment, supplement or waiver.
(b)The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver which record date shall be at least 30 days prior to the first solicitation of such consent. If a record date is fixed, then notwithstanding the last sentence of the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. No such consent shall
be valid or effective for more than 90 days after such record date. The Issuer shall inform the Trustee in writing of the fixed record date if applicable.
(c)After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless it makes a change described in any of clauses (i) through (xi) of Section 9.02(b), in which case, the amendment, supplement or waiver shall bind only each Holder of a Note who has consented to it and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note; provided that any such waiver shall not impair or affect the right of any Holder to bring suit for the enforcement of any such payment on or after such respective dates without the consent of such Holder.
Section 9.05 Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note, the Issuer may require the Holder of the Note to deliver it to the Trustee. The Issuer shall provide the Trustee with an appropriate notation on the Note about the changed terms and cause the Trustee to return it to the Holder at the Issuer’s expense. Alternatively, if the Issuer or the Trustee so determines, the Issuer in exchange for the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms. Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver authorized pursuant to this Article 9; provided, that the Trustee may, but shall not be obligated to, execute any such amendment, supplement or waiver which affects the Trustee’s own rights, duties or immunities under this Indenture. The Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel and an Officers’ Certificate each stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article 9 is authorized or permitted by this Indenture and constitutes the legal, valid and binding obligations of the Issuer enforceable in accordance with its terms. Such Opinion of Counsel and Officers’ Certificate shall be at the expense of the Issuer.
ARTICLE 10
GUARANTEES
Section 10.01 Guarantee.
(a)Subject to this Article 10, each of the Guarantors hereby, jointly and severally, and fully and unconditionally, Guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of, this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (i) the principal of, premium, if any, and accrued and unpaid interest and defaulted interest, if any, on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium, if any, and interest and defaulted interest, if any, on the Notes (pursuant to Section 2.12), if lawful (subject in all cases to any applicable grace period provided herein), and all other obligations of the Issuer to the Holders or the Trustee hereunder or thereunder will be promptly paid in full, 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 any of such other obligations, the same will be promptly paid in full when due in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Failing payment when due of any amount so Guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a Guarantee of payment and not a Guarantee of collection.
(b)Each Guarantor hereby agrees that, to the maximum extent permitted under applicable law, its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes or the Trustee with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Subject to Section 6.06, each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that its Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.
(c)If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to any of the Issuer or the Guarantors, any amount paid by any of them to the Trustee or such Holder, the Note Guarantees, to the extent theretofore discharged, shall be reinstated with full force and effect.
(d)Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders or the Trustee in respect of any obligations Guaranteed hereby until payment in full of all obligations Guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Guaranteed hereby may be accelerated as provided in Article 6 for the purposes of its Note 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 declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of its Note Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders or the Trustee under any Note Guarantee.
Section 10.02 Limitation on Guarantor Liability.
(a)Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b)Notwithstanding anything herein to the contrary, the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or
indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i)90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii)90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture.
The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Section 10.03 Execution and Delivery of Guarantee.
(a)To evidence its Note Guarantee set forth in Section 10.01, each Guarantor hereby agrees that a notation of such Note Guarantee (a “Notation of Guarantee”) substantially in the form attached hereto as Exhibit D shall be endorsed by an Officer of such Guarantor by manual, electronic or facsimile signature on each Note authenticated and delivered by the Trustee and that this Indenture shall be executed on behalf of such Guarantor by one of its Officers.
(b)Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 shall remain in full force and effect notwithstanding any failure to endorse on each Note a Notation of Guarantee.
(c)If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed, the Note Guarantee shall be valid nevertheless.
(d)The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.
(e)If required by Section 4.17, the Issuer shall cause such Subsidiaries to execute supplemental indentures to this Indenture and Notations of Guarantee in accordance with Section 4.17 and this Article 10, to the extent applicable.
Section 10.04 Guarantors May Consolidate, Etc., on Certain Terms.
Notwithstanding anything to the contrary in this Indenture, each Guarantor may consolidate with or merge into or sell its assets to the Issuer or another Guarantor without limitation, or with, into or to any other Persons upon the terms and conditions set forth in Article 5.
Section 10.05 Releases.
The Note Guarantee of a Guarantor will be automatically released in the event that:
(a)there is a sale, disposition or other transfer (including through merger or consolidation) of (i) all of the Capital Stock (or any sale, disposition or other transfer of Capital Stock (including through merger or consolidation) following which the applicable Guarantor is no longer a Subsidiary of the Issuer), or (ii) all or substantially all the assets, of the applicable Guarantor;
(b)in the case of any Subsidiary of the Issuer, which after the Issue Date is required to provide a Note Guarantee pursuant to Section 4.17, the release or discharge of the Guarantee by such entity of all Indebtedness of the Issuer or any Subsidiary of the Issuer or the repayment of all the Indebtedness or Disqualified Stock, in each case, which resulted in an obligation to provide a Note Guarantee;
(c)if the Issuer exercises its Legal Defeasance option or its Covenant Defeasance option as described under Article 8 or if its obligations under this Indenture are discharged in accordance with the terms of this Indenture as described under Article 11; or
(d)such Guarantor is also a guarantor or borrower under the Credit Agreement as in effect on the Issue Date and, at the time of release of its Note Guarantee, (x) has been released from its Guarantee of, and all pledges and security, if any, granted by it in connection with the Credit Agreement, (y) is not an obligor under any Indebtedness (other than Indebtedness permitted to be incurred pursuant to clause (3), (5), (6), (7), (8), (9), (10) and (11) of Section 4.09(b) and (z) does not Guarantee any Indebtedness in excess of $50,000,000 (or its foreign currency equivalent) at such time outstanding of the Issuer or any of the other Guarantors.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge.
(a)This Indenture will be discharged and will cease to be of further effect as to all Notes issued hereunder, when:
(i)Either:
(A)all the 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 or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, have been delivered to the Trustee for cancellation; or
(B)all the Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the giving of a notice of redemption or otherwise or will become due and payable by reason of the giving of a notice of redemption or otherwise within one year and the Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereof, in amounts as will be sufficient, without consideration of any
reinvestment of interest, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants delivered to the Trustee, to pay and discharge the entire Indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption;
(ii)in the case of subclause (i)(B) above, no Default or Event of Default has occurred and is continuing under this Indenture on the date of the deposit or will occur as a result of the deposit (other than a Default or Event of Default resulting from or arising in connection with borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings) and the deposit will not result in a breach or violation of, or constitute a default under, any other material instrument to which the Issuer is a party or by which the Issuer is bound;
(iii)the Issuer has paid or caused to be paid all sums payable by it under this Indenture; and
(iv)the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes issued hereunder at maturity or the redemption date, as the case may be.
(b)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.
(c)Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to subclause (B) of clause (i) of Section 11.01(a), the provisions of Sections 11.02 and 8.06 hereof will survive such satisfaction and discharge. In addition, nothing in this Section 11.01 will be deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the satisfaction and discharge of this Indenture
Section 11.02 Application of Trust Money.
Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or U.S. Government Securities in accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s and any Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof; provided that if the Issuer has made any payment of principal of, premium, if any, or interest on, any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Securities held by the Trustee or Paying Agent.
ARTICLE 12
MISCELLANEOUS
Section 12.01 [Intentionally Omitted].
Section 12.02 Notices.
Any notice, demand, instruction, request, direction or communication by the Issuer, any Guarantor or the Trustee to the others is duly given if in English and in writing and delivered in Person or by first class mail (registered or certified, return receipt requested), facsimile transmission or other electronic transmission or overnight air courier guaranteeing next day delivery, to the others’ address:
If to the Issuer and/or any Guarantor:
Sensata Technologies B.V.
c/o Sensata Technologies, Inc.
529 Pleasant Street
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Financial Officer
With a copy to:
Foley Hoag LLP
Seaport West
155 Seaport Boulevard
Boston, MA US 02210-2600
Attention: Malcolm G. Henderson, Esq.
If to the Trustee:
The Bank of New York Mellon
Corporate Trust Division
240 Greenwich Street, 7th Floor East
New York, NY 10286
Facsimile No.: (212) 815-5366
Attention: Corporate Trust Division
The Issuer, any Guarantor or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.
All notices and communications to the Trustee or any Agent shall be deemed to have been duly given upon actual receipt thereof by such party. All other notices and communications (other than those sent to Holders) will be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile or other electronic transmission; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder of a Global Note will be delivered to the Depositary in accordance with its customary procedures. Any notice or communication to a Holder of a Definitive Note will be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown
on the register kept by the Registrar. Failure to give a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders.
Except with respect to the Trustee and the Agents, if a notice or communication is given in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
In respect of this Indenture, the Trustee shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission; and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information. Each other party agrees to assume all risks arising out of the use of electronic methods, including any non-secure method, such as, but without limitation, by facsimile or electronic mail, to submit instructions, directions, reports, notices or other communications or information to the Trustee, including without limitation, the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties.
If the Issuer gives a notice or communication to Holders, it will give a copy to the Trustee and each Agent at the same time.
The Trustee shall have the right to accept and act upon Instructions given pursuant to this Indenture and any related financing documents and delivered using Electronic Means as provided in Section 7.06.
Section 12.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or the Notes. The Issuer, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
Section 12.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer to the Trustee to take or refrain from taking any action under this Indenture, the Issuer shall furnish to the Trustee:
(i)an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05 hereof) 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; provided, that such Officers’ Certificate shall not be required to be furnished to the Trustee in connection with the authentication and delivery of the Notes on the Issue Date; and
(ii)an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied; provided, that such Opinion of Counsel shall not be
required to be furnished to the Trustee in connection with the authentication and delivery of the Notes on the Issue Date.
Section 12.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) must comply with the provisions of TIA § 314(e) and must include:
(i)a statement substantially to the effect that the Person making such certificate or opinion has read such covenant or condition;
(ii)a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii)a statement substantially to the effect that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
(iv)a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied; provided, however, that with respect to matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate or certificates of public officials.
Section 12.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders.
No director, officer, employee, incorporator or stockholder of the Issuer, the Parent, any other direct or indirect parent company of the Issuer or any Subsidiary of the Issuer, as such, will have any liability for any obligations of the Issuer or any Guarantor under any Notes, this Indenture, the Note Guarantees, 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 such Notes. The waiver may not be effective to waive liabilities under the federal securities laws, and it is the view of the Commission that such waiver is against public policy.
Section 12.08 Governing Law.
THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 12.09 Jurisdiction; Waiver of Jury Trial.
(a)Each of the Issuer and the Guarantors hereby consents to the non-exclusive jurisdiction of any court of the State of New York or any U.S. federal court, in each case, sitting in the Borough of Manhattan, The City of New York, New York, United States, and any appellate court from any thereof in any action or proceeding arising out of or related to the Notes, this Indenture or the Note Guarantees. Each of the Issuer and the Guarantors hereby appoints C T Corporation located at 111 Eighth Avenue, New York, New York 10011 as its
authorized agent upon which service of process may be served in any action or proceeding brought in any court of the State of New York or any U.S. federal court sitting in the Borough of Manhattan, The City of New York in connection with this Indenture, the Notes or the Note Guarantees.
(b)EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 12.10 Waiver of Immunities.
To the extent that the Issuer or any Guarantor may in any jurisdiction claim for itself or its assets immunity from a suit, execution, attachment, whether in aid of execution, before judgment or otherwise, or other legal process in connection with and as set out in this Indenture, the Notes or the Note Guarantees and to the extent that in any jurisdiction there may be immunity attributed to the Issuer or the Guarantors or the Issuer’s or any Guarantor’s assets, whether or not claimed, the Issuer or any Guarantor, as applicable, irrevocably agrees for the benefit of the Holders not to claim, and irrevocably waives, the immunity to the full extent permitted by law.
Section 12.11 Currency Rate Indemnity.
The U.S. dollar is the sole currency of account and payment for all sums payable by the Issuer or any Guarantor under or in connection with this Indenture, the Notes and the Note Guarantees, including damages. Any amount with respect to this Indenture, the Notes and the Note Guarantees 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 or any Guarantor or otherwise by any Holder or by the Trustee, in respect of any sum expressed to be due to it from the Issuer or any Guarantor will only constitute a discharge to the Issuer or any Guarantor 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).
Section 12.12 Successors.
All agreements of the Issuer in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this Indenture will bind its successors. All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 10.04 hereof.
Section 12.13 Severability.
In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, then (to the extent permitted by applicable law) the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
Section 12.14 Counterpart Originals.
This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Indenture by facsimile or in electronic format shall be effective as delivery of a manually executed counterpart of this Indenture.
Section 12.15 Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
Dated as of March 29, 2021
SIGNATURES
SENSATA TECHNOLOGIES B.V., as Issuer
By: /s/ Gerrit H. Ensing______________
Name: Gerrit H. Ensing
Title: Director
SENSATA TECHNOLOGIES, INC.
BEI NORTH AMERICA LLC
CRYDOM, INC.
CUSTOM SENSORS & TECHNOLOGIES, INC.
CUSTOM SENSORS & TECHNOLOGIES US CORPORATION
CUSTOM SENSORS & TECHNOLOGIES US LLC
KAVLICO CORPORATION
NEWALL ELECTRONICS INC., each as Guarantor
By: /s/ Paul Vasington______________
Name: Paul Vasington
Title: EVP and Chief Financial Officer
SENSATA TECHNOLOGIES US, LLC
SENSATA TECHNOLOGIES US II, LLC, each as Guarantor
By: /s/ Paul Vasington______________
Name: Paul Vasington
Title: Manager
STI HOLDCO, INC., as Guarantor
By: /s/ Paul Vasington______________
Name: Paul Vasington
Title: Director
CDI NETHERLANDS B.V.
SENSATA TECHNOLOGIES HOLDING COMPANY MEXICO, B.V.
SENSATA TECHNOLOGIES HOLLAND B.V., each as Guarantor
By: /s/ Gerrit H. Ensing______________
Name: Gerrit H. Ensing
Title: Director
SENSATA TECHNOLOGIES BULGARIA EOOD, as a Guarantor
By: /s/ Gerrit H. Ensing______________
Name: Gerrit H. Ensing
Title: Director
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita______________ |
AUGUST UK HOLDCO LIMITED, as Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita______________ |
CUSTOM SENSORS & TECHNOLOGIES NEWCO LTD., as Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita______________ |
SENSATA TECHNOLOGIES UK FINANCING CO. PLC, as Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita______________ |
ST SCHRADER HOLDING COMPANY UK LIMITED, as Guarantor | Director |
SENSATA TECHNOLOGIES BERMUDA LTD., as a Guarantor
By: /s/ George Verras______________
Name: George Verras
Title: Director
SENSATA TECHNOLOGIES JAPAN LIMITED., as a Guarantor
By: /s/ Song Changhwan______________
Name: Song Changhwan
Title: Representative Director
AUGUST BRAZIL HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 168084,
as Guarantor
By: /s/ Joseph Barberia______________
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST BRAZIL HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 168084,
as Guarantor
By: /s/ Dylan Davies______________
Name: Dylan Davies
Title: Manager (Class B)
AUGUST LUX HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167704,
as Guarantor
By: /s/ Joseph Barberia______________
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST LUX HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167704,
as Guarantor
By: /s/ Dylan Davies______________
Name: Dylan Davies
Title: Manager (Class B)
AUGUST LUXUK HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167757,
as Guarantor
By: /s/ Joseph Barberia______________
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST LUXUK HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167757,
as Guarantor
By: /s/ Dylan Davies______________
Name: Dylan Davies
Title: Manager (Class B)
ST AUGUST LUX COMPANY S.A.R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192229,
as Guarantor
By: /s/ Joseph Barberia______________
Name: Joseph Barberia
Title: Manager (Class A)
ST AUGUST LUX COMPANY S.A.R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192229,
as Guarantor
By: /s/ Dylan Davies______________
Name: Dylan Davies
Title: Manager (Class B)
ST AUGUST LUX INTERMEDIATE HOLDCO S.A.R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192214,
as Guarantor
By: /s/ Joseph Barberia______________
Name: Joseph Barberia
Title: Manager (Class A)
ST AUGUST LUX INTERMEDIATE HOLDCO S.A.R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192214,
as Guarantor
By: /s/ Dylan Davies______________
Name: Dylan Davies
Title: Manager (Class B)
THE BANK OF NEW YORK MELLON, as Trustee, Registrar and Paying Agent
By: /s/ Wanda Camacho______________
Name: Wanda Camacho
Title: Vice President
EXHIBIT A
[Face of Note]
[Insert legends required by the Indenture]
[Insert as appropriate:
144A CUSIP No.: [_________]
144A ISIN: [_________]
Reg S CUSIP No.: [_________]
Reg S ISIN: U[_________]]
4.000% Senior Notes due 2029
No. [A][S]-[●] $
SENSATA TECHNOLOGIES B.V.
promises to pay to CEDE & CO. or registered assigns, the principal sum of __________________ DOLLARS [if the Note is a Global Note, add the following: (as revised by the Schedule of Increases and Decreases in Global Note, attached hereto)] on April 15, 2029.
Interest Payment Dates: April 15 and October 15, commencing October 15, 2021.
Additional provisions of this Note are set forth on the other side of this Note.
Record Dates: April 1 and October 1.
Dated: [_________], [____]
SENSATA TECHNOLOGIES B.V.
By:
Name:
Title:
Dated:
Dated:
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK MELLON, as Trustee
By:
Authorized Signatory
[Reverse of Note]
4.000% Senior Notes due 2029
Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
(1) INTEREST. Sensata Technologies B.V. (the “Issuer”), a private company with limited liability incorporated under Dutch law, promises to pay interest on the principal amount of this Note at 4.00% per annum from March 29, 20211 until maturity. The Issuer will pay interest, if any, semi-annually in arrears on April 15 and October 15 of each year (subject to the second following sentence), or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from March 29, 20212, until the principal hereof is due. The first Interest Payment Date shall be October 15, 20213. The Issuer will pay interest on overdue principal at the rate borne by the Notes, and it shall pay interest on overdue installments of interest at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
(2) METHOD OF PAYMENT. The Issuer will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the April 1 or October 1 next preceding the Interest Payment Date (whether or not a Business Day), even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Issuer will pay principal, premium, if any, and interest on Definitive Notes at the office of the Paying Agent. Such payment will be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
(3) PAYING AGENT AND REGISTRAR. Initially, The Bank of New York Mellon, as the Trustee, will act as Paying Agent and Registrar. The Issuer may change any Paying Agent or Registrar without notice to any Holder. The Issuer or any of its Subsidiaries may act in any such capacity.
(4) INDENTURE. The Issuer issued the Notes under the Indenture dated as of March 29, 2021 (the “Indenture”) among the Issuer, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all the terms and provisions of the Indenture, and Holders are referred to the Indenture for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
The Notes are unsecured senior obligations of the Issuer. This Note is one of the Initial Notes referred to in the Indenture. The Notes include the Initial Notes and any Additional Notes issued in exchange for Initial Notes or Additional Notes issued pursuant to the Indenture. The Initial Notes and any Additional Notes are treated as a single class of securities under the Indenture. The Indenture imposes certain limitations on the ability of the Issuer and its Subsidiaries to, among other things, incur Indebtedness (other than the Issuer), create or incur Liens and enter into sale and lease-back transactions. The Indenture also imposes limitations on
1 Date to be used for Initial Notes; date to be revised as appropriate in the case of any Additional Notes.
2 Date to be used for Initial Notes; date to be revised as appropriate in the case of any Additional Notes.
3 Date to be used for Initial Notes; date to be revised as appropriate in the case of any Additional Notes.
the ability of the Issuer and each Guarantor to consolidate or merge with or into any other Person or convey, transfer or lease all or substantially all of its property.
To Guarantee the due and punctual payment of the principal and interest on the Notes and all other amounts payable by the Issuer under the Indenture and the Notes when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Guarantors have, jointly and severally, unconditionally Guaranteed the obligations of the Issuer under the Notes on an unsecured senior basis pursuant to the terms of the Indenture.
(5) OPTIONAL REDEMPTION. Except pursuant to Sections 3.07(b) through Section 3.07(e) and 4.15(f) of the Indenture, the Notes will not be optionally redeemable by the Issuer; provided, however, the Issuer may acquire the Notes by means other than an optional redemption.
(a)At any time and from time to time prior to April 15, 2024, the Issuer may redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus the Applicable Premium, plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of Holders of record on the record date to receive interest due on the related Interest Payment Date).
(b)At any time and from time to time on or after April 15, 2024, the Issuer may redeem the Notes, in whole or in part, at the redemption prices (expressed as a percentage of principal amount) set forth below, plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of Holders of record on the record date to receive interest due on the related Interest Payment Date):
| | | | | |
| Period Beginning April 15, | Price |
2024 | 102.000% |
2025 | 101.000% |
2026 and thereafter | 100.000% |
(c)At any time and from time to time prior to April 15, 2024, the Issuer may redeem up to 40% of the principal amount of the outstanding Notes (including Additional Notes, if any) with the net cash proceeds of one or more Equity Offerings at a redemption price (expressed as a percentage of principal amount) of 104.000%, plus accrued and unpaid interest, if any, to, but excluding, the redemption date; provided that (i) at least 60% of the aggregate principal amount of Notes issued on the Issue Date and any Additional Notes originally issued under the Indenture after the Issue Date remains outstanding immediately after each such redemption, and (ii) notice of any such redemption is given to the Holders within 90 days of the closing of each such Equity Offering.
(d)The Issuer may, at its option, redeem the Notes, in whole but not in part, at any time upon not less than 15 days’ nor more than 30 days’ notice to the Holders (which notice shall be irrevocable and given in accordance with Section 3.03 of the Indenture), at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the redemption date, premium, if any, and all Additional Amounts, if any, then due and which will become due on the date of redemption as a result of the redemption or otherwise, if the Issuer determines in good faith that the Issuer or any Guarantor is, or on the next date on which any amount would be payable in respect of the Notes, would be obligated to pay Additional Amounts in respect of the Notes pursuant to the terms and conditions thereof (but, in the case of a Guarantor, only if the payment giving rise to such requirement cannot be made by
the Issuer or another Guarantor without the obligation to pay Additional Amounts), which the Issuer or such Guarantor, as the case may be, cannot avoid by the use of reasonable measures available to it (including, without limitation, making payment through a Paying Agent located in another jurisdiction), as a result of:
(1) any change in, or amendment to, the laws or treaties (or any regulations, official guidance or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction affecting taxation which becomes effective on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction that arises after the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under the Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder); or
(2) any change in the official application, administration, or interpretation of the laws, treaties, regulations, official guidance or rulings of any Relevant Taxing Jurisdiction (including a holding, judgment, or order by a court of competent jurisdiction), on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction that arises after the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under the Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder).
Notwithstanding the foregoing, the Issuer may not redeem the Notes under this provision if a Relevant Taxing Jurisdiction changes and the Issuer is obligated to pay Additional Amounts as a result of a Change in Tax Law of such Relevant Taxing Jurisdiction which was officially announced at the time the latter became a Relevant Taxing Jurisdiction.
Notwithstanding the foregoing, no such notice of redemption will be given (i) earlier than 90 days prior to the earliest date on which the Issuer or any Guarantor, would be obliged to make such payment of Additional Amounts or withholding if a payment in respect of the Notes or the relevant Note Guarantee, as the case may be, were then due and (ii) unless at the time such notice is given, the obligation to pay Additional Amounts remains in effect.
(e) Except for redemption pursuant to Section 3.07(e) of the Indenture, notices of optional redemption will be given at least 30 but not more than 60 days before the redemption date to each Holder of Notes to be redeemed in accordance with Section 12.02 of the Indenture, except that redemption notices may be given more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture.
(6) MANDATORY REDEMPTION. The Issuer is not required to make any mandatory redemption or sinking fund payments with respect to the Notes.
(7) REPURCHASE AT THE OPTION OF HOLDER. If a Change of Control occurs, unless the Issuer at such time has given notice of redemption with respect to all outstanding Notes, each Holder will have the right to require the Issuer to repurchase all or any part (in a minimum principal amount of $200,000 and integral multiples of $1,000 in excess thereof) of that Holder’s Notes pursuant to a change of control offer (the “Change of Control Offer”) on the terms set forth in the Indenture. In the Change of Control Offer, the Issuer will offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest on the Notes repurchased, to, but excluding, the Change of Control Payment Date. Within 30 days following any Change of Control, unless the Issuer at such time has given notice of redemption with respect to all outstanding Notes, the Issuer will
give notice to each Holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is given.
(8) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in minimum denominations of $200,000 (the “Minimum Dollar Denomination”) and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuer need not register the transfer of or exchange any Note selected for redemption in whole or in part or subject to purchase in a Change of Control Offer, except the unredeemed or unpurchased portion of any Note being redeemed or purchased in part. Also, the Issuer need not exchange or register the transfer of any Notes for a period of 15 days before the day the Issuer gives notice of redemption of the Notes or makes a Change of Control Offer and ending at the close of business on the day notice of redemption is given or the Change of Control Offer is made.
(9) PERSONS DEEMED OWNERS. The registered Holder of a Note shall be treated as its owner for all purposes.
(10) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent of the Issuer and Holders of a majority in aggregate principal amount of the then outstanding Notes, including Additional Notes, if any, voting as a single class, and any existing Default or Event or Default or compliance with any provision of the Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes, including Additional Notes, if any, voting as a single class. Without the consent of any Holder of a Note, the Indenture, the Notes or the Note Guarantees may be amended or supplemented:
(i) to cure any ambiguity, mistake, defect or inconsistency;
(ii) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(iii) to provide for the assumption by a Successor Company or a successor company of a Guarantor, as applicable, of the Issuer’s or such Guarantor’s obligations under the Indenture;
(iv) to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights hereunder of any Holder;
(v) to secure the Notes;
(vi) to add a Note Guarantee;
(vii) to conform the text of the Indenture or the Notes to any provision of the “Description of Notes” included in the Offering Memorandum relating to the Notes;
(viii) to provide for the issuance of Additional Notes in accordance with the provisions set forth in the Indenture; or
(ix) to release a Guarantor from its Note Guarantee; provided that such release is in accordance with the applicable provisions of the Indenture;
provided, that the Issuer has delivered to the Trustee an Opinion of Counsel and an Officers’ Certificate, each stating that such amendment or supplement complies with the provisions of Section 9.01 of the Indenture.
(11) DEFAULTS AND REMEDIES. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency with respect to the Issuer, any Subsidiary of the Issuer that is a Significant Subsidiary or any group of Subsidiaries of the Issuer that, taken together, would constitute a Significant Subsidiary of the Issuer, all outstanding Notes will become due and payable immediately without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Holders of a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may, on behalf of the Holders of all of the Notes, rescind an acceleration or waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of the principal of, premium, if any, or interest on the Notes or a covenant or provision of the Indenture which cannot be modified or amended without the consent of the Holder of each outstanding Note affected. The Issuer is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Issuer is required, upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default and the remedial action the Issuer proposes to take in connection therewith.
(12) DISCHARGE AND DEFEASANCE. Subject to certain conditions, the Issuer at any time may terminate some or all of its obligations under the Notes, the Note Guarantees and the Indenture if the Issuer deposits with the Trustee money or U.S. Government Securities for the payment of principal of and interest on the Notes to redemption or maturity, as the case may be.
(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Issuer or its Affiliates, and may otherwise deal with the Issuer or its Affiliates, as if it were not the Trustee.
(14) NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Issuer, the Parent, any other direct or indirect parent entity of the Issuer or any Subsidiary of the Issuer, as such, will have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
(15) AUTHENTICATION. This Note will not be valid until authenticated by the manual or electronic signature of the Trustee or an authenticating agent.
(16) ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(17) CUSIP NUMBERS, ISINS. The Issuer has caused CUSIP numbers and ISINs to be printed on the Notes, and the Trustee may use CUSIP numbers and ISINs in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption, and reliance may be placed only on the other identification numbers placed thereon.
(18) GOVERNING LAW. THE LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES.
(19) JURISDICTION; WAIVER OF JURY TRIAL.
(a) Each of the Issuer and the Guarantors has consented to the non-exclusive jurisdiction of any court of the State of New York or any U.S. federal court, in each case, sitting in the Borough of Manhattan, The City of New York, New York, United States, and any appellate court from any thereof in any action or proceeding arising out of or related to this Note, the Indenture or the Note Guarantees. Each of the Issuer and the Guarantors has appointed C T Corporation located at 111 8th Avenue, New York, New York 10011 as its authorized agent upon which service of process may be served in any action or proceeding brought in any court of the State of New York or any U.S. federal court sitting in the Borough of Manhattan, The City of New York in connection with the Indenture, this Note or the Note Guarantees.
(b) EACH OF THE PARTIES TO THE INDENTURE HAS IRREVOCABLY WAIVED ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE INDENTURE, THIS NOTE, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(20) WAIVER OF IMMUNITIES. To the extent that the Issuer or any Guarantor may in any jurisdiction claim for itself or its assets immunity from a suit, execution, attachment, whether in aid of execution, before judgment or otherwise, or other legal process in connection with and as set out in the Indenture, this Note or the Note Guarantees and to the extent that in any jurisdiction there may be immunity attributed to the Issuer or the Guarantors or the Issuer’s or any Guarantor’s assets, whether or not claimed, the Issuer or any Guarantor, as applicable, has irrevocably agreed for the benefit of the Holders not to claim, and irrevocably waived, the immunity to the full extent permitted by law.
(21) CURRENCY RATE INDEMNITY. The U.S. dollar is the sole currency of account and payment for all sums payable by the Issuer or any Guarantor under or in connection with the Notes, including damages. Any amount with respect to the Notes or the Note Guarantee 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 or any Guarantor or otherwise by any Holder or by the Trustee, in respect of any sum expressed to be due to it from the Issuer or any Guarantor will only constitute a discharge to the Issuer or any Guarantor 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).
The Issuer will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:
Sensata Technologies B.V.
c/o Sensata Technologies, Inc.
529 Pleasant Street
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Financial Officer
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
(Insert assignee’s legal name)
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date:
Your Signature:
(Sign exactly as your name
appears on the face of this Note)
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.15 of the Indenture, check the box below:
Section 4.15
If you want to elect to have only part of the Note purchased by the Issuer pursuant to Section 4.15 of the Indenture, state the amount you elect to have purchased:
$
Date:
Your Signature:
(Sign exactly as your name
appears on the face of this Note)
Tax Identification No.:
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
SCHEDULE OF INCREASES AND DECREASES OF INTERESTS IN THE GLOBAL NOTE
[To be inserted for 144A Global Note]
The following transfer or exchange of a part of this 144A Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this 144A Global Note, or to reflect a redemption or repurchase of the Notes and cancellation, have been made:
| | | | | | | | | | | | | | |
| Date of Increase or Decrease | Amount of decrease in Principal Amount at Maturity of this Global Note | Amount of increase in Principal Amount at Maturity of this Global Note | Principal Amount at Maturity of this Global Note following such decrease
(or increase) | Signature of authorized officer of Trustee or Custodian |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
[To be inserted for Regulation S Global Note]
The following transfer or exchange of a part of this Regulation S Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Regulation S Global Note, or to reflect a redemption or repurchase of the Notes and cancellation, have been made:
| | | | | | | | | | | | | | |
| Date of Increase or Decrease | Amount of decrease in Principal Amount at Maturity of this Global Note | Amount of increase in Principal Amount at Maturity of this Global Note | Principal Amount at Maturity of this Global Note following such decrease
(or increase) | Signature of authorized officer of Trustee or Custodian |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Sensata Technologies B.V.
c/o Sensata Technologies, Inc.
529 Pleasant Street
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Financial Officer
The Bank of New York Mellon
Corporate Trust Division
240 Greenwich Street, 7th Floor East
New York, NY 10286
Facsimile No.: (212) 815-5366
Attention: Corporate Trust Division
Re: 4.000% Senior Notes due 2029
Reference is hereby made to the Indenture, dated as of March 29, 2021 (the “Indenture”), among Sensata Technologies B.V., a private company with limited liability incorporated under Dutch law, as issuer (the “Issuer”), the Guarantors party thereto and The Bank of New York Mellon, a New York banking corporation, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
___________________, (the “Transferor”) owns and proposes to transfer the Note[s] or interests in such Note[s] specified in Annex A hereto, in the principal amount of $___________ in such Note[s] or interests (the “Transfer”), to ___________________________ (the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1.__ Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.
2.__ Check if Transferee will take delivery of a beneficial interest in a Legended Regulation S Global Note or a Restricted Definitive Note pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is
not being made to a Person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Legended Regulation S Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.
3.__ Check and complete if Transferee will take delivery of a beneficial interest in a Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):
(a)__ such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;
or
(b)__ such Transfer is being effected to Sensata Technologies B.V. or a subsidiary thereof;
or
(c)__ such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act;
or
(d)__ such Transfer is being effected to an Institutional Accredited Investor and pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Note or Restricted Definitive Notes and the requirements of the exemption claimed, which certification is supported by, if such Transfer is in respect of a principal amount of Notes at the time of transfer of less than $100,000, an opinion of counsel acceptable to the Issuer provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the effect that such Transfer is in compliance with the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Notes and in the Indenture and the Securities Act.
4.__ Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a)__ Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
(b)__ Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States, (ii) the Transfer is being made after the expiration of the Restricted Period, and (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
(c)__ Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
| | | | | |
| |
| [Insert Name of Transferor] |
| By: |
| Name:
Title: |
| |
| Dated: | |
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) __ a beneficial interest in the:
(i) __ 144A Global Note (CUSIP _________), or
(ii) __ Regulation S Global Note (CUSIP _________); or
(b) __ a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) __ a beneficial interest in the:
(i) __ 144A Global Note (CUSIP _________), or
(ii) __ Regulation S Global Note (CUSIP _________), or
(iii) __ Unrestricted Global Note (CUSIP _________); or
(b) __ a Restricted Definitive Note; or
(c) __ an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Sensata Technologies B.V.
c/o Sensata Technologies, Inc.
529 Pleasant Street
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Financial Officer
The Bank of New York Mellon
Corporate Trust Division
240 Greenwich Street, 7th Floor East
New York, NY 10286
Facsimile No.: (212) 815-5366
Attention: Corporate Trust Division
Re: 4.00% Senior Notes due 2029
Reference is hereby made to the Indenture, dated as of March 29, 2021 (the “Indenture”), among Sensata Technologies B.V., a private company with limited liability incorporated under Dutch law, as issuer (the “Issuer”), the Guarantors party thereto and The Bank of New York Mellon, a New York banking corporation, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
__________________________, (the “Owner”) owns and proposes to exchange the Note[s] or interests in such Note[s] specified herein, in the principal amount of $____________ (CUSIP ____________; ISIN ____________) in such Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note
(a)__ Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(b)__ Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(c)__ Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(d)__ Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes
(a)__ Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.
(b)__ Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE] ____ 144A Global Note/ ____ Regulation S Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
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EXHIBIT D
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally Guaranteed, to the extent set forth in and subject to the provisions in the Indenture dated as of March 29, 2021, (as amended, modified or supplemented from time to time, the “Indenture”) among Sensata Technologies B.V., a private company with limited liability incorporated under Dutch law, the Guarantors party thereto, and The Bank of New York Mellon, a New York banking corporation, as trustee (the “Trustee”), (a) prompt payment of the principal of, premium, if any, and accrued and unpaid interest and defaulted interest, if any, on the Notes when due, whether at maturity, by acceleration, redemption or otherwise, and the prompt payment of interest on overdue principal, premium, if any, and interest and defaulted interest, if any, on the Notes (pursuant to Section 2.12 of the Indenture), if lawful (subject in all cases to any applicable grace periods provided in the Indenture and the Notes) when due, and all other obligations of the Issuer to the Holders or the Trustee under the Indenture and the Notes will be promptly paid in full, all in accordance with the terms of the Indenture and the Notes and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same will be promptly paid in full when due in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the Note Guarantee and the Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee (including Sections 12.08 and 12.09 of the Indenture on Governing Law and Jurisdiction, respectively). Each Holder of a Note, by accepting the same, agrees to and shall be bound by such provisions. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS HEREOF, each Guarantor has caused this Notation of Guarantee to be signed manually, by facsimile or electronically by its duly authorized officer.
[NAME OF GUARANTOR]
EXHIBIT E
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of ________________, 20___, among __________________ (the “New Guarantor”), a subsidiary of Sensata Technologies B.V., a private company with limited liability incorporated under Dutch law (the “Issuer”), the Issuer, and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Issuer and certain Subsidiaries of the Issuer have heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified, the “Indenture”), dated as of March 29, 2021 providing for the issuance of 4.000% Senior Notes due 2029 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantor shall execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantor shall unconditionally Guarantee all of the Issuer’s obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and the Issuer are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the 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. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Issuer, the Parent, any other direct or indirect parent entity of the Issuer or any Subsidiary of the Issuer, as such, will have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to the New Guarantor shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. JURISDICTION; WAIVER OF JURY TRIAL. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantee of the New Guarantor or this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
[NEW GUARANTOR]
By:
Name:
Title:
SENSATA TECHNOLOGIES B.V.
By:
Name:
Title:
THE BANK OF NEW YORK MELLON as Trustee
By:
Name:
Title:
SENSATA TECHNOLOGIES B.V.
AND
THE GUARANTORS NAMED HEREIN
$250,000,000
4.000% SENIOR NOTES DUE 2029
FIRST SUPPLEMENTAL INDENTURE
Dated as of April 8, 2021
THE BANK OF NEW YORK MELLON
Trustee
TABLE OF CONTENTS
Page
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| Article 1
Indenture and definitions |
Section 1.01 Provisions of the Indenture | |
Section 1.02 Definitions | |
| Article 2
THE ADDITIONAL NOTES |
Section 2.01 The Additional Notes | |
| Article 3
MISCELLANEOUS PROVISIONS |
Section 3.01 Consent to Service; Jurisdiction; Governing Law; Currency | |
Section 3.02 Waiver of Jury Trial | |
Section 3.03 Severability of Invalid Provisions | |
Section 3.04 Execution in Counterparts | |
Section 3.05 Certain Matters | |
FIRST SUPPLEMENTAL INDENTURE dated as of April 8, 2021 among Sensata Technologies B.V., a private company with limited liability incorporated under Dutch law (the “Issuer”), the Guarantors party to the Indenture referenced below, and The Bank of New York Mellon, a New York banking corporation, as Trustee under the Indenture referenced below, to the Indenture referenced below.
WHEREAS, the Issuer, the Guarantors and BNYM, as Trustee, entered into an Indenture dated as of March 29, 2021 (the “Indenture”) to establish and issue $750,000,000 in aggregate principal amount of the Issuer’s 4.000% Senior Notes due 2029 (the “Initial Notes”);
WHEREAS, the Indenture provides for the issuance by the Issuer from time to time thereunder, without the consent of the Holders, of Additional Notes of the same series as the Initial Notes and with terms and conditions identical to those of the Initial Notes (except for, as applicable, the issue date, the issue price, the interest accrual date and/or the initial interest payment date thereof), which Additional Notes will be consolidated and form a single class with the Initial Notes for all purposes under the Indenture;
WHEREAS, the Issuer desires to issue an additional $250,000,000 in aggregate principal amount of its 4.000% Senior Notes due 2029 as Additional Notes under the Indenture as supplemented hereby (the “Additional Notes” and, together with the Initial Notes, the “Notes”), the terms and provisions of which Additional Notes are to be as specified in the Indenture and this First Supplemental Indenture, and the Guarantors desire to Guarantee the obligations of the Issuer with respect thereto, as provided in Article 10 of the Indenture;
WHEREAS, the Issuer and the Guarantors have duly authorized the execution and delivery of this First Supplemental Indenture to authorize the issuance of the Additional Notes under the Indenture and the provision of the Guarantors’ Guarantees thereof, as applicable; and
WHEREAS, all actions of the Issuer and the Guarantors necessary to make this First Supplemental Indenture a valid agreement of the Issuer and the Guarantors, in accordance with the terms hereof and of the Indenture, have been done.
NOW, THEREFORE, for and in consideration of the premises and the purchase and acceptance of the Additional Notes by the Holders thereof, the Issuer and the Guarantors covenant and agree with the Trustee as follows:
Article 1
Indenture and definitions
Section 1.01Provisions of the Indenture
Except as otherwise expressly provided herein, all of the definitions, provisions, terms and conditions of the Indenture shall remain in full force and effect. The Indenture, as supplemented by this First Supplemental Indenture, is in all respects ratified and confirmed, and the Indenture and this First Supplemental Indenture shall be read, taken and considered as one
and the same instrument for all purposes, and every Holder of an Additional Note authenticated and delivered under the Indenture as supplemented by this First Supplemental Indenture shall be bound hereby and thereby. Notwithstanding any other provision of this Section 1.01, the Indenture or this First Supplemental Indenture to the contrary, to the extent any provision of this First Supplemental Indenture or any Additional Note issued hereunder shall conflict with any provision of the Indenture, the provisions of this First Supplemental Indenture shall govern.
Section 1.02Definitions
For all purposes of this First Supplemental Indenture and the Additional Notes, except as otherwise expressly provided herein or unless the subject matter or context otherwise requires:
(a)any reference to an “Article” or a “Section” refers to an Article or Section, as the case may be, of this First Supplemental Indenture;
(b)the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this First Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision;
(c)all defined terms used in this First Supplemental Indenture that are defined in the Indenture and not defined in this First Supplemental Indenture have the meanings assigned to them in the Indenture; and
(d)the term “Notes”, as defined in the Indenture and as used therein (including in any definition therein), shall include the Additional Notes in addition to the Initial Notes.
Article 2
THE ADDITIONAL NOTES
Section 1.01The Additional Notes
(a)Pursuant to Section 2.02 of the Indenture, there is hereby authorized the issuance of $250,000,000 in aggregate principal amount of the Issuer’s 4.000% Senior Notes due 2029, which amount shall be specified in the Authentication Order for the Additional Notes pursuant to Section 2.02 of the Indenture. The principal of the Additional Notes shall be due and payable at the Stated Maturity of the principal of the Initial Notes.
(b)The Additional Notes will be part of the same series as the Initial Notes and will be consolidated with and form a single class with the Initial Notes for all purposes under the Indenture, including, but not limited to, for purposes of voting with respect to consents, waivers and amendments regarding the Indenture or the Notes and redemptions of and offers to purchase the Notes.
(c)The Additional Notes will be in the form set forth in the Indenture and will have identical terms (other than issue date and issue price).
(d)Each Guarantor, by its execution hereof, affirms its Note Guarantee as provided in Article 10 of the Indenture with respect to the Additional Notes and acknowledges and agrees that it shall execute a Notation of Guarantee with respect to the Additional Notes to Guarantee the Issuer’s obligations under the Additional Notes as required by the Indenture.
(e)The Issuer confirms its appointment of the Trustee to act as the Registrar and Paying Agent with respect to the Additional Notes as provided in Section 2.03 of the Indenture, and the Trustee confirms its acceptance of such appointment.
Article 3
MISCELLANEOUS PROVISIONS
Section 1.01Consent to Service; Jurisdiction; Governing Law; Currency
Sections 12.08, 12.09(a) and 12.11 of the Indenture are incorporated herein by reference and shall apply, mutatis mutandis, hereto and to the subject matter hereof.
Section 1.02Waiver of Jury Trial
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE INDENTURE, THIS FIRST SUPPLEMENTAL INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 1.03Severability of Invalid Provisions
In case any provision in this First Supplemental Indenture or in the Additional Notes is invalid, illegal or unenforceable, then (to the extent permitted by applicable law) the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
Section 1.04Execution in Counterparts
This First Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this First Supplemental Indenture by facsimile or in electronic format shall be effective as delivery of a manually executed counterpart of this First Supplemental Indenture.
Section 1.05Certain Matters
The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of the Additional Notes and the Guarantors’ Notes Guarantees and Notations of Guarantee with respect thereto, all of which are made solely by the Issuer and the Guarantors, as applicable.
[Signatures on following page]
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed on their respective behalves, all as of the date first written above.
ISSUER:
SENSATA TECHNOLOGIES B.V., as Issuer
By: /s/ Gerrit H. Ensing______________
Name: Gerrit H. Ensing
Title: Director
GUARANTORS:
SENSATA TECHNOLOGIES, INC.
BEI NORTH AMERICA LLC
CRYDOM, INC.
CUSTOM SENSORS & TECHNOLOGIES, INC.
CUSTOM SENSORS & TECHNOLOGIES US CORPORATION
CUSTOM SENSORS & TECHNOLOGIES US LLC
KAVLICO CORPORATION
NEWALL ELECTRONICS INC., each as Guarantor
By: /s/ Paul Vasington______________
Name: Paul Vasington
Title: EVP and Chief Financial Officer
SENSATA TECHNOLOGIES US, LLC
SENSATA TECHNOLOGIES US II, LLC, each as Guarantor
By: /s/ Paul Vasington______________
Name: Paul Vasington
Title: Manager:
STI HOLDCO, INC., as Guarantor
By: /s/ Paul Vasington______________
Name: Paul Vasington
Title: Director
CDI NETHERLANDS B.V.
SENSATA TECHNOLOGIES HOLDING COMPANY MEXICO, B.V.
SENSATA TECHNOLOGIES HOLLAND B.V., each as Guarantor
By: /s/ Gerrit H. Ensing______________
Name: Gerrit H. Ensing
Title: Director
SENSATA TECHNOLOGIES BULGARIA EOOD, as a Guarantor
By: /s/ Gerrit H. Ensing______________
Name: Gerrit H. Ensing
Title: Director
SENSATA TECHNOLOGIES BERMUDA LTD., as a Guarantor
By: /s/ George Verras______________
Name: George Verras
Title: Director
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita______________ |
AUGUST UK HOLDCO LIMITED, as Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita______________ |
CUSTOM SENSORS & TECHNOLOGIES NEWCO LTD., as Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita______________ |
SENSATA TECHNOLOGIES UK FINANCING CO. PLC, as Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita______________ |
ST SCHRADER HOLDING COMPANY UK LIMITED, as Guarantor | Director |
SENSATA TECHNOLOGIES JAPAN LIMITED., as a Guarantor
By: /s/ Song Changhwan______________
Name: Song Changhwan
Title: Representative Director
AUGUST BRAZIL HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 168084,
as Guarantor
By: /s/ Joseph Barberia______________
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST BRAZIL HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 168084,
as Guarantor
By: /s/ Dylan Davies______________
Name: Dylan Davies
Title: Manager (Class B)
AUGUST LUX HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167704,
as Guarantor
By: /s/ Joseph Barberia______________
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST LUX HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167704,
as Guarantor
By: /s/ Dylan Davies______________
Name: Dylan Davies
Title: Manager (Class B)
AUGUST LUXUK HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167757,
as Guarantor
By: /s/ Joseph Barberia______________
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST LUXUK HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167757,
as Guarantor
By: /s/ Dylan Davies______________
Name: Dylan Davies
Title: Manager (Class B)
ST AUGUST LUX COMPANY S.A.R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192229,
as Guarantor
By: /s/ Joseph Barberia______________
Name: Joseph Barberia
Title: Manager (Class A)
ST AUGUST LUX COMPANY S.A.R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192229,
as Guarantor
By: /s/ Dylan Davies______________
Name: Dylan Davies
Title: Manager (Class B)
ST AUGUST LUX INTERMEDIATE HOLDCO S.A.R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192214,
as Guarantor
By: /s/ Joseph Barberia______________
Name: Joseph Barberia
Title: Manager (Class A)
ST AUGUST LUX INTERMEDIATE HOLDCO S.A.R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192214,
as Guarantor
By: /s/ Dylan Davies______________
Name: Dylan Davies
Title: Manager (Class B)
THE BANK OF NEW YORK MELLON, as Trustee, Registrar and Paying Agent
By: /s/ Wanda Camacho______________
Name: Wanda Camacho
Title: Vice President
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of May 24, 2021, among GIGAVAC, LLC (the “New US Guarantor”), a subsidiary of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Issuer”), Sensata Technologies Malta Ltd (the “New Maltese Guarantor”), a subsidiary of the Issuer, Sensata Malta Holding Ltd (the “New Maltese Holdco Guarantor” and, together with the New Maltese Guarantor and the New US Guarantor, the “New Guarantors”), a subsidiary of the Issuer, the Issuer and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Issuer and certain of its Subsidiaries have heretofore executed and delivered to the Trustee an indenture, dated as of March 29, 2021 (as amended, supplemented or otherwise modified, the “Indenture”), providing for the issuance by the Issuer of 4.000% Senior Notes due 2029 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantors shall execute and deliver to the Trustee a supplemental indenture pursuant to which each New Guarantor shall unconditionally Guarantee all of the Issuer’s obligations under the Notes and the Indenture on the terms and conditions set forth herein and therein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and the Issuer are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, each 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. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture, and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Issuer, the Parent, any other direct or indirect parent entity of the Issuer or any Subsidiary of the Issuer, as such, will have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to each New Guarantor shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. JURISDICTION; WAIVER OF JURY TRIAL. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantee of each New Guarantor or this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
GIGAVAC, LLC, as the New US Guarantor
By: Sensata Technologies, Inc., its sole member
By: /s/ Frank E. DeVita
Name: Frank E. DeVita
Title: Treasurer
SENSATA TECHNOLOGIES MALTA LTD, as the New Maltese Guarantor
By: /s/ Shannon M. Votava
Name: Shannon M. Votava, Esq.
Title: Director
SENSATA MALTA HOLDING LTD, as the New Maltese Subsidiary Guarantor
By: /s/ Shannon M. Votava
Name: Shannon M. Votava, Esq.
Title: Director
SENSATA TECHNOLOGIES B.V., as the Issuer
By: /s/ Gerrit H. Ensing
Name: Gerrit H. Ensing
Title: Director
THE BANK OF NEW YORK MELLON, as Trustee
[Signature Page to Supplemental Indenture – 2029 Notes]
By: /s Wanda Camacho
Name: Wanda Camacho
Title: Vice President
[Signature Page to Supplemental Indenture – 2029 Notes]
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of October 24, 2022, among Dynapower Company LLC, a Delaware limited liability company (“Dynapower”) and an indirect subsidiary of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Issuer”), Xirgo Technologies, LLC, a Delaware limited liability company (“Xirgo”) and an indirect subsidiary of the Issuer, SmartWitness USA, LLC, an Illinois limited liability company (“SmartWitness” and, together with Dynapower and Xirgo, the “New Guarantors” and each a “New Guarantor”) an indirect subsidiary of the Issuer, the Issuer and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Issuer and certain of its Subsidiaries have heretofore executed and delivered to the Trustee an indenture dated as of March 29, 2021 (as amended, supplemented or otherwise modified, the “Indenture”), providing for the issuance by the Issuer of 4.000% Senior Notes due 2029 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantors shall execute and deliver to the Trustee a supplemental indenture pursuant to which each New Guarantor shall unconditionally Guarantee all of the Issuer’s obligations under the Notes and the Indenture on the terms and conditions set forth herein and therein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and the Issuer are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, each 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. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture, and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Issuer, the Parent, any other direct or indirect parent entity of the Issuer or any Subsidiary of the Issuer, as such, will have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Indenture or the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to each New Guarantor shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. JURISDICTION; WAIVER OF JURY TRIAL. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantee of each New Guarantor or this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
DYNAPOWER COMPANY LLC, as a New Guarantor
By: DP Acquisition Corporation, its sole member
By: /s/ Frank E. DeVita__________________
Name: Frank E. DeVita
Title: Treasurer
XIRGO TECHNOLOGIES, LLC, as a New Guarantor
By: Xirgo Technologies Intermediate Holdings,
LLC, its sole member
By: Sensata Technologies, Inc., its managing
member
By: /s/ Frank E. DeVita_______________
Name: Frank E. DeVita
Title: Treasurer
SMARTWITNESS USA, LLC, as a New Guarantor
By: SmartWitness Holdings, Inc., its sole member
By: /s/ Frank E. DeVita__________________
Name: Frank E. DeVita
Title: Treasurer
SENSATA TECHNOLOGIES, B.V., as the Issuer
By: /s/ Maria G. Freve__________________
Name: Maria G. Freve
Title: Director
[Signature Page to Supplemental Indenture - 2029 Notes]
THE BANK OF NEW YORK MELLON, as Trustee
By: /s/ Teresa H. Wyszomierski______________
Name: Teresa H. Wyszomierski
Title: Vice President
[Signature Page to Supplemental Indenture - 2029 Notes]
SENSATA TECHNOLOGIES B.V.
AND
THE GUARANTORS NAMED HEREIN
$500,000,000
5.875% SENIOR NOTES DUE 2030
__________________________________________
INDENTURE
Dated as of August 29, 2022
__________________________________________
THE BANK OF NEW YORK MELLON
Trustee
__________________________________________
TABLE OF CONTENTS
| | | | | | | | |
| | Page |
| ARTICLE 1 |
| | |
| DEFINITIONS AND INCORPORATION BY REFERENCE |
| | |
| Section 1.01 | Definitions | 1 |
| Section 1.02 | Other Definitions | 23 |
| Section 1.03 | Incorporation by Reference of Certain Provisions and Defined Terms in the Trust Indenture Act | 24 |
| Section 1.04 | Rules of Construction | 24 |
| | |
| ARTICLE 2 |
| | |
| THE NOTES |
| | |
| Section 2.01 | Form and Dating | 25 |
| Section 2.02 | Execution and Authentication | 27 |
| Section 2.03 | Agents | 27 |
| Section 2.04 | Paying Agent to Hold Money in Trust | 28 |
| Section 2.05 | Holder Lists | 28 |
| Section 2.06 | Transfer and Exchange | 28 |
| Section 2.07 | Replacement Notes | 41 |
| Section 2.08 | Outstanding Notes | 41 |
| Section 2.09 | Treasury Notes | 42 |
| Section 2.10 | Temporary Notes | 42 |
| Section 2.11 | Cancellation | 42 |
| Section 2.12 | Defaulted Interest | 43 |
| Section 2.13 | Section 2 | 43 |
| | |
| ARTICLE 3 |
| | |
| REDEMPTION AND PREPAYMENT |
| | |
| Section 3.01 | Notices to Trustee | 43 |
| Section 3.02 | Selection of Notes to Be Redeemed | 44 |
| Section 3.03 | Notice of Optional Redemption | 44 |
| Section 3.04 | Effect of Notice of Redemption | 45 |
| Section 3.05 | Deposit of Redemption Price | 45 |
| Section 3.06 | Notes Redeemed in Part | 45 |
| Section 3.07 | Optional Redemption | 46 |
| | |
| | | | | | | | |
| ARTICLE 4 |
| | |
| COVENANTS |
| | |
| Section 4.01 | Payment of Notes | 48 |
| Section 4.02 | Maintenance of Office or Agency | 52 |
| Section 4.03 | Reports | 52 |
| Section 4.04 | Compliance Certificate | 54 |
| Section 4.05 | Corporate Existence | 55 |
| Section 4.06 | [Intentionally Omitted] | 55 |
| Section 4.07 | [Intentionally Omitted] | 55 |
| Section 4.08 | Limitation on Sale and Lease-Back Transactions | 55 |
| Section 4.09 | Limitation on Subsidiary Debt | 56 |
| Section 4.10 | [Intentionally Omitted] | 58 |
| Section 4.11 | [Intentionally Omitted] | 58 |
| Section 4.12 | Limitation on Liens | 58 |
| Section 4.13 | Business Activities | 59 |
| Section 4.14 | Payment of Taxes and Other Claims | 59 |
| Section 4.15 | Offer to Repurchase upon Change of Control | 59 |
| Section 4.16 | Payments for Consent | 61 |
| Section 4.17 | Additional Guarantees | 61 |
| Section 4.18 | [Intentionally Omitted] | 62 |
| Section 4.19 | Suspension of Guarantees Upon Change in Ratings | 62 |
| Section 4.20 | Compliance with Laws | 62 |
| Section 4.21 | Waiver of Stay, Extension or Usury Laws | 63 |
| | |
| ARTICLE 5 |
| | |
| SUCCESSORS |
| | |
| Section 5.01 | Merger, Consolidation, or Sale of Assets | 63 |
| | |
| ARTICLE 6 |
| | |
| DEFAULTS AND REMEDIES |
| | |
| Section 6.01 | Events of Default | 65 |
| Section 6.02 | Acceleration | 67 |
| Section 6.03 | Other Remedies | 69 |
| Section 6.04 | Waiver of Past Defaults | 70 |
| Section 6.05 | Control by Majority | 70 |
| Section 6.06 | Limitation on Suits | 70 |
| Section 6.07 | Rights of Holders of Notes to Receive Payment | 71 |
| Section 6.08 | Collection Suit by Trustee | 71 |
| | | | | | | | |
| Section 6.09 | Trustee May File Proofs of Claim | 72 |
| Section 6.10 | Priorities | 72 |
| Section 6.11 | Undertaking for Costs | 72 |
| | |
| ARTICLE 7 |
| | |
| TRUSTEE |
| | |
| Section 7.01 | Duties of Trustee | 73 |
| Section 7.02 | Rights of Trustee | 74 |
| Section 7.03 | Individual Rights of Trustee | 75 |
| Section 7.04 | Trustee’s Disclaimer | 75 |
| Section 7.05 | Notice of Defaults | 76 |
| Section 7.06 | Instructions Using Electronic Means | 76 |
| Section 7.07 | Compensation and Indemnity | 77 |
| Section 7.08 | Replacement of Trustee | 78 |
| Section 7.09 | Successor Trustee by Merger, Etc. | 79 |
| Section 7.10 | Eligibility; Disqualification | 79 |
| Section 7.11 | Preferential Collection of Claims Against the Issuer | 79 |
| | |
| ARTICLE 8 |
| | |
| LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
| | |
| Section 8.01 | Option to Effect Legal Defeasance or Covenant Defeasance | 79 |
| Section 8.02 | Legal Defeasance and Discharge | 79 |
| Section 8.03 | Covenant Defeasance | 80 |
| Section 8.04 | Conditions to Legal or Covenant Defeasance | 81 |
| Section 8.05 | Deposited Money and U.S. Government Securities to Be Held in Trust; Other Miscellaneous Provisions | 82 |
| Section 8.06 | Repayment to the Issuer | 82 |
| Section 8.07 | Reinstatement | 83 |
| | |
| ARTICLE 9 |
| | |
| AMENDMENT, SUPPLEMENT AND WAIVER |
| | |
| Section 9.01 | Without Consent of Holders of Notes | 83 |
| Section 9.02 | With Consent of Holders of Notes | 84 |
| Section 9.03 | [Intentionally Omitted] | 86 |
| Section 9.04 | Revocation and Effect of Consents | 86 |
| Section 9.05 | Notation on or Exchange of Notes | 86 |
| | | | | | | | |
| Section 9.06 | Trustee to Sign Amendments, Etc. | 86 |
| ARTICLE 10 |
| | |
| GUARANTEES |
| | |
| Section 10.01 | Guarantee | 87 |
| Section 10.02 | Limitation on Guarantor Liability | 88 |
| Section 10.03 | Execution and Delivery of Guarantee | 89 |
| Section 10.04 | Guarantors May Consolidate, Etc., on Certain Terms | 89 |
| Section 10.05 | Releases | 89 |
|
| ARTICLE 11 |
| SATISFACTION AND DISCHARGE |
| | |
| Section 11.01 | Satisfaction and Discharge | 90 |
| Section 11.02 | Application of Trust Money | 91 |
| | |
| ARTICLE 12 |
| | |
| MISCELLANEOUS |
| | |
| Section 12.01 | [Intentionally Omitted | 92 |
| Section 12.02 | Notices | 92 |
| Section 12.03 | Communication by Holders of Notes with Other Holders of Notes | 93 |
| Section 12.04 | Certificate and Opinion as to Conditions Precedent | 94 |
| Section 12.05 | Statements Required in Certificate or Opinion | 94 |
| Section 12.06 | Rules by Trustee and Agents | 94 |
| Section 12.07 | No Personal Liability of Directors, Officers, Employees and Stockholders | 95 |
| Section 12.08 | Governing Law | 95 |
| Section 12.09 | Jurisdiction; Waiver of Jury Trial | 95 |
| Section 12.10 | Waiver of Immunities | 95 |
| Section 12.11 | Currency Rate Indemnity | 96 |
| Section 12.12 | Successors | 96 |
| Section 12.13 | Severability | 96 |
| Section 12.14 | Counterpart Originals | 96 |
| Section 12.15 | Table of Contents, Headings, Etc. | 96 |
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF NOTATION OF GUARANTEE
Exhibit E FORM OF SUPPLEMENTAL INDENTURE
INDENTURE dated as of August 29, 2022 among Sensata Technologies B.V., a private company with limited liability incorporated under Dutch law (the “Issuer”), the Guarantors (as defined herein) and The Bank of New York Mellon, a New York banking corporation, as Trustee. The Issuer is an indirect wholly owned subsidiary of Sensata Technologies Holding plc (“Parent”) on the Issue Date.
The Issuer, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined herein) of (a) the $500,000,000 aggregate principal amount of the Issuer’s 5.875% Senior Notes due 2030 (the “Initial Notes”) and (b) any Additional Notes (as defined herein) that may be issued after the date hereof (all such securities in clauses (a) and (b) being referred to collectively as the “Notes”):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01Definitions.
“144A Global Note” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will initially be issued in a denomination equal to the outstanding principal amount at maturity of the Notes initially sold in reliance on Rule 144A.
“2023 Notes” means the $500,000,000 aggregate principal amount of 4.875% Senior Notes due 2023 issued by the Issuer and Guaranteed by certain of the Issuer’s Subsidiaries.
“2024 Notes” means the $400,000,000 aggregate principal amount of 5.625% Senior Notes due 2024 issued by the Issuer and Guaranteed by certain of the Issuer’s Subsidiaries.
“2025 Notes” means the $700,000,000 aggregate principal amount of 5.000% Senior Notes due 2025 issued by the Issuer and Guaranteed by certain of the Issuer’s Subsidiaries.
“2029 Notes” means the $1,000,000,000 aggregate principal amount of 4.000% Senior Notes due 2029 issued by the Issuer and Guaranteed by certain of the Issuer’s Subsidiaries.
“2030 Notes” means the $450,000,000 aggregate principal amount of 4.375% Senior Notes due 2030 issued by STI and Guaranteed by the Issuer and certain of its Subsidiaries.
“2031 Notes” means the $750,000,000 aggregate principal amount of 3.750% Senior Notes due 2031 issued by STI and Guaranteed by the Issuer and certain of its Subsidiaries.
“Additional Notes” means additional Notes (other than the Initial Notes) in an unlimited principal amount issued under this Indenture after the Issue Date in accordance with Sections 2.02 and 4.09 hereof, as part of the same series as the Initial Notes.
“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” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), 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.
“Agent” means any Registrar, co-registrar, Paying Agent, transfer agent, additional paying agent or other agent appointed hereunder.
“Aggregate Debt” means the sum of the following as of the date of determination: (1) the sum of the then outstanding aggregate principal amount of (a) the Indebtedness of the Issuer and its Subsidiaries incurred after the Issue Date and secured by Liens not permitted by Section 4.12(a) and (b) Indebtedness of the Issuer and its Subsidiaries secured by a Lien under the Credit Agreement that is outstanding on the Issue Date less the amount of such Indebtedness that has subsequently been repaid; (2) the then outstanding aggregate principal amount of all Subsidiary Debt incurred after the Issue Date and not permitted by Section 4.09(b); provided that any such Subsidiary Debt will be excluded from this clause (2) to the extent that such Subsidiary Debt is included in clause (1) or (3) of this definition; and (3) the then existing Attributable Liens of the Issuer and its Subsidiaries in respect of sale and lease-back transactions entered into after the Issue Date pursuant to Section 4.08(b); provided that any such Attributable Liens will be excluded from this clause (3) to the extent that the Indebtedness relating thereto is included in clause (1) or (2) of this definition.
“Applicable Premium” means, with respect to any Note on any redemption date and as calculated by the Issuer, the greater of:
(1) 1.0% of the principal amount of such Note; and
(2) the excess, if any, of (a) the present value at such redemption date of (i) the redemption price of such Note that would apply if such Note were redeemed on September 1, 2025 (such redemption price (expressed in percentage of principal amount) being set forth in the table appearing in Section 3.07(c) hereof), plus (ii) all remaining scheduled payments of interest due on such Note to and including September 1, 2025 (excluding accrued but unpaid interest, if any, to, but excluding, the redemption date), with respect to each of subclause (i) and (ii), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over (b) the principal amount of such Note.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the relevant Depositary that apply to such transfer or exchange.
“Attributable Liens” means in connection with a sale and lease-back transaction the lesser of: (1) the fair market value of the assets subject to such transaction, as determined in good faith by the Issuer’s Board of Directors; and (2) the present value (discounted at a rate of 10% per annum compounded monthly) of the obligations of the lessee for rental payments during the shorter of the term of the related lease or the period through the first date on which the Issuer or the applicable Subsidiary may terminate the lease.
“Bankruptcy Law” means (i) Title 11, United States Code or any similar U.S. federal or state law for the relief of debtors or the administration or liquidation of debtors’ estates for the benefit of their creditors, (ii) the Dutch Bankruptcy Law or any similar Dutch federal or state law for the relief of debtors or the administration or liquidation of debtors’ estates for the benefit of their creditors and (iii) any other similar federal or local law for the relief of debtors or the administration or liquidation of debtors’ estates for the benefit of their creditors in any other applicable jurisdiction, now or hereinafter in effect.
“Beneficial Owner” or “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” will 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,” “Beneficially Owned” and “Beneficial Ownership” 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 having only one general partner, the board of directors of the general partner of the partnership;
(3) with respect to a limited liability company, the conseil de gérance, the conseil d’administration, the managing member or members or any controlling committee of managing members or other governing body thereof; and
(4) with respect to any other Person, the board or committee of such Person serving a similar function.
“Business Day” means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York are authorized or required by law to close.
“Capital Lease” 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 such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP (except for temporary treatment of construction related expenditures under ASC 840-40-15-5, which will ultimately be treated as operating leases upon a sale lease-back transaction).
“Capital Stock” means:
(1) in the case of a corporation, capital stock, shares or share capital;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock;
(3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
(4) 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.
“Cash Equivalents” means any of the following:
(1) readily marketable obligations issued or directly and fully guaranteed or insured by the United States, any state, commonwealth or territory of the United States or any agency or instrumentality thereof, having (i) one of the three highest ratings from either Moody’s or S&P and (ii) maturities of not more than two years from the date of acquisition thereof; provided that the full faith and credit of the United States is pledged in support thereof;
(2) time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) is a lender under the Credit Agreement or (ii)(A) is organized under the laws of the United States, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof, the District of Columbia or the Commonwealth of Puerto Rico and is a member of the Federal Reserve System and (B) has combined capital and surplus of at least $250,000,000 (any such bank in the foregoing clauses (i) or (ii) being an “Approved Domestic Bank”), in each case with maturities of not more than one year from the date of acquisition thereof;
(3) commercial paper and variable or fixed rate notes issued by an Approved Domestic Bank (or by the parent company thereof) or any variable rate note issued by, or guaranteed by a domestic corporation rated “A-2” (or the equivalent thereof) or better by S&P or “P-2” (or the equivalent thereof) or better by Moody’s, in each case with maturities of not more than one year from the date of acquisition thereof;
(4) repurchase agreements entered into by any Person with a bank or trust company or recognized securities dealer (including any lender under the Credit Agreement), in each case, having capital and surplus in excess of $250,000,000 for direct obligations issued by or fully guaranteed or insured by the government or any agency or instrumentality of the United States;
(5) investments, classified in accordance with GAAP as current assets of the Issuer or any of its Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions
having capital of at least $250,000,000 and the portfolios of which are limited such that 95% of such investments are of the character, quality and maturity described in clauses (1), (2), (3), or (4) of this definition;
(6) solely with respect to the Issuer and any Foreign Subsidiary, non-U.S. Dollar denominated (i) certificates of deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Person maintains its chief executive office and principal place of business, provided such country is a member of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least “A-2” or the equivalent thereof or from Moody’s is at least “P-2” or the equivalent thereof (any such bank being an “Approved Foreign Bank”) and maturing within one year of the date of acquisition and (ii) equivalents of demand deposit accounts which are maintained with an Approved Foreign Bank; and
(7) readily marketable obligations issued or directly and fully guaranteed or insured by the government or any agency or instrumentality of the United Kingdom, the Netherlands or any member nation of the European Union whose legal tender is the euro and which are denominated in euro or any other foreign currency comparable in credit quality and tenor to those referred to above and customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Subsidiary organized in such jurisdiction, having (i) one of the three highest ratings from either Moody’s or S&P and (ii) maturities of not more than one year from the date of acquisition thereof; provided that the full faith and credit of the United Kingdom, the Netherlands or any such member nation of the European Union is pledged in support thereof.
“Change of Control” means the occurrence of any of the following:
(1) the sale, lease, transfer or other conveyance, in one or a series of related transactions, of all or substantially all of the assets of the Issuer and its Subsidiaries, taken as a whole, to any Person; or
(2) the Issuer becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Issuer or any entity of which the Issuer is a Subsidiary; provided that so long as the Issuer is a Subsidiary of Parent, no Person or group shall be deemed to be or become a beneficial owner, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Issuer or any entity of which the Issuer is a Subsidiary, as applicable, unless such Person or group shall be or become, directly or
indirectly, a beneficial owner of more than 50% of the total voting power of the Voting Stock of Parent.
“Clearstream” means Clearstream Banking S.A. and any successor thereto.
“Code” means the United States Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to the Code are to the Code, as in effect on the Issue Date, and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.
“Commission” means the U.S. Securities and Exchange Commission.
“Consolidated Depreciation and Amortization Expense” means, with respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees, and other non-cash charges (excluding any non-cash item that represents an accrual or reserve for a cash expenditure for a future period) of such Person and its Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.
“Consolidated Interest Expense” means, with respect to any Person for any period, the sum, without duplication, of: (a) consolidated interest expense of such Person and its Subsidiaries for such period (including amortization of original issue discount, non-cash interest payments (other than imputed interest as a result of purchase accounting), commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing, the interest component of Capital Leases, net payments (if any) pursuant to interest rate Hedging Obligations (any net receipts pursuant to such interest rate Hedging Obligations shall be included as a reduction to Consolidated Interest Expense), but excluding amortization of deferred financing fees or expensing of any bridge or other financing fees, and any loss on the early extinguishment of Indebtedness, in each case, relating to the Specified Financings) and (b) consolidated capitalized interest of such Person and its Subsidiaries for such period, whether paid or accrued and less (c) interest income actually received or receivable in cash for such period; provided, however, that Securitization Fees shall be deemed not to constitute Consolidated Interest Expense.
“Consolidated Net Income” means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided, however, that
(1) any net after-tax extraordinary, unusual or nonrecurring gains or losses (including, without limitation, severance, relocation, signing bonus, transition and other restructuring costs and litigation settlements or losses) shall be excluded;
(2) the Net Income for such period shall not include the cumulative effect of a change in accounting principle(s) during such period;
(3) any net after-tax gains or losses attributable to asset dispositions other than in the ordinary course of business (as determined in good faith by the Board of
Directors of the Issuer) and any gain (or loss) realized upon the sale or other disposition of any Capital Stock of any Person shall be excluded;
(4) the Net Income for such period of any Person that is not a Subsidiary of such Person, or that is accounted for by the equity method of accounting, shall be excluded; provided that, to the extent not already included, Consolidated Net Income of such Person shall be (A) increased by the amount of dividends or other distributions that are actually paid in cash (or to the extent converted into cash) to the referent Person or a Subsidiary thereof in respect of such period and (B) decreased by the amount of any equity of the Issuer in a net loss of any such Person for such period to the extent the Issuer has funded such net loss;
(5) [reserved];
(6) non-cash compensation charges, including any such charges arising from stock options, restricted stock grants or other equity-incentive programs shall be excluded;
(7) any net after-tax gains or losses (less all fees and expenses or charges relating thereto) attributable to the early extinguishment or conversion of Indebtedness or Hedging Obligations shall be excluded;
(8) unrealized gains and losses from Hedging Obligations or “embedded derivatives” that require the same accounting treatment as Hedging Obligations shall be excluded;
(9) the effect of any non-cash items resulting from any amortization, write-up, write-down, write-off or impairment of assets (including intangible assets, goodwill and deferred financing costs but excluding inventory) in connection with any future acquisition, merger, consolidation or similar transaction or any other non-cash impairment charges incurred subsequent to the Issue Date resulting from the application of SFAS Nos. 142 and 144 (excluding any such non-cash item to the extent that it represents an accrual of or reserve for cash expenditures in any future period except to the extent such item is subsequently reversed) shall be excluded;
(10) any purchase accounting adjustments (including the impact of writing up inventory or deferred revenue at fair value), amortization, impairments, write-offs, or non-cash charges with respect to purchase accounting with respect to any acquisition, merger, consolidation, disposition or similar transaction, shall be excluded;
(11) any reasonable expenses or charges incurred in connection with any Equity Offering, investment, acquisition, recapitalization or Indebtedness permitted to be incurred under this Indenture (in each case whether or not consummated) or the offering of the Notes, shall be excluded;
(12) the amount of any restructuring charges or reserves (which, for the avoidance of doubt, shall include retention, severance, systems establishment cost, excess
pension charges, contract termination costs, including future lease commitments, and costs to consolidate facilities and relocate employees), shall be excluded; and
(13) any gains or losses relating to foreign currency transactions, including those relating to mark-to-market of Indebtedness denominated in foreign currencies resulting from the application of GAAP, including pursuant to FAS No. 52, shall be excluded.
To the extent not already included in Consolidated Net Income of such Person and its Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include the amount of proceeds received from business interruption insurance and reimbursements of any expenses or charges that are covered by indemnification or other reimbursement provisions in connection with any sale, conveyance, transfer or disposition of assets permitted under this Indenture.
“Contingent Obligations” means, with respect to any Person, any obligation of such Person Guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, or (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.
“Corporate Trust Office of the Trustee” will be the address of the Trustee specified in Section 12.02 hereof or such other address as to which the Trustee may give notice to the Issuer.
“Credit Agreement” means that certain credit agreement, dated as of May 12, 2011 (as amended from time to time prior to the Issue Date, including by that certain amendment, dated as of September 20, 2019, entered into by (among other parties) the Issuer, STIHBV, STI, and certain other subsidiaries of the Issuer, and by that certain amendment, dated as of June 23, 2022, entered into by (among other parties) STI, STIHBV, the Issuer and certain other subsidiaries of the Issuer and the other parties thereto), among STI, as the borrower, STIHBV, Morgan Stanley Senior Funding, Inc., as Administrative Agent, and the financial institutions from time to time party thereto, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, in each of the foregoing cases as amended, restated, supplemented, modified, renewed, refunded, replaced (whether at maturity or thereafter) or refinanced from time to time in one or more agreements or indentures (in each case with the same or new lenders or institutional investors), including any agreement adding or changing the borrower or guarantor or extending the maturity thereof or otherwise restructuring all or any portion of the Indebtedness thereunder or increasing the amount loaned or issued thereunder or altering the maturity thereof.
“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.
“Definitive Note” means a certificated non-Global Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Increases and Decreases in the Global Note” attached thereto.
“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.01(d) hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture, including DTC, Euroclear and/or Clearstream.
“Derivative Instrument” with respect to a Person, means any contract, instrument or other right to receive payment or delivery of cash or other assets to which such Person, or any Affiliate of such Person that is acting in concert with such Person in connection with such Person’s investment in the Notes (other than a Regulated Bank or Screened Affiliate), is a party (whether or not requiring further performance by such Person), the value and/or cashflows of which (or any material portion thereof) are materially affected by the value and/or performance of the Notes and/or the creditworthiness of the Parent, the Issuer and/or any one or more of the Guarantors (the “Performance References”).
“Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person which, by its terms (or by the terms of any security into which it is convertible or for which it is putable or exchangeable), or upon the happening of any event, matures or is mandatorily redeemable (other than as a result of a change of control or asset sale), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than as a result of a change of control or asset sale), in whole or in part, in each case prior to the date that is 91 days after the earlier of the final maturity date of the Notes or the date the Notes are no longer outstanding; provided, however, that if such Capital Stock is issued to any plan for the benefit of employees of the Issuer or any of its Subsidiaries or transferred by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Issuer or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
“DTC” means The Depository Trust Company.
“EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication,
(1) the provision for taxes based on income or profits, plus franchise or similar taxes, of such Person for such period deducted in computing Consolidated Net Income, plus
(2) Consolidated Interest Expense of such Person for such period to the extent the same was deducted in calculating such Consolidated Net Income, plus
(3) Consolidated Depreciation and Amortization Expense of such Person for such period to the extent such depreciation and amortization were deducted in computing Consolidated Net Income, plus
(4) any other non-cash charges, expenses or losses (including any impairment charges and the impact of purchase accounting, including, but not limited to, the amortization of inventory step-up) reducing Consolidated Net Income for such period (excluding any such charge that represents an accrual or reserve for a cash expenditure for a future period), plus
(5) any net gain or loss resulting from Hedging Obligations relating to currency exchange risk, plus
(6) the amount of any expense for minority interests consisting of Subsidiary income attributable to minority equity interests of third parties in any Guarantor deducted (and not added back) in such period in calculating Consolidated Net Income, plus
(7) Securitization Fees to the extent deducted in calculating Consolidated Net Income for such period, plus
(8) any net after-tax income or loss from discontinued operations and any net after-tax gains or losses on disposal of discontinued operations, less
(9) non-cash items increasing Consolidated Net Income of such Person for such period (excluding any items which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges made in any prior period).
If acquisitions, dispositions, mergers or consolidations (as determined in accordance with GAAP) have been made by the Issuer or any Subsidiary of the Issuer during the Measurement Period or subsequent to such Measurement Period and on or prior to or simultaneously with the date on which EBITDA is calculated, then EBITDA shall be calculated on a pro forma basis assuming that all such acquisitions, dispositions, mergers or consolidations had occurred on the first day of such Measurement Period.
For purposes of this definition, whenever pro forma effect is to be given to an acquisition, disposition, merger or consolidation and the amount of income or earnings relating thereto, the pro forma calculations shall be determined in good faith by a responsible financial or accounting Officer of the Issuer and shall comply with the requirements of Rule 11-02 of Regulation S-X promulgated by the Commission, except that such pro forma calculations may include operating expense reductions for such period resulting from the transaction which is being given pro forma effect that (A) have been realized or (B) for which the steps necessary for realization have been taken (or are taken concurrently with such transaction) or (C) for which the steps necessary for realization are reasonably expected to be taken within the twenty-four month period following such transaction and, in each case, including, but not limited to, (a) reduction in personnel expenses, (b) reduction of costs related to administrative functions, (c) reduction of costs related to leased or owned properties and (d) reductions from the consolidation of operations and streamlining of corporate overhead; provided that, in each case, such adjustments are set forth in a certificate signed by a responsible financial or accounting Officer of the Issuer
which states (i) the amount of such adjustment or adjustments and (ii) in the case of items (B) or (C) above, that such adjustment or adjustments are based on the reasonable good faith beliefs of the Officer executing such certificate at the time of such execution.
“Electronic Means” shall mean the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“Equity Offering” means any public or private sale of common stock or Preferred Stock of the Issuer or any of its direct or indirect parent companies (excluding Disqualified Stock), other than (i) public offerings with respect to common stock of the Issuer or of any of its direct or indirect parent companies registered on Form S-4 or Form S-8 or (ii) an issuance to any Subsidiary of the Issuer.
“Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system, and any successor thereto.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Foreign Subsidiary” means, with respect to any Person, any Subsidiary of such Person that is not incorporated, organized or existing under the laws of the United States, any state thereof or the District of Columbia.
“GAAP” means generally accepted accounting principles in the United States which are in effect on the Issue Date; provided, however, that leases shall continue to be classified and accounted for on a basis consistent with that reflected in the Issuer’s financial statements for the fiscal year ended December 31, 2018 for purposes of all covenant compliance determinations and all other pertinent determinations and purposes under this Indenture, notwithstanding any change in GAAP relating thereto, including with respect to ASC 842. Notwithstanding the foregoing any reports or financial information required to be delivered pursuant to Section 4.03 shall be prepared in accordance with GAAP as in effect on the date thereof. At any time after the adoption of IFRS by the Issuer for its financial statements and reports for all financial reporting purposes, the Issuer may elect to apply IFRS for all purposes of this Indenture, in lieu of GAAP, and, upon any such election, references herein to GAAP shall be construed to mean IFRS as in effect from time to time; provided that (1) any such election once made shall be irrevocable and shall only be made once, except as may be necessary to comply with applicable law, rule or regulation, (2) all financial statements and reports required to be provided after such election pursuant to this Indenture shall be prepared on the basis of IFRS and (3) from and after such election, all ratios, computations and other determinations (A) based on GAAP contained in this Indenture shall be computed in conformity with IFRS and (B) in this Indenture that require the application of GAAP for periods that include fiscal quarters ended
prior to the Issuer’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP. The Issuer shall give notice of any election to the Trustee and the Holders of Notes within 15 days of such election. For the avoidance of doubt, solely making an election (without any other action) referred to in this definition will not be treated as an incurrence of Indebtedness. For purposes of this description, the term “consolidated” with respect to any Person means such Person consolidated with its Subsidiaries.
“Global Note Legend” means the legend set forth in Section 2.06(g)(ii) hereof, which is required to be placed on all Global Notes issued under this Indenture.
“Global Notes” means the 144A Global Note and the Regulation S Global Note.
“Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness or other obligations. When used as a verb, “Guarantee” shall have a corresponding meaning.
“Guarantor” means any Person that provides a Note Guarantee, either on the Issue Date or after the Issue Date in accordance with the terms of this Indenture; provided that upon the release and discharge of such Person from its Note Guarantee in accordance with this Indenture, such Person shall cease to be a Guarantor. On the Issue Date, the Guarantors will be each Subsidiary of the Issuer that is a guarantor under the Credit Agreement.
“Hedging Obligations” means, with respect to any Person, the obligations of such Person under:
(1) currency exchange, interest rate or commodity swap agreements, currency exchange, interest rate or commodity cap agreements and currency exchange, interest rate or commodity collar agreements; and
(2) other agreements or arrangements designed to manage, hedge or protect such Person with respect to fluctuations in currency exchange, interest rates or commodity prices.
“Holder” means a Person in whose name a Note is registered in the register maintained by the Registrar.
“IFRS” means the International Financial Reporting Standards as issued by the International Accounting Standards Board.
“Indebtedness” means, with respect to any Person,
(a) any indebtedness (including principal and premium) of such Person, whether or not contingent:
(i) in respect of borrowed money,
(ii) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or, without duplication, reimbursement agreements in respect thereof),
(iii) representing the deferred and unpaid balance of the purchase price of any property (including Capital Leases), except (a) any such balance that constitutes a trade payable or similar obligation to a trade creditor in each case accrued in the ordinary course of business and (b) any earn-out obligations, until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP, or
(iv) representing any interest rate Hedging Obligations, if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon the balance sheet (excluding the notes thereto) of such Person prepared in accordance with GAAP;
(b) Disqualified Stock of such Person;
(c) to the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on the Indebtedness of another Person (other than by endorsement of negotiable instruments for collection in the ordinary course of business); and
(d) to the extent not otherwise included, Indebtedness of another Person secured by a Lien on any asset owned by such Person (whether or not such Indebtedness is assumed by such Person);
provided, however, that notwithstanding the foregoing, Indebtedness shall be deemed not to include (a) Contingent Obligations incurred in the normal course of business and not in respect of borrowed money, (b) obligations under or in respect of Securitization Financings, or (c) items that would appear as a liability on a balance sheet prepared in accordance with GAAP as a result of the application of EITF 97-10, “The Effect of Lessee Involvement in Asset Construction.”
“Indenture” means this Indenture, as amended or supplemented from time to time.
“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.
“Initial Notes” has the meaning assigned to it in the preamble to this Indenture.
“Institutional Accredited Investor” means an institution that is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not also QIBs.
“Investment Grade” means (1) BBB- (with a stable outlook) or above, in the case of S&P (or its equivalent under any successor Rating Categories of S&P) and Baa3 (with a stable outlook) or above, in the case of Moody’s (or its equivalent under any successor Rating
Categories of Moody’s), or (2) the equivalent to the foregoing in respect of the Rating Categories of any other Rating Agencies.
“Issue Date” means August 29, 2022.
“Joint Venture” means, with respect to any Person, any partnership, corporation or other entity in which up to and including 50% of the Equity Interests is owned, directly or indirectly, by such Person or one or more of its Subsidiaries. A Joint Venture shall not be treated as a Subsidiary.
“Legended Regulation S Global Note” means a Global Note in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will initially be issued in a denomination equal to the outstanding principal amount at maturity of the Notes initially sold in reliance on Rule 903 of Regulation S.
“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, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to constitute a Lien.
“Long Derivative Instrument” means a Derivative Instrument (i) the value of which generally increases, and/or the payment or delivery obligations under which generally decrease, with positive changes to the Performance References and/or (ii) the value of which generally decreases, and/or the payment or delivery obligations under which generally increase, with negative changes to the Performance References.
“Measurement Period” means, at any date of determination, the most recently completed four fiscal quarters of the Issuer or Parent for which financial statements have been filed with the Commission, or in the event that, at any date of determination, neither the Issuer nor Parent is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the most recently completed four fiscal quarters of the Issuer for which internal financial statements are available.
“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
“Net Income” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends or accretion of any Preferred Stock.
“Net Short” means, with respect to a Holder or beneficial owner of the Notes, as of a date of determination, that either (i) the value of its Short Derivative Instruments (if any) exceeds the sum of (x) the value of its Notes plus (y) the value of its Long Derivative Instruments (if any) as of such date of determination or (ii) it is reasonably expected that the
situation described in the foregoing clause (i) would have been the case were a “failure to pay” or “bankruptcy credit event” (each as defined in the 2014 International Swaps and Derivatives Association, Inc. Credit Derivatives Definitions) to have occurred with respect to the Parent, the Issuer or any Guarantor immediately prior to such date of determination.
“Non-U.S. Person” means a Person who is not a U.S. Person.
“Note Guarantee” means any Guarantee of the obligations of the Issuer under this Indenture and the Notes issued hereunder by a Guarantor in accordance with the provisions of this Indenture.
“Notes” has the meaning assigned to it in the preamble to this Indenture. The Initial Notes and any Additional Notes shall be treated as a single class for all purposes under this Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes.
“Offering Memorandum” means that certain final offering memorandum, dated August 15, 2022, relating to the offering and sale of the Initial Notes.
“Officer” means the Chairman of the Board, the Chief Executive Officer, the President, Chief Operating Officer, the Chief Financial Officer, the Chief Accounting Officer, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary, or any director, managing director or member of the managing board, or any equivalent of any of the foregoing, or any Person duly authorized to act for on behalf, of the Issuer or any Guarantor, as applicable.
“Officers’ Certificate” means a certificate signed on behalf of the Issuer or any Guarantor, as applicable, by two Officers of the Issuer or such Guarantor, as applicable, one of whom is the Chairman of the Board of Directors, the Chief Executive Officer, the Chief Operating Officer, the Chief Financial Officer, the Treasurer or the Chief Accounting Officer, or any director, managing director or member of the managing board, or any equivalent of any of the foregoing, of the Issuer or such Guarantor, as applicable; provided that, if the Issuer or such Guarantor, as applicable, has only one Officer, such certificate shall be required to be signed only by such one officer.
“Opinion of Counsel” means an opinion from legal counsel that meets the requirements of Section 12.05 hereof. The counsel may be an employee of or counsel to the Issuer or any Subsidiary of the Issuer.
“Parent” means Sensata Technologies Holding plc, a public limited liability company incorporated under the laws of England and Wales, or any successor or other entity that serves as a parent company to the Issuer.
“Participant” means, with respect to the Depositary, a Person who has an account with the Depositary.
“Performance References” has the meaning set forth in the definition of the term “Derivative Instruments.”
“Permitted Bank Indebtedness” means any Indebtedness of the Issuer or any Subsidiary of the Issuer pursuant to one or more credit facilities with banks or other lenders providing for revolving credit loans or term loans or the issuance of letters of credit or bankers’ acceptances or the like and Guarantees of such Indebtedness by the Issuer or any Subsidiary of the Issuer; provided that the aggregate principal amount of such Permitted Bank Indebtedness at any time outstanding does not exceed $500,000,000.
“Permitted Business” means the business and any services, activities or businesses incidental, or directly related or similar to, any line of business engaged in by the Issuer and its Subsidiaries as of the Issue Date or any business activity that is a reasonable extension, development or expansion thereof or ancillary thereto.
“Permitted Liens” means:
(1) Liens securing Permitted Bank Indebtedness;
(2) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations;
(3) (a) Liens given to secure the payment of the purchase price or other acquisition, installation or construction costs incurred in connection with the acquisition (including acquisition through merger or consolidation) of any Principal Property, including Capital Lease transactions in connection with any such acquisition and including any purchase money Liens, and (b) Liens existing on any Principal Property at the time of acquisition (including acquisition through merger or consolidation) thereof or at the time of acquisition by the Issuer or any Subsidiary of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (a), the Liens shall be given within 12 months after such acquisition and shall attach solely to the Principal Property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof;
(4) Liens in favor of the Issuer or a Subsidiary of the Issuer;
(5) Liens on any Principal Property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such Principal Property;
(6) Liens imposed by law, such as carriers’, warehousemen’s and mechanic’s Liens and other similar Liens arising in the ordinary course of business, Liens in connection with legal proceedings and Liens arising solely by virtue of any statutory or common law provision relating to banker’s Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution;
(7) Liens for taxes, assessments or other governmental charges not yet overdue for a period of more than 30 days or subject to penalties for non-payment or which are being contested in good faith by appropriate proceedings;
(8) Liens to secure the performance of bids, trade or commercial contracts, government contracts, purchase, construction, sales and servicing contracts (including utility contracts), leases, statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business and to secure letters of credit, Guarantees, bonds or other sureties given in connection with the foregoing or in connection with workers’ compensation, unemployment insurance or other types of social security or similar laws and regulations;
(9) licenses of intellectual property of the Issuer and its Subsidiaries granted in the ordinary course of business;
(10) Liens to secure Indebtedness incurred by Foreign Subsidiaries pursuant to Section 4.09(b)(10);
(11) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligation in respect of banker’s acceptances issued or created in the ordinary course of business for the account of such Person to facilitate the purchase, shipment, or storage of such inventory or other goods;
(12) Liens to secure Qualified Securitization Financings;
(13) Liens on stock, partnership or other equity interests in any Joint Venture of the Issuer or any of its Subsidiaries or in any Subsidiary of the Issuer that owns an equity interest in a Joint Venture to secure Indebtedness contributed or advanced solely to that Joint Venture; provided that, in each case, the Indebtedness secured by such Lien is not secured by a Lien on any other property of the Issuer or any Subsidiary of the Issuer;
(14) Liens and deposits securing netting services, business credit card programs, overdraft protection and other treasury, depository and cash management services or incurred in connection with any automated clearing-house transfers of funds or other fund transfer or payment processing services;
(15) Liens on, and consisting of, deposits made by the Issuer or STI, as applicable, to discharge or defease the Notes and this Indenture, the 2023 Notes, the 2024 Notes, the 2025 Notes, the 2029 Notes, the 2030 Notes, the 2031 Notes or any other Indebtedness;
(16) Liens on insurance policies and the proceeds thereof incurred in connection with the financing of insurance premiums;
(17) easements, rights of way, minor encroachments, protrusions, municipal and zoning and building ordinances and similar charges, encumbrances, title defects or other irregularities, governmental restrictions on the use of property or conduct of business, and Liens in favor of governmental authorities and public utilities, that do not
materially interfere with the ordinary course of business of the Issuer and its Subsidiaries, taken as a whole; or
(18) any extension, renewal, substitution or replacement (or successive extensions, renewals, substitutions or replacements), in whole or in part, of any Lien referred to in the preceding clauses (1) through (17), inclusive.
“Person” means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization, limited liability company or government or other entity.
“Preferred Stock” means any Equity Interest with preferential rights of payment of dividends upon liquidation, dissolution or winding up.
“Principal Property” means, with respect to any Person, all of such Person’s interests in any kind of property or asset (including the capital stock in and other securities of any other Person), except such as the Board of Directors by resolution determines in good faith (taking into account, among other things, the materiality of such property to the business, financial condition and earnings of the Issuer and its Subsidiaries taken as a whole) not to be material to the business of the Issuer and its Subsidiaries, taken as a whole.
“Private Placement Legend” means the legend set forth in Section 2.06(g)(i) hereof to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A. “Qualified Securitization Financing” means any Securitization Financing of a Securitization Subsidiary that meets the following conditions: (i) the Board of Directors of the Issuer shall have determined in good faith that such Qualified Securitization Financing (including financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to the Issuer and the Securitization Subsidiary, (ii) all sales of Securitization Assets and related assets to the Securitization Subsidiary are made at fair market value (as determined in good faith by the Issuer) and (iii) the financing terms, covenants, termination events and other provisions thereof shall be market terms (as determined in good faith by the Issuer) and may include Standard Securitization Undertakings. The grant of a security interest in any Securitization Assets of the Issuer or any of its Subsidiaries (other than a Securitization Subsidiary) to secure Indebtedness under the Credit Agreement and any Credit Agreement Refinancing Indebtedness (as defined in the Credit Agreement) with respect thereto shall not be deemed a Qualified Securitization Financing.
“Rating Agency” means (1) S&P and Moody’s or (2) if S&P or Moody’s or both of them are not making ratings publicly available, a nationally recognized statistical rating organization within the meaning of Section 3(62) under the Exchange Act, as the case may be, selected by the Issuer in its discretion, which will be substituted for S&P or Moody’s or both, as the case may be.
“Rating Category” means (1) with respect to S&P, any of the following categories (any of which may include a “+” or a “-”: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or
equivalent successor categories), (2) with respect to Moody’s, any of the following categories: Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories), and (3) the equivalent of any such categories of S&P or Moody’s used by another Rating Agency, if applicable.
“Regulated Bank” means a commercial bank with a consolidated combined capital surplus of at least $5,000,000,000 that is (i) a U.S. depository institution the deposits of which are insured by the Federal Deposit Insurance Corporation; (ii) a corporation organized under section 25A of the U.S. Federal Reserve Act of 1913; (iii) a branch, agency or commercial lending company of a foreign bank operating pursuant to approval by and under the supervision of the Board of Governors under 12 CFR part 211; (iv) a non-U.S. branch of a foreign bank managed and controlled by a U.S. branch referred to in clause (iii); or (v) any other U.S. or non U.S. depository institution or any branch, agency or similar office thereof supervised by a bank regulatory authority in any jurisdiction.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Global Note” means a Legended Regulation S Global Note or an Unlegended Regulation S Global Note, as appropriate.
“Responsible Officer,” when used with respect to the Trustee, means any officer within the Corporate Trust Department of the Trustee (or any successor group of the Trustee) 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, in each case having direct responsibility for the administration of this Indenture.
“Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.
“Restricted Global Note” means a Global Note bearing the Private Placement Legend.
“Restricted Period” means the 40-day distribution compliance period as defined in Regulation S, which period shall terminate (a) on October 8, 2022 with respect to the Initial Notes and (b) on such date as set forth in the applicable supplemental indenture entered into pursuant to Section 9.01(viii) with respect to any Additional Notes.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“Rule 903” means Rule 903 promulgated under the Securities Act.
“Rule 904” means Rule 904 promulgated under the Securities Act.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and any successor to its rating agency business.
“Screened Affiliate” means any Affiliate of a Holder (i) that makes investment decisions independently from such Holder and any other Affiliate of such Holder that is not a Screened Affiliate, (ii) that has in place customary information screens between it and such Holder and any other Affiliate of such Holder that is not a Screened Affiliate, and such screens prohibit the sharing of information with respect to the Parent or any of its Subsidiaries, (iii) whose investment policies are not directed by such Holder or any other Affiliate of such Holder that is acting in concert with such Holder in connection with its investment in the Notes, and (iv) whose investment decisions are not influenced by the investment decisions of such Holder or any other Affiliate of such Holder that is acting in concert with such Holders in connection with its investment in the Notes.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Securitization Assets” means any accounts receivable or other revenue streams subject to a Qualified Securitization Financing.
“Securitization Fees” means reasonable distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Securitization Subsidiary in connection with any Qualified Securitization Financing.
“Securitization Financing” means any transaction or series of transactions that may be entered into by the Issuer or any of its Subsidiaries pursuant to which the Issuer or any of its Subsidiaries may sell, convey or otherwise transfer to (a) a Securitization Subsidiary (in the case of a transfer by the Issuer or any of its Subsidiaries) and (b) any other Person (in the case of a transfer by a Securitization Subsidiary), or may grant a security interest in, any Securitization Assets (whether now existing or arising in the future) of the Issuer or any of its Subsidiaries, and any assets related thereto including, without limitation, all collateral securing such Securitization Assets, all contracts and all guarantees or other obligations in respect of such Securitization Assets, proceeds of such Securitization Assets and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving Securitization Assets and any Hedging Obligations entered into by the Issuer or any such Subsidiary in connection with such Securitization Assets.
“Securitization Repurchase Obligation” means any obligation of a seller of Securitization Assets in a Qualified Securitization Financing to repurchase Securitization Assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including, without limitation, as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, off set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
“Securitization Subsidiary” means any Subsidiary of the Issuer (or another Person) formed for the purposes of engaging in one or more Qualified Securitization Financings and other activities reasonably related thereto.
“Senior Management” means the Chief Executive Officer or the Chief Financial Officer, or the equivalent of the foregoing, of the Issuer or Parent.
“Short Derivative Instrument” means a Derivative Instrument (i) the value of which generally decreases, and/or the payment or delivery obligations under which generally increase, with positive changes to the Performance References and/or (ii) the value of which generally increases, and/or the payment or delivery obligations under which generally decrease, with negative changes to the Performance References.
“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 (except, with respect to each test contained therein, substituting 20 percent instead of 10 percent as the applicable threshold).
“Specified Financings” means the entry into the Credit Agreement and the borrowings made thereunder, the 2023 Notes, the 2024 Notes, the 2025 Notes, the 2029 Notes, the 2030 Notes and the 2031 Notes.
“STI” means Sensata Technologies, Inc., a Delaware corporation and a Subsidiary of the Issuer on the Issue Date.
“STIHBV” means Sensata Technologies Intermediate Holding B.V., a private limited liability company (besloten venootschap met beperke aansprakelijkheid) incorporated under the laws of the Netherlands.
“Standard Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by the Issuer or any Subsidiary of the Issuer which the Issuer has determined in good faith to be customary in a Securitization Financing, including, without limitation, those relating to the servicing of the assets of a Securitization Subsidiary, it being understood that any Securitization Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking.
“Stated Maturity,” when used with respect to any Note or any installment of principal thereof or interest thereon, means the date specified in such Note as the fixed date on which the principal of such Note or such installment of principal or interest is due and payable.
“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 that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and
(2) any partnership, joint venture, limited liability company or similar entity of which (x) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries
of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise and (y) such Person or any Wholly Owned Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
“TIA” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).
“Treasury Rate” means, as of the applicable redemption date, the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) which has become publicly available at least two Business Days prior to the date fixed for prepayment (or, if such Statistical Release is no longer published, any publicly available source for similar market data)) most nearly equal to the period from the redemption date to September 1, 2025; provided, however, that if the period from the redemption date to September 1, 2025 is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Treasury Rate will be obtained by linear interpolation (calculated to the nearest one- twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the period from the redemption date to September 1, 2025 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.
“Trustee” means The Bank of New York Mellon, a New York banking corporation, until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
“Unlegended Regulation S Global Note” means a Global Note in the form of Exhibit A hereto bearing the Global Note Legend, deposited with or on behalf of, and registered in the name of, the Depositary or its nominee and issued upon expiration of the Restricted Period.
“Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required to bear the Private Placement Legend.
“Unrestricted Global Note” means a Global Note that does not bear and is not required to bear the Private Placement Legend.
“U.S. Government Securities” means securities that are
(a) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged; or
(b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of the issuers thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government Securities or a specific payment of principal of or interest on any such U.S. Government Securities held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Securities or the specific payment of principal of or interest on the U.S. Government Securities evidenced by such depository receipt.
“U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act.
“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time ordinarily entitled to vote in the election of the Board of Directors of such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness, at any date, the quotient obtained by dividing: (1) the sum of the products of the number of years from the date of determination to the date of each successive scheduled principal payment of such Indebtedness multiplied by the amount of such payment; by (2) the sum of all such payments.
“Wholly Owned Subsidiary” of any Person means a Subsidiary of such Person, 100% of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares and shares issued to foreign nationals under applicable law) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of such Person or by such Person and one or more Wholly Owned Subsidiaries of such Person.
Section 1.02Other Definitions.
| | | | | |
Term | Defined in Section |
“Additional Amounts” | 4.01 |
“Applicable Law” | 4.01 |
“Authentication Order” | 2.02 |
“Authorized Officers” | 7.06 |
“Change of Control Offer” | 4.15 |
“Change of Control Payment” | 4.15 |
“Change of Control Payment Date” | 4.15 |
“Change in Tax Law” | 3.07 |
“Covenant Defeasance” | 8.03 |
“Event of Default” | 6.01 |
“First Par Call Date” | 3.07 |
“Initial Default” | 6.01 |
“Instructions” | 7.06 |
| | | | | |
Term | Defined in Section |
“Legal Defeasance” | 8.02 |
“Luxembourg Guarantor” | 10.02 |
“Minimum Dollar Denomination” | 2.01 |
“Notation of Guarantee” | 10.03 |
“Paying Agent” | 2.03 |
“Registrar” | 2.03 |
“Relevant Taxing Jurisdiction” | 4.01 |
“Reversion Date” | 4.19 |
“Subsidiary Debt” | 4.09 |
“Successor Company” | 5.01 |
“Suspended Provisions” | 4.19 |
“Suspension Date” | 4.19 |
“Suspension Period” | 4.19 |
“Taxes” | 4.01 |
Section 1.03Incorporation by Reference of Certain Provisions and Defined Terms in the Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision 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 and the Note Guarantees; and
“obligor” on the indenture securities means the Issuer and the Guarantors, respectively, and any successor obligor upon the indenture securities, respectively.
All other terms used in this Indenture that are defined by the TIA, defined by the TIA by reference to another statute or defined by the Commission rule under the TIA have the meanings so assigned to them by such definitions.
This Indenture has not been qualified under the TIA and no provision of the TIA shall be deemed a part of this Indenture except as specifically set forth herein.
Section 1.04Rules of Construction.
Unless the context otherwise requires:
(i)a term has the meaning assigned to it;
(ii)an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(iii)“or” is not exclusive;
(iv)words in the singular include the plural, and words in the plural include the singular;
(v)“will” shall be interpreted to express a command;
(vi)provisions apply to successive events and transactions;
(vii)references to sections of or rules under the Securities Act will be deemed to include substitute, replacement of successor sections or rules adopted by the Commission from time to time; and
(viii)unless otherwise provided in this Indenture or in any Note, the words “execute,” “execution,” “signed” and “signature” and words of similar import used in or related to any document to be signed in connection with this Indenture, any Note or any of the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures and 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 in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest 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 and any other similar state laws based on the Uniform Electronic Transactions Act; provided that, notwithstanding anything herein to the contrary, the Trustee is not under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Trustee pursuant to procedures approved by the Trustee.
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating.
(a)General. The Notes and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The Notes shall be in minimum denominations of $200,000 (the “Minimum Dollar Denomination”) and any integral multiple of $1,000 in excess thereof.
The terms and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and the Issuer, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
(b)Rule 144A Global Notes; Global Notes Generally. Notes offered and sold in reliance on Rule 144A shall be issued initially in the form of a 144A Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for the Depositary and registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated Participants in the Depositary, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided. Each Global Note will represent such of the outstanding Notes as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that
the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee or the custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.
(c)Regulation S Global Notes. Notes offered and sold in reliance on Regulation S shall be issued initially in the form of the Legended Regulation S Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for the Depositary, and registered in the name of the Depositary or the nominee of the Depositary for the accounts of the designated Participants in the Depositary, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided. Following the termination of the Restricted Period, beneficial interests in a Legended Regulation S Global Note shall be exchanged for beneficial interests in an Unlegended Regulation S Global Note pursuant to Section 2.06 and the Applicable Procedures. Simultaneously with the authentication of Unlegended Regulation S Global Notes, the Trustee shall cancel such Legended Regulation S Global Note. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee or the custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.
(d)Depositary. The Issuer has initially appointed DTC to act as Depositary with respect to the Global Notes.
(e)Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” or the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream will be applicable to transfers of beneficial interests in the Regulation S Global Notes that are held by Euroclear or Clearstream, respectively, as Participants in DTC.
(f)None of the Issuer, the Guarantors, the Trustee or any Agent shall have any responsibility or obligation to any beneficial owner of an interest in a Global Note, a member of, or a Participant or Indirect Participant in, the Depositary or other Person, with respect to the accuracy of the records of the Depositary or its nominee or of any Participant, Indirect Participant or member thereof, with respect to any ownership interest in the Global Notes or with respect to the delivery to any Participant, Indirect Participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the Applicable Procedures of the Depositary. The Issuer, the Guarantors, the Trustee and each Agent may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, Participants, Indirect Participants and any beneficial owners.
Section 2.02 Execution and Authentication.
At least one Officer must sign the Notes for the Issuer by manual, facsimile, or electronic signature, which may be delivered by .pdf attachment to an email or by other electronic means.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note will nevertheless be valid.
A Note will not be valid until authenticated by the manual or electronic signature of the Trustee. The signature will be conclusive evidence that the Note has been authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Issuer signed by an Officer of the Issuer (an “Authentication Order”), authenticate Notes for original issue that may be validly issued under this Indenture, including any Additional Notes. Each such Authentication Order shall specify the amount of Notes to be authenticated and such other information as the Trustee may reasonably request. The aggregate principal amount of Notes outstanding at any time may not exceed the aggregate principal amount of Notes authorized for issuance by the Issuer pursuant to one or more Authentication Orders, except as provided in Section 2.07 hereof.
Additional Notes may have an issue date, issue price, aggregate principal amount, interest accrual date or initial payment date different from those of the Initial Notes or any other Additional Notes. Any Additional Notes that are not fungible with the Initial Notes or any other Additional Notes for United States federal income tax purposes shall constitute a separate issue and shall carry a separate “CUSIP” number or “ISIN”. Notwithstanding the foregoing, all Notes issued under this Indenture shall be treated as a single class for all purposes under this Indenture, including for purposes of voting with respect to consents, waivers and amendments regarding this Indenture or the Notes and redemptions of and offers to purchase the Notes.
The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Issuer.
Section 2.03 Agents.
The Issuer will maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar will keep a register of the Notes and of their transfer and exchange. The Issuer may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Issuer may change any Registrar or Paying Agent without notice to any Holder. The Issuer will notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Issuer fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Issuer or any of its Subsidiaries may act as Registrar or Paying Agent.
The Issuer may remove any Registrar or Paying Agent upon written notice to such Registrar or Paying Agent and to the Trustee; provided, however, that no such removal shall become effective until (i) if applicable, acceptance of an appointment by a successor as evidenced by an appropriate agreement entered into by the Issuer and such successor Registrar or Paying Agent, as the case may be, and delivered to the Trustee or (ii) notification to the Trustee that the Trustee shall serve as Registrar or Paying Agent until the appointment of a successor in accordance with clause (i) above. The Registrar or Paying Agent may resign at any time upon written notice to the Issuer and the Trustee; provided, however, that the Trustee may resign as Registrar or Paying Agent only if the Trustee also resigns as Trustee in accordance with Section 7.08.
The Issuer initially appoints the Trustee to act as the Registrar and Paying Agent with respect to the Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Issuer will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium or interest on the Notes, and will notify the Trustee in writing of any default by the Issuer in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by such Paying Agent. Upon payment over to the Trustee, the Paying Agent (if other than the Issuer or a Subsidiary) will have no further liability for the money. If the Issuer or a Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuer, the Trustee will serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee will preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Issuer will furnish or cause the Registrar to furnish to the Trustee at least seven Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes and the Issuer shall otherwise comply with TIA § 312(a).
Section 2.06 Transfer and Exchange.
(a)Transfer and Exchange of Global Notes. A Global Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the Issuer for Definitive Notes if:
(A)The Depositary (1) notifies the Issuer that it is unwilling or unable to continue as Depositary for the Global Notes or (2) has ceased to be a clearing agency registered under the Exchange Act and the Issuer thereupon fails to appoint a successor Depositary within 120 Business Days;
(B)the Issuer, at its option, notifies the Trustee in writing that it elects to cause the issuance of such Definitive Notes in exchange for beneficial interests in the Global Notes; or
(C)there shall have occurred and be continuing a Default or an Event of Default with respect to the Notes.
Upon the occurrence of any of the preceding events in (A), (B) or (C) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a), however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (d).
(b)Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes will be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also will require compliance with either subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(i)Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend; provided, however, that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Legended Regulation S Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person. Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(i).
(ii)All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(i) above, the transferor of such beneficial interest must deliver to the Registrar either:
(A)both (1) and (2):
(1)a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged; and
(2)instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or
(B)both (1) and (2):
(1)a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and
(2)instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (B)(1) above,
provided that in no event shall Definitive Notes be issued upon the transfer or exchange of beneficial interests in the Legended Regulation S Global Note prior to the expiration of the Restricted Period and the receipt by the Registrar of a certificate from the transferor stating that the transfer complies with Rule 903 or Rule 904 of the Securities Act.
Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Notes pursuant to Section 2.06(h) hereof.
(iii)Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.06(b)(ii) above and the Registrar receives the following:
(A)if the transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; and
(B)if the transferee will take delivery in the form of a beneficial interest in the Legended Regulation S Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof.
(iv)Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.06(b)(ii) above and the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or
(2)if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Issuer so requests or if the Applicable Procedures so require, an opinion of counsel in form reasonably acceptable to the Issuer to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
If any such exchange or transfer is effected at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to this subparagraph (iv).
(v)Transfer and Exchange of Beneficial Interests in an Unrestricted Global Note for Beneficial Interests in a Restricted Global Note. Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.
(c)Transfer and Exchange of Beneficial Interests for Definitive Notes.
(i)Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation:
(A)if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;
(B)if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
(C)if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;
(D)if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E)if such beneficial interest is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications, certificates and opinion of counsel required by item (3)(d) thereof, if applicable;
(F)if such beneficial interest is being transferred to the Issuer or any of its Subsidiaries, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G)if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuer shall execute and the Trustee shall authenticate upon receipt of an Authentication Order in accordance with Section 2.02 hereof and deliver to the Person designated in the instructions a Restricted Definitive Note in the appropriate principal amount. Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Restricted Definitive Notes to the Persons in whose names such Notes are so registered. Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section
2.06(c)(i) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.
(ii)Beneficial Interests in Legended Regulation S Global Note to Definitive Notes. Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a beneficial interest in the Legended Regulation S Global Note may not be exchanged for a Definitive Note or transferred to a Person who takes delivery thereof in the form of a Definitive Note prior to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar of a certificate from the transferor stating (x) that the transfer complies with Rule 903 or Rule 904 of the Securities Act; or (y) that the transfer is made pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.
(iii)Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if the Registrar receives the following:
(1)if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or
(2)if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Issuer so requests or if the Applicable Procedures so require, an opinion of counsel in form reasonably acceptable to the Issuer to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(iv)Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof, the Trustee will cause the aggregate principal amount of the Unrestricted Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuer will execute and the Trustee will authenticate upon receipt of an Authentication Order in accordance with Section 2.02 hereof and deliver to the Person designated in the instructions an Unrestricted Definitive Note in the appropriate principal amount. Any Unrestricted Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.06(c)(iv) will be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest requests through instructions to the Registrar from or through the Depositary and the Participant or Indirect Participant. The Trustee will deliver such Unrestricted Definitive Notes to the Persons in whose names such Notes are so registered. Any Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) will not bear the Private Placement Legend.
(d)Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i)Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:
(A)if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;
(B)if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
(C)if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;
(D)if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E)if such Restricted Definitive Note is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications, certificates and opinion of counsel required by item (3)(d) thereof, if applicable;
(F)if such Restricted Definitive Note is being transferred to the Issuer or any of its Subsidiaries, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G)if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate from the transferor to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee will cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global Note, and in the case of clause (C) above, the Regulation S Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if the Registrar receives the following:
(1)if the Holder of such Restricted Definitive Note proposes to exchange such Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or
(2)if the Holder of such Restricted Definitive Note proposes to transfer such Restricted Definitive Note to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Issuer so requests or if the Applicable Procedures so require, an opinion of counsel in form reasonably acceptable to the Issuer to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of this Section 2.06(d)(ii), the Trustee will cancel the Restricted Definitive Note and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.
(iii)Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Unrestricted Definitive Note for a beneficial interest in an Unrestricted Global Note or transfer such Unrestricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraphs (ii) or (iii) above at a time when an Unrestricted Global Note has not yet been issued, the Issuer will issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of the Unrestricted Definitive Note so transferred.
(e)Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Issuer duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder must provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).
(i)Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of a Person or Persons who takes delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:
(A)if the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;
(B)if the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and
(C)if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and opinion of counsel required by item (3) thereof, if applicable.
(ii)Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if the Registrar receives the following:
(1)if the Holder of such Restricted Definitive Note proposes to exchange such Restricted Definitive Note for an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or
(2)if the Holder of such Restricted Definitive Note proposes to transfer such Restricted Definitive Note to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a
certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Issuer so requests, an opinion of counsel in form reasonably acceptable to the Issuer to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of an Unrestricted Definitive Note may transfer such Unrestricted Definitive Note to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Note pursuant to the instructions from the Holder thereof.
(f)[Intentionally Omitted]
(g)Legends. The following legends will appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.
(i)Private Placement Legend.
(A)Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:
“THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN “INSTITUTIONAL ACCREDITED INVESTOR”), (2) AGREES THAT IT WILL NOT, WITHIN [IN THE CASE OF RULE 144A NOTES: ONE YEAR][IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO SENSATA TECHNOLOGIES B.V. OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 903 OR RULE 904 UNDER
THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL, IF SENSATA TECHNOLOGIES B.V. SHALL SO REQUEST), (F) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER IS ANNEXED TO THE INDENTURE AND CAN BE OBTAINED FROM THE TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES OF LESS THAN $200,000 AN OPINION OF COUNSEL ACCEPTABLE TO SENSATA TECHNOLOGIES B.V. THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN [IN THE CASE OF RULE 144A NOTES: ONE YEAR][IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE), THE HOLDER MUST DELIVER THE CERTIFICATE OF TRANSFER RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND SENSATA TECHNOLOGIES B.V. SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS SENSATA TECHNOLOGIES B.V. MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.”
(B)Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii) or (e)(iii) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) will not bear the Private Placement Legend.
(ii)Global Note Legend.
Each Global Note will bear a legend in substantially the following form:
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(A) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE RIGHTS ATTACHING TO THIS GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).”
(h)Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or a Definitive Note, the principal amount of Notes represented by such Global Note will be reduced accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note will be increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
(i)General Provisions Relating to Transfers and Exchanges.
(i)To permit registrations of transfers and exchanges, the Issuer will execute and the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof.
(ii)No service charge will be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.07, 2.10, 3.06, 4.15 and 9.05 hereof).
(iii)The Registrar will not be required to register the transfer of or exchange of any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
(iv)All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes will be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(v)Neither the Registrar nor the Issuer will be required:
(A)to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day the Issuer gives notice of redemption of the Notes under Section 3.03 hereof or makes a Change of Control Offer pursuant to Section 4.15 hereof and ending at the close of business on the day notice is given or the Change of Control Offer is made, as applicable;
(B)to register the transfer of or to exchange any Note selected for redemption in whole or in part or subject to purchase in a Change of Control Offer, except the unredeemed or unpurchased portion of any Note being redeemed or purchased in part; or
(C)in the case of a redemption or a Change of Control Payment Date occurring after a record date but on or before the corresponding interest payment date, register the transfer or exchange of any Note on or after the record date and before the date of redemption or Change of Control Payment Date, as applicable.
(vi)Subject to the rights of Holders as of the relevant record date to receive interest on the corresponding interest payment date and Section 2.12, prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuer may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and
interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Issuer shall be affected by notice to the contrary.
(vii)The Trustee will authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02 hereof.
(viii)Neither the Trustee nor any Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any tax or securities laws with respect to any restrictions on transfer imposed under this Indenture or under applicable law (including any transfers between or among Participants, Indirect Participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Issuer and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Issuer will issue and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Issuer, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuer to protect the Issuer, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuer and the Trustee may charge for their expenses in replacing a Note.
Every replacement Note is an additional obligation of the Issuer and will be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the Trustee except (i) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (ii) Notes for the payment or redemption of which 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, segregated and held in trust by the Issuer (if the Issuer shall act as its own Paying Agent) for the Holders of such Notes; provided that, if such Notes are to be redeemed prior to the maturity thereof, written notice of such redemption has been duly given pursuant to this Indenture, or provision satisfactory to the Trustee shall have been made for giving such notice; and (iii) Notes in substitution for which other Notes shall have been authenticated and delivered, or which shall have been paid, pursuant to the terms of this Indenture (except with respect to any such Note as to which proof satisfactory to the Trustee is presented that such Note is held by a Person in whose hands such Note is a legal, valid and binding obligation of the Issuer). Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee and the Registrar receive proof satisfactory to each of them that the replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay all principal, premium and accrued interest with respect to the outstanding Notes payable on that date and the Paying Agent is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture, then on and after that date such Notes will be deemed to be no longer outstanding and will cease to accrue interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in any direction, request, waiver or consent in the exercise of any discretion, power or authority (whether contained in this Indenture or vested by operation of law) which the Trustee is required, expressly or impliedly, to exercise in or by reference to the interests of the Holders or any of them, Notes owned by the Issuer or any Guarantor, or by an Affiliate of the Issuer or any Guarantor, will be considered as though not outstanding, except that for the purposes of determining whether the Trustee will be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee knows are so owned will be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the Issuer may prepare and the Trustee, upon receipt of an Authentication Order, will authenticate temporary Notes. Temporary Notes will be substantially in the form of certificated Notes but may have variations that the Issuer considers appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuer will prepare and the Trustee will authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the benefits of this Indenture.
Section 2.11 Cancellation.
The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent will forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and will dispose of such canceled Notes in its customary manner (subject to the record retention requirement of the Exchange Act). Certification of the destruction of all canceled Notes will be delivered to the Issuer. The Issuer may not issue new Notes to replace Notes that it has redeemed, purchased or paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Issuer defaults in a payment of interest on the Notes, it will pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Issuer will notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Issuer will fix or cause to be fixed each such special record date and payment date; provided that no such special record date may be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Issuer (or, upon the written request of the Issuer, the Trustee in the name and at the expense of the Issuer) will give or cause to be given to Holders in accordance with Section 12.02 a notice prepared by the Issuer that states the special record date, the related payment date and the amount of such interest to be paid.
Section 2.13 CUSIP Numbers and ISINs.
The Issuer in issuing the Notes may use “CUSIP” numbers and “ISINs” (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers and “ISINs” in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers, either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Trustee in writing of any change in the “CUSIP” numbers or “ISINs.”
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Issuer elects to redeem Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at least five days prior to the date notice of redemption is to be delivered to the Holders of the Notes in accordance with Section 3.03 (unless a shorter time is acceptable to the Trustee), an Officers’ Certificate setting forth:
(i)the clause of this Indenture pursuant to which the redemption shall occur;
(ii)the redemption date;
(iii)the principal amount of Notes to be redeemed;
(iv)the redemption price;
(v)the applicable CUSIP numbers; and
(vi)a statement that the conditions precedent to such redemption have been satisfied.
Section 3.02 Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed at any time, Notes will be selected for redemption as follows:
(i)if the Notes are listed on any national securities exchange, Notes shall be selected in compliance with the requirements of the principal national securities exchange on which the Notes are listed; or
(ii)if the Notes are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem fair and appropriate,
in each case, subject to the Applicable Procedures of DTC as applicable.
In the event of partial redemption of Notes, (i) in the case of Definitive Notes, the particular Notes to be redeemed will be selected, unless otherwise provided herein, by the Trustee not less than 10 days nor more than 30 days prior to the redemption date from the outstanding Notes not previously called for redemption, and (ii) in the case of Global Notes, shall be selected in accordance with the Applicable Procedures of DTC.
The Trustee will promptly notify the Issuer in writing of any Definitive Notes selected for redemption and, in the case of any Definitive Note selected for partial redemption or purchase, the principal amount thereof to be redeemed. No Notes in principal amounts equal to or less than the Minimum Dollar Denomination can be redeemed in part.
Section 3.03 Notice of Optional Redemption.
(a)Notices of optional redemption will be given at least 10 but not more than 30 days before the redemption date to each Holder of Notes to be redeemed in accordance with Section 12.02, except that redemption notices may be given more than 30 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture.
(b)If any Note is to be optionally redeemed, the notice of redemption that relates to that Note will state:
(i)the clause of this Indenture pursuant to which the redemption shall occur;
(ii)the redemption date;
(iii)the principal amount of Notes to be redeemed;
(iv)the redemption price;
(v)applicable CUSIP numbers;
(vi)a statement that the conditions precedent to such redemption have been satisfied.
(c)At the Issuer’s written request delivered at least 15 days prior to the redemption date unless the Trustee consents to a shorter period, the Trustee will give the notice of optional redemption in the Issuer’s name and at its expense; in such event, the Issuer shall provide the Trustee with the information required by this Section 3.03.
(d)If any optional redemption or notice is subject to satisfaction of one or more conditions precedent, the notice shall state that, in the Issuer’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied on or prior to one Business Day prior to the redemption date, or by the redemption date so delayed.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is given in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price and interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date unless the Issuer defaults in the payment of the redemption price or accrued interest or any Additional Amounts.
Section 3.05 Deposit of Redemption Price.
On or prior to 11:00 a.m., New York City time, on the Business Day immediately preceding the redemption date, the Issuer will deposit with the Trustee or with the Paying Agent, money sufficient to pay the redemption price of and accrued interest on all Notes to be redeemed on the redemption date. The Trustee or the Paying Agent will promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the redemption price of, and accrued interest on, all Notes to be redeemed following the redemption date.
If the Issuer complies with the provisions of the preceding paragraph, on and after the redemption date, interest will cease to accrue on the Notes or the portions of Notes called for redemption. If a 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 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 is not so paid upon surrender for redemption because of the failure of the Issuer to comply with the preceding paragraph, interest 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 4.01 hereof.
Section 3.06 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Issuer will issue and, upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the expense of the
Issuer a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered.
Section 3.07 Optional Redemption.
(a)Except pursuant to Sections 3.07(b) through 3.07(e) and 4.15(f), the Notes will not be optionally redeemable by the Issuer; provided, however, the Issuer may acquire the Notes by means other than an optional redemption.
(b)At any time and from time to time prior to September 1, 2025, the Issuer may redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus the Applicable Premium, plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of Holders of record on the record date to receive interest due on the related interest payment date).
(c)At any time and from time to time on or after September 1, 2025, the Issuer may redeem the Notes, in whole or in part, at the redemption prices (expressed as a percentage of principal amount) set forth below, plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of Holders of record on the record date to receive interest due on the related interest payment date):
| | | | | |
| Period Beginning September 1, | Price |
| 2025 | 102.938% |
| 2026 | 101.469% |
| 2027 and thereafter | 100.000% |
(d)At any time and from time to time prior to September 1, 2025, the Issuer may redeem up to 40% of the principal amount of the outstanding Notes (including Additional Notes, if any) with the net cash proceeds of one or more Equity Offerings at a redemption price (expressed as a percentage of principal amount) of 105.875%, plus accrued and unpaid interest, if any, to, but excluding, the redemption date; provided that (i) at least 60% of the aggregate principal amount of Notes issued on the Issue Date and any Additional Notes originally issued under this Indenture after the Issue Date remains outstanding immediately after each such redemption, and (ii) notice of any such redemption is given to the Holders within 90 days of the closing of each such Equity Offering.
(e)The Issuer may, at its option, redeem the Notes, in whole but not in part, at any time upon not less than 10 days’ nor more than 30 days’ notice to the Holders (which notice shall be irrevocable and given in accordance with Section 3.03), at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date, premium, if any, and all Additional Amounts, if any, then due and which will become due on the date of redemption as a result of the redemption or otherwise, if the Issuer determines in good faith that the Issuer or any Guarantor is, or on the next date on which any amount would be payable in respect of the Notes, would be obligated to pay Additional Amounts in respect of the Notes pursuant to the terms and conditions thereof (but, in the case of a Guarantor, only if the payment giving rise to such requirement cannot be made by the Issuer or another Guarantor without the obligation to pay Additional Amounts), which the
Issuer or such Guarantor, as the case may be, cannot avoid by the use of reasonable measures available to it (including, without limitation, making payment through a Paying Agent located in another jurisdiction), as a result of:
(1)any change in, or amendment to, the laws or treaties (or any regulations, official guidance or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction affecting taxation which becomes effective on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction that arises after the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under this Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder); or
(2)any change in the official application, administration, or interpretation of the laws, treaties, regulations, official guidance or rulings of any Relevant Taxing Jurisdiction (including a holding, judgment, or order by a court of competent jurisdiction), on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction that arises after the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under this Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder) (each of the foregoing clauses (1) and (2), a “Change in Tax Law”).
Notwithstanding the foregoing, the Issuer may not redeem the Notes under this provision if a Relevant Taxing Jurisdiction changes under this Indenture and the Issuer is obligated to pay Additional Amounts as a result of a Change in Tax Law of such Relevant Taxing Jurisdiction which was officially announced at the time the latter became a Relevant Taxing Jurisdiction.
In the case of a Guarantor that becomes a party to this Indenture after the Issue Date or a successor Person (including a surviving entity), the Change in Tax Law must become effective after the date that such entity (or another Person organized or resident in the same jurisdiction) first makes a payment on the Notes.
Notwithstanding the foregoing, no such notice of redemption will be given (a) earlier than 90 days prior to the earliest date on which the Issuer or any Guarantor, would be obliged to make such payment of Additional Amounts or withholding if a payment in respect of the Notes or the relevant Note Guarantee, as the case may be, were then due and (b) unless at the time such notice is given, the obligation to pay Additional Amounts remains in effect.
Prior to the giving of any notice of redemption pursuant to this Section 3.07(e), the Issuer will deliver to the Trustee:
(1)an Officers’ Certificate stating that the Issuer is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Issuer so to redeem have occurred (including that such obligation to pay such Additional Amounts
cannot be avoided by the Issuer or any Guarantor or surviving entity taking reasonable measures available to it); and
(2)a written opinion of independent tax advisers of recognized standing qualified under the laws of the Relevant Taxing Jurisdiction to the effect that the Issuer or a Guarantor or surviving entity, as the case may be, is or would be obligated to pay such Additional Amounts as a result of a Change in Tax Law.
The foregoing provisions shall apply mutatis mutandis to any successor Person, after such successor Person becomes a party to this Indenture, with respect to a Change in Tax Law occurring after the time such successor Person becomes a party to this Indenture.
(f) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.05 hereof.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes.
(a)The Issuer will pay or cause to be paid the principal of, premium, if any, and interest on, the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest will be considered paid on the date due if the Paying Agent, if other than the Issuer or a Subsidiary thereof, holds as of 11:00 a.m. Eastern Time on the Business Day prior to the due date money deposited by the Issuer in immediately available funds and designated for and sufficient to pay all principal of, premium, if any, and interest then due and the Paying Agent is not prohibited from paying such money to the Holders on the due date pursuant to the terms of this Indenture.
The Issuer will pay interest on overdue principal at the rate specified therefor in the Notes, and it shall pay interest on overdue installments of interest at the same rate borne by the Notes to the extent lawful.
(b)All payments that the Issuer makes under or with respect to the Notes and that any Guarantor makes under or with respect to any Note Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other similar governmental charges (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of (i) any jurisdiction in which the Issuer or any Guarantor is incorporated, organized, engaged in business for tax purposes or otherwise resident for tax purposes or from or through which the Issuer or any Guarantor, as applicable, makes any payment on the Notes or any department, political subdivision or other governmental authority of or in such jurisdiction having the power to tax (each, a “Relevant Taxing Jurisdiction”), unless withholding or deduction is then required by law or by the interpretation or administration of law. If the Issuer or any Guarantor is required (as determined in the good faith discretion of the Issuer or Guarantor) to withhold or deduct any amount on
account of Taxes imposed or levied by or on behalf of any jurisdiction (or any department, political subdivision or other governmental authority thereof or therein having the power to tax), the Issuer or Guarantor shall be entitled to make such deduction or withholding from any payment made under or with respect to the Notes, and, to the extent such Tax is imposed by a Relevant Taxing Jurisdiction, the Issuer or such Guarantor, as the case may be, shall pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by each Holder or beneficial owner of the Notes after such withholding or deduction (including any such deduction or withholding from such Additional Amounts) will be not less than the amount that would have been received by the Holder or beneficial owner if such Taxes had not been required to be withheld or deducted.
(i) Neither the Issuer nor any Guarantor shall, however, pay Additional Amounts to a Holder or beneficial owner of Notes in respect or on account of:
(A)any Taxes that would not have been imposed or levied but for the existence of any present or former connection between the relevant Holder or beneficial owner (or between a fiduciary, settler, beneficiary, member or shareholder of, or possessor of a power over, the relevant Holder or beneficial owner, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) with such Relevant Taxing Jurisdiction (including, without limitation, as a result of being resident for Tax purposes, or being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction), other than the mere receipt or holding of Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under the Notes, this Indenture or any Note Guarantee;
(B)any Taxes that are imposed or withheld by reason of the failure of the Holder or Beneficial Owner, following the Issuer’s written request addressed to the Holder (and made at a time that would enable the Holder or beneficial owner acting reasonably to comply with that request) to comply with any certification, identification, tax clearance or similar requirements, whether required or imposed by statute, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(C)any estate, inheritance, gift, excise, sales, transfer, personal property or similar Taxes;
(D)any Tax which is payable other than by deduction or withholding from payments made under or with respect to the Notes or Note Guarantees;
(E)any Tax imposed on or with respect to any payment by the Issuer or a Guarantor to the Holder if such Holder is a fiduciary or partnership or person other than the sole beneficial owner of such payment to the extent that Taxes
would not have been imposed on such payment had the beneficiary, partner or other beneficial owner directly held the Note;
(F)any Tax imposed, withheld or levied pursuant to the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021) (a tax which applies to interest payments made or deemed to be made to certain affiliated entities all within the meaning of the Dutch Withholding Tax Act 2021);
(G)any Tax that is imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of the Notes for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the Beneficial Owner or Holder thereof would have been entitled to Additional Amounts had the Notes been presented for payment on any date during such 30-day period;
(H)any Taxes imposed pursuant to Sections 1471 to 1474 (inclusive) of the Code (or any amended or successor version of such sections that is substantially comparable), including any current or future Treasury regulations or other official interpretations or guidance thereunder or any agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, any intergovernmental agreements entered into in connection with the foregoing, and any rules or practices adopted pursuant to any such intergovernmental agreement, and any provisions of any treaty or convention among governmental authorities implementing such sections of the Code; or
(I)any combination of the items above.
(ii)The Issuer and each Guarantor shall (A) make such Tax withholding or deduction as is required by applicable law to be made in respect of any payment by it under or with respect to the Notes and (B) remit the full amount so deducted or withheld to the relevant taxing authority in accordance with applicable law.
(iii)At least 30 calendar days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Issuer and any Guarantor determines that it shall be obligated to withhold or deduct Taxes from such payment for which it will be required to pay Additional Amounts (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it will be promptly thereafter), the Issuer shall deliver to the Trustee an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable and shall set forth such other information (other than the identities of Holders and Beneficial Owners) necessary to enable the Trustee or the Paying Agent, as the case may be, to pay such Additional Amounts to Holders on the relevant payment date.
(iv)The Issuer or the relevant Guarantor shall furnish to the Trustee and each relevant Holder within a reasonable period of time certified copies of tax receipts
evidencing the payment by the Issuer or such Guarantor, as the case may be, of any Taxes imposed or levied by a Relevant Taxing Jurisdiction that were withheld or deducted from a payment made by the Issuer or such Guarantor, as the case may be, under or with respect to the Notes. If, notwithstanding the reasonable best efforts of the Issuer or such Guarantor to obtain such receipts, the same are not obtainable, then the Issuer or such Guarantor shall provide the Trustee and the relevant Holders with other evidence reasonably satisfactory to the Trustee and the relevant Holders of such payment by the Issuer or such Guarantor.
(v)The Issuer and each Guarantor shall pay and indemnify the Holders and the Trustee (if applicable) for (A) any present or future stamp, issue, registration, court or documentary, excise or property taxes or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the execution, issue, delivery or registration of the Notes, any Note Guarantee or this Indenture or any other document or instrument referred to hereunder and any such taxes, charges, duties or similar levies imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes, such Note Guarantee or this Indenture or any such other document or instrument following the occurrence of any Event of Default, and (B) any stamp, court, or documentary taxes (or similar charges or levies) imposed with respect to the receipt of any payments with respect to the Notes or such Note Guarantee. Neither the Issuer nor any Guarantor shall, however, pay such amounts that are imposed (i) on or result from a sale or other transfer or disposition by a Holder or Beneficial Owner (other than the initial resale of the Notes by the initial purchasers) or (ii) to the extent that such amounts become payable upon a voluntary registration made by the Holders of the Notes, any Note Guarantee or this Indenture or any other document or instrument referred to thereunder, if such registration is not necessary to enforce the rights of such Holder under the Notes, any Note Guarantee or this Indenture or any other document or instrument referred thereunder.
(vi)This Section 4.01(b) shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer or any Guarantor is organized, incorporated or otherwise resident for tax purposes and any political subdivision or taxing authority or agency thereof or therein or any jurisdiction from or through which such Person makes any payment on the Notes (or any Note Guarantee) or any political subdivision thereof or therein.
(c)In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to this Indenture in effect from time to time (“Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Issuer agrees (i) to provide to the Trustee and each Paying Agent sufficient information about the parties or transactions (including any modification to the terms of such transactions) so the Trustee and each Paying Agent can determine whether it has tax related obligations under Applicable Law, (ii) that the Trustee and each Paying Agent shall be entitled to make any withholding or deduction from payments to the extent necessary to comply with Applicable Law for which the Trustee and each Paying Agent shall not have any liability, and (iii) to hold harmless the Trustee and each Paying Agent for any
losses it may suffer due to the actions it takes to comply with Applicable Law. The terms of this Section 4.01(c) shall survive the termination, defeasance or discharge of this Indenture.
Section 4.02 Maintenance of Office or Agency.
The Issuer will maintain in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served (other than the type contemplated by Section 12.09). The Issuer 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 fails to maintain any such required office or agency or fails 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.
The Issuer may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission will in any manner relieve the Issuer of its obligation to maintain an office or agency in the Borough of Manhattan, the City of New York 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.
The Issuer hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Issuer in accordance with Section 2.03 hereof.
Section 4.03 Reports.
(a)The Issuer will furnish to the Trustee and the Holders of the Notes in the manner specified below:
(i)within 90 days after the end of each fiscal year, an annual report of the Issuer containing substantially all the financial information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Issuer had been a reporting company under the Exchange Act, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” Section and a report on the annual financial statements by the Issuer’s independent registered public accounting firm; provided that such annual report will not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(ii)within 45 days after the end of each of the first three fiscal quarters of each fiscal year, quarterly reports of the Issuer containing substantially all the financial information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Issuer had been a reporting company under the Exchange Act, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” Section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any
successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(iii)within ten Business Days after the occurrence of each event that would have been required to be reported in a current report on Form 8-K under the Exchange Act if the Issuer had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required to be contained in a current report on Form 8-K under the Exchange Act pursuant to Sections 1, 2 (other than Item 2.02) and 4 and Items 5.01, 5.02 (other than any compensation-related information) and 5.03 of Form 8-K if the Issuer had been a reporting company under the Exchange Act; provided, however, that no such current report will be required to (i) be furnished if the Issuer determines in its good faith judgment that such event is not material to Holders or the business, assets, operations, financial positions or prospects of the Issuer and its Subsidiaries, taken as a whole, or if the Issuer determines in its good faith judgment that such disclosure would otherwise cause material competitive harm to the business, assets, operations, financial position or prospects of the Issuer and its Subsidiaries, taken as a whole; provided further that such non-disclosure shall be limited only to those specific provisions that would cause material competitive harm and not the occurrence of the event itself or (ii) contain financial statements or pro forma financial statements.
(b)None of the reports referenced in Section 4.03(a) will be required to comply with Section 302 or Section 404 of the Sarbanes-Oxley Act of 2002, or related Items 307 and 308 of Regulation S-K promulgated by the Commission, or Item 302 of Regulation S-K or Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or Item 601 of Regulation S-K (with respect to exhibits), in each case, as in effect on the Issue Date, and will not be required to contain the separate financial information for Guarantors contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the Commission or to provide financial statements in interactive data format using the eXtensible Business Reporting Language.
(c)To the extent not satisfied by Section 4.03(a), for so long as any Notes are outstanding and constitute “restricted securities” within the meaning of Rule 144 under the Securities Act, the Issuer will furnish to Holders and to securities analysts and prospective purchasers of the Notes in connection with any sale thereof, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this Section 4.03(c) and Section 4.03(a) may be satisfied by (i) delivering such information electronically to the Trustee and (ii) posting copies of such information on a website (which may be nonpublic and may be maintained by the Issuer or a third party) to which access will be given to Holders and prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)) that certify their status as such to the reasonable satisfaction of the Issuer and who acknowledge the confidentiality of the information.
(d)Notwithstanding Section 4.03(a) through (c), at all times that either the Issuer or Parent is subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the reporting requirements of this Section 4.03 shall be satisfied through the filing with the Commission within the time periods specified in the Commission’s rules and regulations that are then applicable to the Issuer or Parent, as applicable, all the reports on Form 10-K, Form 10-Q and Form 8-K that either the Issuer or Parent, as applicable, is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the Commission.
(e)In the event that the reporting obligation of this Section 4.03 are satisfied through the reports of Parent in accordance with Section 4.03(d) and Parent or any other direct or indirect parent company of the Issuer holds any material assets other than cash, Cash Equivalents and the Capital Stock of the Issuer or any other direct or indirect parent or Subsidiary of the Issuer (and performs the related incidental activities associated with such ownership), then the reports of Parent referenced in Section 4.03(d) shall be accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Parent and such other parent companies, on the one hand, and the information relating to the Issuer and its Subsidiaries on a stand-alone basis, on the other hand.
(f)Notwithstanding anything herein to the contrary, the Issuer will not be deemed to have failed to comply with any of its obligations hereunder for purposes of Section 6.01(a)(iii) until 90 days after the date any report hereunder is due.
(g)Delivery of the above reports to the Trustee is for informational purposes only and the Trustee’s receipt of such reports shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including compliance by the Issuer, any Guarantor or any Subsidiary with any of its covenants in this Indenture (as to which the Trustee is entitled to rely exclusively on an Officers’ Certificate) or any other agreement or document. The Trustee shall have no obligation to determine if and when the Issuer has satisfied its reporting obligations under this Section 4.03. The Issuer shall (i) provide the Trustee with prompt written notification at such time that the Issuer commences or ceases to satisfy its reporting obligation under Section 4.03 through the reports of the Issuer or Parent, as applicable, in accordance with Section 4.03(d) or (ii) provide the Trustee and the Holders the information set forth in Section 4.03(a).
Section 4.04 Compliance Certificate.
(a)The Issuer shall deliver to the Trustee within 120 days after the end of each fiscal year of the Issuer ending December 31, an Officers’ Certificate stating that in the course of the performance by each signer of such signer’s duties as an Officer of the Issuer such signer would normally have knowledge of any Default and whether or not such signer knows of any Default that occurred during such period. If any such signer does, the certificate shall describe the Default, its status and what action the Issuer is taking or proposes to take with respect thereto. The Issuer also shall comply with Section 314(a)(4) of the TIA.
(b)So long as any of the Notes are outstanding, the Issuer will deliver to the Trustee, forthwith upon any Officer becoming aware of any Default or Event of Default, an
Officers’ Certificate specifying such Default or Event of Default and the remedial action the Issuer proposes to take in connection therewith.
Section 4.05 Corporate Existence.
Except as otherwise permitted by Article 5, the Issuer shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence in accordance with its organizational documents.
Section 4.06 [Intentionally Omitted].
Section 4.07 [Intentionally Omitted].
Section 4.08 Limitation on Sale and Lease-Back Transactions.
(a)The Issuer will not, and will not permit any of its Subsidiaries, directly or indirectly, to enter into any sale and lease-back transaction for the sale and leasing back of any Principal Property, whether now owned or hereafter acquired, unless:
(1)such transaction was entered into prior to or within 12 months after the Issue Date;
(2)such transaction was for the sale and leasing back to the Issuer or a Subsidiary of any Principal Property;
(3)such transaction involves a lease of a Principal Property executed by the time of or within 12 months after the latest of the acquisition, the completion of construction or improvement, or the commencement of commercial operation, of such Principal Property;
(4)such transaction involves a lease for not more than three years (or which may be terminated by the Issuer or the applicable Subsidiary within a period of not more than three years);
(5)the Issuer or the applicable Subsidiary would be entitled to incur Indebtedness secured by a mortgage on the property to be leased in an amount equal to Attributable Liens with respect to such sale and lease-back transaction without equally and ratably securing the Notes pursuant to Section 4.12(a); or
(6)the Issuer or the applicable Subsidiary applies an amount equal to the net proceeds from the sale of the Principal Property to the purchase of another Principal Property or to the retirement or other repayment or prepayment of long-term Indebtedness within 365 calendar days before or after the effective date of any such sale and lease-back transaction; provided that in lieu of applying such amount to such retirement, repayment or prepayment, the Issuer or any Subsidiary may
deliver Notes to the Trustee for cancellation, such Notes to be credited at the cost thereof to the Issuer or such Subsidiary.
(b)Notwithstanding Section 4.08(a), the Issuer and its Subsidiaries may enter into any sale and lease-back transaction which would otherwise be subject to the foregoing restrictions if after giving effect thereto and at the time of determination, Aggregate Debt does not exceed an amount equal to the greater of (a) $3,500,000,000, and (b) 3.50 times EBITDA of the Issuer for the Measurement Period immediately preceding the closing date of the sale and lease-back transaction.
Section 4.09 Limitation on Subsidiary Debt.
(a)The Issuer will not permit any of its Subsidiaries to create, assume, incur, Guarantee or otherwise become liable for or suffer to exist any Indebtedness (any Indebtedness of a Subsidiary of the Issuer that is not a Guarantor, “Subsidiary Debt”), without Guaranteeing the payment of the principal of, premium, if any, and interest on the Notes on an unsecured unsubordinated basis.
(b)Section 4.09(a) shall not apply to, and there shall be excluded from Indebtedness in any computation under such restriction, Subsidiary Debt constituting:
(1)Indebtedness of a Person existing at the time such Person is merged into or consolidated with or otherwise acquired by any Subsidiary of the Issuer or at the time of a sale, lease or other disposition of the properties and assets of such Person (or a division thereof) as an entirety or substantially as an entirety to any Subsidiary of the Issuer and is assumed by such Subsidiary; provided that any such Indebtedness was not incurred in contemplation thereof and is not Guaranteed by any other Subsidiary of the Issuer (other than any Guarantee existing at the time of such merger, consolidation or sale, lease or other disposition of properties and assets and that was not issued in contemplation thereof);
(2)Indebtedness of a Person existing at the time such Person becomes a Subsidiary of the Issuer; provided that any such Indebtedness was not incurred in contemplation thereof;
(3)Indebtedness owed to the Issuer or any Subsidiary of the Issuer;
(4)any Subsidiary Debt represented by any Guarantee of, or any other Indebtedness under, the 2023 Notes, the 2024 Notes, the 2025 Notes, the 2029 Notes, the 2030 Notes or the 2031 Notes or any Indebtedness or Guarantees under Permitted Bank Indebtedness;
(5)Indebtedness or Guarantees in respect of netting services, business credit card programs, overdraft protection and other treasury, depository and cash management services or incurred in connection with
any automated clearing-house transfers of funds or other fund transfer or payment processing services;
(6)Indebtedness or Guarantees arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that any such Indebtedness or Guarantee is extinguished within 30 days of its incurrence;
(7)Indebtedness or Guarantees in respect of any Qualified Securitization Financing;
(8)reimbursement obligations incurred in the ordinary course of business;
(9)client advances and deposits received in the ordinary course of business;
(10)Indebtedness or Guarantees incurred by Foreign Subsidiaries in an amount not to exceed $300,000,000 at any time outstanding;
(11)Indebtedness or Guarantees incurred (a) in respect of workers’ compensation claims, payment obligations in connection with health or other types of social security benefits, unemployment or other insurance obligations, reclamation and statutory obligations, (b) in connection with the financing of insurance premiums or self-insurance obligations or take-or-pay obligations contained in supply agreements, and (c) in respect of guarantees, warranty or contractual service obligations, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, letters of credit and banker’s acceptances for operating purposes or to secure any Indebtedness or other obligations referred to in clauses (1) through (9) or this clause (11), payment (other than for payment of Indebtedness) and completion guarantees, in each case provided or incurred (including Guarantees thereof) in the ordinary course of business; or
(12)Indebtedness outstanding on the Issue Date not referred to in clause (4) above and any extension, renewal, replacement, refinancing or refunding of any Indebtedness existing on the Issue Date or referred to in clauses (1), (2) and (4); provided that (x) any Indebtedness incurred to so extend, renew, replace, refinance or refund has a Weighted Average Life to Maturity at the time such Indebtedness is incurred that is not less than the remaining Weighted Average Life to Maturity of the Indebtedness referred to in this clause or clauses (1), (2) and (4) above being extended, renewed, replaced, refinanced or refunded, and (y) the principal amount of the Indebtedness incurred to so extend, renew, replace, refinance or refund
shall not exceed the principal amount of the Indebtedness being extended, renewed, replaced, refinanced or refunded plus any premium or fee (including tender premiums) or other reasonable amounts payable, plus all accrued interest on such Indebtedness and the amount of fees, expenses and other costs incurred, in connection with any such extension, renewal, replacement, refinancing or refunding.
(c)Notwithstanding Sections 4.09(a) and (b), the Issuer or any Subsidiary of the Issuer may, create, incur, issue, assume, Guarantee or otherwise become liable for or suffer to exist Indebtedness that would otherwise be subject to the restrictions set forth in Sections 4.09(a) and (b), without Guaranteeing the Notes, if after giving effect thereto, Aggregate Debt does not exceed an amount equal to the greater of (a) $3,500,000,000, and (b) 3.50 times EBITDA of the Issuer for the Measurement Period immediately preceding the date of the creation or incurrence of the Subsidiary Debt. Any Subsidiary also may, without Guaranteeing the payment of the principal of, premium, if any, and interest on the Notes, extend, renew, replace, refinance or refund any Subsidiary Debt permitted pursuant to the preceding sentence; provided (x) that any Subsidiary Debt incurred to so extend, renew, replace, refinance or refund has a Weighted Average Life to Maturity at the time such Subsidiary Debt is incurred that is not less than the remaining Weighted Average Life to Maturity of the Subsidiary Debt being extended, renewed, replaced, refinanced or refunded, and (y) the principal amount of the Subsidiary Debt incurred to so extend, renew, replace, refinance or refund shall not exceed the principal amount of Subsidiary Debt being extended, renewed, replaced, refinanced or refunded plus any premium or fee (including tender premiums) or other reasonable amounts payable, plus all accrued interest on such Subsidiary Debt and the amount of fees, expenses and other costs incurred, in connection with any such extension, renewal, replacement, refinancing or refunding.
(d)Notwithstanding anything to the contrary, in the event that any Wholly Owned Subsidiary of the Issuer Guarantees the obligations of any borrower under any Credit Agreement, the Issuer shall cause such Wholly Owned Subsidiary, subject to the receipt of any necessary regulatory approvals, to provide a Note Guarantee by executing and delivering to the Trustee a supplemental indenture and a Notation of Guarantee in accordance with the terms of this Indenture.
Section 4.10 [Intentionally Omitted].
Section 4.11 [Intentionally Omitted].
Section 4.12 Limitation on Liens.
(a)The Issuer shall not, and shall not permit any of its Subsidiaries, directly or indirectly, to enter into, create, incur, assume or suffer to exist any Lien on any Principal Property, whether now owned or hereafter acquired, in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except:
(1)Liens existing as of the Issue Date;
(2)Liens granted after the Issue Date created in favor of the Holders of the Notes;
(3)Liens created in substitution of, or as replacements for, any Liens described in clauses (1) and (2) above; provided that based on a good faith determination of Senior Management, the Principal Property encumbered under any such substitute or replacement Lien is substantially similar in nature to the Principal Property encumbered by the otherwise permitted Lien which is being replaced; and
(4)Permitted Liens.
(b) Notwithstanding Section 4.12(a), the Issuer or any Subsidiary of the Issuer may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in Section 4.12(a) if after giving effect thereto, Aggregate Debt does not exceed an amount equal to the greater of (a) $3,500,000,000, and (b) 3.50 times EBITDA of the Issuer for the Measurement Period immediately preceding the date of the creation or incurrence of the Lien. The Issuer or any Subsidiary of the Issuer also may, without equally and ratably securing the Notes, create or incur Liens that extend, renew, substitute or replace (including successive extensions, renewals, substitutions or replacements), in whole or in part, any Lien permitted pursuant to the preceding sentence.
Section 4.13 Business Activities.
The Issuer shall not, and shall not permit any Subsidiary to, engage in any business other than Permitted Businesses, except to such extent as would not be material to the Issuer and its Subsidiaries taken as a whole.
Section 4.14 Payment of Taxes and Other Claims.
The Issuer shall, and shall cause each of its Subsidiaries to, pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (a) 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 (b) all lawful claims for labor, materials and supplies except, in each case, any such tax, assessment, charge or claim as is being contested in good faith by appropriate actions or where the failure to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim is not materially adverse to the Holders.
Section 4.15 Offer to Repurchase upon Change of Control.
(a)If a Change of Control occurs, unless the Issuer at such time has given notice of redemption under Section 3.07(b), Section 3.07(c) or Section 3.07(e) with respect to all outstanding Notes, each Holder will have the right to require the Issuer to repurchase all or any part (in a minimum principal amount of $200,000 and integral multiples of $1,000 in excess thereof) of that Holder’s Notes pursuant to an offer to purchase on the terms set forth in this Indenture (the “Change of Control Offer”). In the Change of Control Offer, the Issuer will offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus
accrued and unpaid interest on the Notes repurchased, to, but excluding, the Change of Control Payment Date (the “Change of Control Payment”). Within 30 days following any Change of Control, unless the Issuer at such time has given notice of redemption under Section 3.07(b), Section 3.07(c) or Section 3.07(e) with respect to all outstanding Notes, the Issuer will give notice to the Trustee and each Holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the date specified in the notice (the “Change of Control Payment Date”), which date will be no earlier than 30 days and no later than 60 days from the date such notice is given, pursuant to the procedures required by this Indenture and described in such notice. The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.15 by virtue of such conflict.
(b)On or prior to 11:00 a.m., New York City time, on the Business Day immediately preceding the Change of Control Payment Date, the Issuer shall, to the extent lawful, deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered.
(c)On the Change of Control Payment Date, the Issuer shall, to the extent lawful:
(i)accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer; and
(ii)deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Issuer.
(d)The Paying Agent shall promptly deliver to each Holder properly tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each new Note will be in a minimum principal amount of $200,000 and integral multiples of $1,000 in excess thereof. The Issuer shall publicly announce the results of the Change of Control Offer by, on or as soon as practicable after the Change of Control Payment Date.
(e)The Issuer shall not be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer or (ii) a valid notice of redemption for all of the Notes has been given, or will be given contemporaneously with the Change of Control, pursuant to Section 3.07(b), Section 3.07(c) or Section 3.07(e) unless and until such notice has been validly revoked (in the case of a redemption pursuant to Section 3.07(b) or Section 3.07(c)) or
there is a default in the payment of the applicable redemption price. A Change of Control Offer may be made in advance of a Change of Control or conditional upon the occurrence of a Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made.
(f)In the event that Holders of not less than 90% in aggregate principal amount of the then outstanding Notes accept a Change of Control Offer and the Issuer (or any third party making such Change of Control Offer in lieu of the Issuer as described above) purchases all of the Notes held by such Holders, the Issuer shall have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the Change of Control Payment Date relating to the Change of Control Offer described above, to redeem all of the Notes that remain outstanding following such Change of Control Payment Date in accordance with Article 3 at a redemption price equal to the Change of Control Payment, plus to the extent not included in the Change of Control Payment, accrued and unpaid interest on the Notes that remain outstanding, to, but excluding, the date of purchase.
Section 4.16 Payments for Consent.
The Issuer shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid and is paid to all Holders that so consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement.
Section 4.17 Additional Guarantees.
(a)On or after the Issue Date, the Issuer shall cause each Subsidiary that is required to Guarantee the payment of principal of, premium, if any, and interest on the Notes pursuant to Section 4.09 to become a Guarantor, within 10 Business Days of the creation, assumption, incurrence or Guarantee of the applicable Subsidiary Debt and the Issuer shall cause each such Subsidiary to execute and deliver to the Trustee within such 10 Business Day period (x) a supplemental indenture in substantially the form attached hereto as Exhibit E and (y) a Notation of Guarantee in substantially the form attached hereto as Exhibit D, pursuant to which such Subsidiary will unconditionally Guarantee, on a joint and several basis, the full and prompt payment of the principal of, premium, if any and interest on the Notes and all other obligations under this Indenture on the same terms and conditions as those set forth in this Indenture.
(b)Each Note Guarantee will be limited to an amount not to exceed the maximum amount that can be Guaranteed by that Subsidiary without rendering the Note Guarantee, as it relates to such Subsidiary, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
(c)Each Note Guarantee shall be automatically released in accordance with the provisions of this Indenture described under Article 11.
Section 4.18 [Intentionally Omitted].
Section 4.19 Suspension of Guarantees Upon Change in Ratings.
(a)If on any date following the Issue Date (1) the Notes are rated Investment Grade by either of the Rating Agencies; and (2) no Default or Event of Default shall have occurred and be continuing, then, beginning on such date (the “Suspension Date”) and subject to the provisions of Section 4.19(b), the Note Guarantees shall be deemed released and the Issuer’s obligation under Section 4.17 shall be suspended (collectively, the “Suspended Provisions”).
(b)During any Suspension Period, any Subsidiary Debt incurred prior to or outstanding as of the Suspension Date shall be deemed to have been incurred in compliance with Section 4.09.
(c)In the event that the Notes are rated below Investment Grade by both Rating Agencies or an Event of Default shall have occurred and be continuing, the Suspended Provisions will be reinstituted as of and from the date on which the Notes are no longer rated Investment Grade by both Rating Agencies or an Event of Default has occurred and is continuing (any such date, a “Reversion Date”). The period of time between the Suspension Date and the Reversion Date is referred to as the “Suspension Period.” Notwithstanding that the Suspended Provisions may be reinstated, no Default or Event of Default will be deemed to have occurred as a result of a failure to comply with the Suspended Provisions during the Suspension Period.
(d)The Issuer and its Subsidiaries may honor any contractual commitments to take actions following a Reversion Date without causing a Default or Event of Default; provided that such contractual commitments were entered into during the Suspension Period and not in contemplation of a reversion of the Suspended Provisions.
(e)The Issuer shall provide an Officers’ Certificate to the Trustee indicating the commencement of any Suspension Period or the occurrence of any Reversion Date. The Trustee will have no obligation to (i) independently determine or verify if such events have occurred, (ii) make any determination regarding the impact of actions taken during the Suspension Period on the Issuer’s and its Subsidiaries’ future compliance with their covenants or (iii) notify the Holders of the commencement of the Suspension Period or the occurrence of any Reversion Date.
Section 4.20 Compliance with Laws.
The Issuer shall comply, and shall cause each of its Subsidiaries to comply, with all applicable statutes, rules, regulations, orders and restrictions of the United States, all states and municipalities thereof, and of any governmental department, commission, board, regulatory authority, bureau, agency and instrumentality of the foregoing, in respect of the conduct of their respective businesses and the ownership of their respective properties, except, in any such case, to the extent the failure to so comply would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of the Issuer and its Subsidiaries taken as a whole.
Section 4.21 Waiver of Stay, Extension or Usury Laws.
The Issuer and each Guarantor covenants (to the extent permitted by applicable law) 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 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 permitted by applicable law) the Issuer and each Guarantor hereby expressly waives all benefit or advantage of any such law, and covenants (to the extent permitted by applicable law) that it shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
(a) The Issuer may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Issuer is the surviving entity); 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:
(i)either: (A) the Issuer is the surviving entity; 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 has been made is a corporation or limited liability company organized or existing under the laws of any member state of the European Union, the United Kingdom (including any constituent country thereof), the United States, any state of the United States or the District of Columbia (the Issuer or such Persons, as applicable, including the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, as the case may be, being herein called the “Successor Company”); provided that at any time the Successor Company is the issuer of the Notes and is a limited liability company, there shall be a co-issuer of the Notes that is a corporation that satisfies the requirements of this Section 5.01(a);
(ii)the Successor Company (if other than the Issuer) assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to a supplemental indenture;
(iii)immediately after such transaction, no Default or Event of Default exists; and
(iv)the Issuer delivers an Officers’ Certificate and Opinion of Counsel stating that such transaction complies with this Indenture and, if applicable, all conditions
precedent in this Indenture to the execution of the supplemental indenture have been satisfied.
Except as permitted under Article 10, no Guarantor may consolidate or merge with or into another Person unless (i) either (x) such Guarantor is the surviving entity or (y) the surviving entity (if other than such Guarantor) assumes all the obligations of such Guarantor under its Note Guarantee and this Indenture pursuant to a supplemental indenture in substantially the form attached hereto as Exhibit E, and (ii) immediately after such transaction, no Default or Event of Default exists.
(b) For purposes of this Article 5, the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Issuer, which properties and assets, if held by the Issuer instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Issuer on a consolidated basis, shall be deemed to be the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of the Issuer.
(c) For the avoidance of doubt, it is agreed that, for all purposes under this Indenture, a sale, transfer or disposition of the properties or assets of the Issuer and its Subsidiaries that, in the aggregate accounted for no more than two-thirds of the Issuer’s aggregate EBITDA, during the four most recent consecutive fiscal quarters prior to the date of such sale, transfer or disposition for which financial statements are available (as specified in an Officers’ Certificate delivered to the Trustee), shall be deemed not to be a sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of the Issuer.
(d) Upon the execution and delivery of the supplemental indenture referred to in Section 5.01(a)(ii) or the last sentence of Section 5.01(a), as applicable, the predecessor company shall be released from its obligations under this Indenture and the Successor Company (in the case of Section 5.01(a)(ii)) or the surviving entity (in the case of the last sentence of Section 5.01(a)), as applicable, shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer or the relevant Guarantor, as applicable, under this Indenture and the Notes or the relevant Note Guarantee, but, in the case of a lease of all or substantially all its assets to a Successor Company, the predecessor shall not be so released.
(e) Notwithstanding the foregoing, clause (iii) of Section 5.01(a) shall not apply to (A) a sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Issuer and its Subsidiaries, (B) any Subsidiary consolidating with, merging into or selling, assigning, transferring, conveying, leasing or otherwise disposing of all or part of its properties and assets to the Issuer or to another Subsidiary of the Issuer (provided that, in the event that such Subsidiary is a Guarantor, it may consolidate with, merge into or sell, assign, transfer, convey, lease or otherwise dispose of all or part of its properties and assets solely to the Issuer or another Guarantor) or (C) the Issuer merging with an Affiliate solely for the purpose and with the sole effect of reincorporating the Issuer in another jurisdiction.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
(a)Each of the following is an “Event of Default”:
(i) the Issuer defaults in payment when due and payable, upon redemption, acceleration or otherwise, of principal of, or premium, if any, on the Notes;
(ii) the Issuer defaults in the payment when due of interest on or with respect to the Notes and such default continues for a period of 30 days;
(iii) the Issuer defaults in the performance of, or breaches any covenant, warranty or other agreement contained in, this Indenture (other than a default in the performance or breach of a covenant, warranty or agreement which is specifically dealt with in clauses (i) or (ii) above) and such default or breach continues for a period of 60 days after the notice specified below;
(iv) a default under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any Indebtedness for money borrowed by the Issuer or any Subsidiary or the payment of which is Guaranteed by the Issuer or any Subsidiary of the Issuer (other than Indebtedness owed to the Issuer or a Subsidiary of the Issuer), whether such Indebtedness or Guarantee now exists or is created after the Issue Date, if (A) such default either (1) results from the failure to pay any such Indebtedness at its stated final maturity (after giving effect to any applicable grace periods) or (2) relates to an obligation other than the obligation to pay principal of any such Indebtedness at its stated final maturity and results in the holder or holders of such Indebtedness causing such Indebtedness to become due prior to its stated maturity and (B) the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness in default for failure to pay principal at stated final maturity (after giving effect to any applicable grace periods), or the maturity of which has been so accelerated, aggregate in excess of $50,000,000 (or its foreign currency equivalent) at any one time outstanding;
(v) the Issuer or any Significant Subsidiary of the Issuer pursuant to or within the meaning of any Bankruptcy Law:
(A)commences a voluntary case;
(B)consents to the entry of an order for relief against it in an involuntary case;
(C)consents to the appointment of a custodian of it or for all or substantially all of its property;
(D)makes a general assignment for the benefit of its creditors;
(E)takes any comparable action under any foreign laws relating to insolvency;
(F)generally is not able to pay its debts as they become due; or
(G)takes any corporate action to authorize or effect any of the foregoing;
(vi) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A)is for relief against the Issuer or any Significant Subsidiary of the Issuer in an involuntary case;
(B)appoints a custodian of the Issuer or any Significant Subsidiary of the Issuer or for all or substantially all of the property or assets of the Issuer or any Significant Subsidiary of the Issuer; or
(C)orders the liquidation of the Issuer or any Significant Subsidiary of the Issuer,
and the order or decree remains unstayed and in effect for 60 days;
(vii) the failure by the Issuer or any Significant Subsidiary of the Issuer to pay final judgments aggregating in excess of $50,000,000, which final judgments remain unpaid, undischarged and unstayed for a period of more than 60 days after the applicable judgment becomes final, and, with respect to any such judgments covered by insurance, an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly stayed; or
(viii) the Note Guarantee of a Significant Subsidiary of the Issuer or any group of Subsidiaries of the Issuer that, taken together as of the date of the most recent audited financial statements of the Issuer, would constitute a Significant Subsidiary of the Issuer ceases to be in full force and effect (except as contemplated by the terms hereof) or any Guarantor denies or disaffirms its obligations under this Indenture or any Note Guarantee, other than by reason of the release of such Note Guarantee in accordance with the terms of this Indenture.
(b)If a Default for a failure to report or failure to deliver a required certificate in connection with another default (the “Initial Default”) occurs, then at the time such Initial Default is cured, such Default for a failure to report or failure to deliver a required certificate in connection with another default that resulted solely because of that Initial Default will also be cured without any further action.
(c)Any Default or Event of Default for the failure to comply with the time periods prescribed in Section 4.03 or otherwise to deliver any notice or certificate pursuant to any other provision of this Indenture shall be deemed to be cured upon the delivery of any such
report required by Section 4.03 or such notice or certificate, as applicable, even though such delivery is not within the prescribed period specified in this Indenture.
Section 6.02 Acceleration.
(a)If an Event of Default specified in clause (v) or (vi) of Section 6.01(a) occurs and is continuing with respect to the Issuer, then all unpaid principal of, and premium, if any, and accrued and unpaid interest on all of the outstanding Notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
(b)If any Event of Default (other than an Event of Default specified in clauses (v) or (vi) of Section 6.01(a) with respect to the Issuer) shall occur and be continuing, the Trustee or the Holders of at least 25% in principal amount of outstanding Notes under this Indenture may declare the principal of, premium, if any, and accrued interest on such Notes to be immediately due and payable by notice in writing to the Issuer and the Trustee (if given by the Holders) specifying the respective Event of Default and that it is a “notice of acceleration,” and the same shall become immediately due and payable.
(c)Any notice of Default, notice of acceleration or instruction to the Trustee to provide a notice of Default, notice of acceleration or take any other action (a “Noteholder Direction”) provided by any one or more Holders of the Notes (other than a Regulated Bank) (each a “Directing Holder”) must be accompanied by a written representation from each such Holder to the Issuer and the Trustee that such Holder is not (or, in the case such Holder is DTC or its nominee, that such Holder is being instructed solely by beneficial owners that have represented to such Holder that they are not) Net Short (a “Position Representation”), which representation, in the case of a Noteholder Direction relating to a notice of Default shall be deemed repeated at all times until the resulting Event of Default is cured or otherwise ceases to exist or the Notes are accelerated. In addition, each Directing Holder must, at the time of providing a Noteholder Direction, covenant to provide the Issuer with such other information as the Issuer may reasonably request from time to time in order to verify the accuracy of such Holder’s Position Representation within five Business Days of request therefor (a “Verification Covenant”). In any case in which the Holder of the Notes is DTC or its nominee, any Position Representation or Verification Covenant required hereunder shall be provided by the beneficial owner of the Notes in lieu of DTC or its nominee.
If, following the delivery of a Noteholder Direction, but prior to the acceleration of the Notes, the Issuer determines in good faith that there is a reasonable basis to believe that a Directing Holder was, at any relevant time, in breach of its Position Representation and provides to the Trustee an Officers’ Certificate stating that the Issuer has initiated litigation in a court of competent jurisdiction seeking a determination that such Directing Holder was, at such time, in breach of its Position Representation, and seeking to invalidate any Event of Default that resulted from the applicable Noteholder Direction, the cure period with respect to such Default shall be automatically stayed pending a final and non-appealable determination of a court of competent jurisdiction on such matter. If, following the delivery of a Noteholder Direction, but prior to the acceleration of the Notes, the Issuer provides to the Trustee an Officers’ Certificate stating that a Directing Holder failed to satisfy its Verification Covenant, the cure period with respect to such
Default shall be automatically stayed and the cure period with respect to any Event of Default that resulted from the applicable Noteholder Direction shall be automatically reinstituted and any remedy stayed pending satisfaction of such Verification Covenant. Any breach of the Position Representation (as determined by a final judgment of a court of competent jurisdiction) shall result in such Holder’s participation in such Noteholder Direction being disregarded; and, if, without the participation of such Holder, the percentage of Notes held by the remaining Holders of the Notes that provided such Noteholder Direction would have been insufficient to validly provide such Noteholder Direction, such Noteholder Direction shall be void ab initio, with the effect that such Event of Default shall be deemed never to have occurred, acceleration shall be voided and the Trustee shall be deemed not to have received such Noteholder Direction or any notice of such Default or Event of Default; provided, however, that this shall not invalidate any indemnity or security provided by the Directing Holders to the trustee, which obligations shall continue to survive.
Notwithstanding anything in the preceding two paragraphs to the contrary, any Noteholder Direction delivered to the Trustee during the pendency of an Event of Default as the result of bankruptcy or similar proceedings shall not require compliance with this Section 6.02(c). In addition, for the avoidance of doubt, this Section 6.02(c) shall not apply to any Holder that is a Regulated Bank.
For the avoidance of doubt, the Trustee shall be entitled to conclusively rely on any Noteholder Direction, Position Representation, Verification Covenant, Officers’ Certificate or other document delivered to it pursuant to this Section 6.02(c), shall have no duty to inquire as to or investigate the accuracy of any Position Representation, enforce compliance with any Verification Covenant, verify any statements in any Officers’ Certificate delivered to it, or otherwise make calculations, investigations or determinations with respect to Regulated Banks, Derivative Instruments, Net Shorts, Long Derivative Instruments, Short Derivative Instruments or otherwise and shall have no liability for ceasing to take any action or staying any remedy. The Trustee shall have no liability to the Issuer, any Holder or any other Person in acting in good faith on a Noteholder Direction or to determine whether any Holder has delivered a Position Representation or that such Position Representation conforms with this Indenture or any other agreement or whether or not any Holder is a Regulated Bank.
By their acquisition of the Notes, each Holder and subsequent purchaser of the Notes consents to the delivery of its Position Representation by the Trustee to the Issuer in accordance with the terms of this Section 6.02(c). By their acquisition of the Notes, each Holder and subsequent purchaser of the Notes waives any and all claims, in law and/or in equity, against the Trustee and agrees not to commence any legal proceeding against the Trustee in respect of, and agrees that the Trustee will not be liable for any action that the Trustee takes in accordance with this Section 6.02(c), or arising out of or in connection with following instructions or taking actions in accordance with a Noteholder Direction.
The Issuer hereby waives any and all claims, in law and/or in equity, against the Trustee, and agrees not to commence any legal proceeding against the Trustee in respect of, and agrees that the Trustee will not be liable for any action that the Trustee takes in accordance with this Section 6.02(c), or arising out of or in connection with following instructions or taking actions in accordance with a Noteholder Direction.
For the avoidance of doubt, the Trustee will treat all Holders equally with respect to their rights under this Section 6.02(c). In connection with the requisite percentages required under this Section 6.02(c), the Trustee shall also treat all outstanding Notes equally irrespective of any Position Representation in determining whether the requisite percentage has been obtained with respect to the initial delivery of the Noteholder Direction.
(d)At any time after a declaration of acceleration of the unpaid principal, premium (if any) and accrued and unpaid interest has occurred with respect to the Notes as described in Section 6.02(a) or (b), the Holders of a majority in aggregate principal amount of the then outstanding Notes may rescind and cancel such declaration and its consequences by written notice to the Issuer and the Trustee:
(i) if the rescission would not conflict with any judgment or decree;
(ii) if all existing Events of Default have been cured or waived except nonpayment of principal, premium, if any, or accrued interest that has become due solely because of the acceleration;
(iii) to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid;
(iv) if the Issuer has paid the Trustee its reasonable compensation and reimbursed the Trustee for its expenses (including the fees and expenses of its counsel), disbursements and advances; and
(v) in the event of the cure or waiver of an Event of Default under this Indenture of the type described in clause (v) and (vi) of Section 6.01(a), the Trustee shall have received an Officers’ Certificate that such Event of Default has been cured or waived.
No such rescission shall affect any subsequent Default or impair any right consequent thereto.
Section 6.03 Other Remedies.
(a) If a 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 interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon a Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Default. No remedy is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by law.
(c) In the event of any Event of Default specified in clause (iv) of Section 6.01(a), such Event of Default and all consequences thereof (excluding, however, any resulting payment default, other than as a result of the acceleration of the Notes) shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 20 days after such Event of Default arose: (x) the Indebtedness or Guarantee that is the basis for such Event of Default has been discharged or (y) the holders of such Indebtedness or Guarantee have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default or (z) the default that is the basis for such Event of Default is no longer continuing, it being understood that in no event shall an acceleration of the principal amount of, premium, if any, and accrued interest on the Notes, as described above, be automatically annulled, waived or rescinded upon the happening of any such events.
(d) Holders may not enforce this Indenture or the Notes, except as provided in this Indenture. The Trustee is under no obligation to exercise any of its rights or powers under this Indenture at the request, order or direction of any of the Holders, unless such Holders have offered to the Trustee indemnity reasonably satisfactory to it.
Section 6.04 Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of Notes at the time then outstanding may on behalf of the Holders of all the Notes waive any Default with respect to such Notes and its consequences by providing written notice thereof to the Issuer and the Trustee, except a Default in the payment of the principal of, premium, if any, or interest on the Notes or a covenant or provision of this Indenture which cannot be modified or amended without the consent of the Holder of each outstanding Note affected. In the case of any such waiver, the Issuer, the Trustee and the Holders shall be restored to their former positions and rights under this Indenture, respectively; provided that no such waiver shall extend to any subsequent or other Default or impair any right consequent thereto.
Section 6.05 Control by Majority.
Subject to the other provisions of this Indenture and applicable law, the Holders of not less than a majority in aggregate principal amount of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it. The Trustee may refuse to follow any direction that conflicts with any law or this Indenture, that the Trustee determines may be unduly prejudicial to the rights of another Holder, or that may involve the Trustee in personal liability; provided that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. In the event the Trustee takes any action or follows any direction pursuant to this Indenture, the Trustee shall be entitled to indemnification satisfactory to the Trustee against any loss or expense caused by taking such action or following such direction.
Section 6.06 Limitation on Suits.
A Holder may not pursue any remedy with respect to this Indenture or the Notes unless:
(i) the Holder gives to the Trustee written notice of a continuing Event of Default;
(ii) the Holder or Holders of at least 25% in principal amount of the outstanding Notes make a written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer and provide to the Trustee indemnity reasonably satisfactory to the Trustee against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 45 days after receipt of the request and the offer and the provision of indemnity; and
(v) during such 45-day period the Holder or Holders of a majority in aggregate principal amount of the outstanding Notes do not give the Trustee a direction in accordance with Section 6.05 which, in the opinion of the Trustee, is inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over such other Holder.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal of and interest 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 the Holder.
Section 6.08 Collection Suit by Trustee.
If a Default in payment of principal or interest specified in clauses (i) or (ii) of Section 6.01(a) 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 and fees remaining unpaid, 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.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relating to the Issuer, its creditors or 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 each of the Trustee and the Agents any amount due to it for the compensation, expenses, disbursements and advances of the Trustee, the Agents and their respective agents and counsel, and any other amounts due the Trustee and the Agents under Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. The Trustee shall be entitled to participate as a member of any official committee of creditors in the matters as it deems necessary or advisable.
Section 6.10 Priorities.
Subject to the provisions of Article 10, if the Trustee collects any money or property pursuant to this Article 6, it shall pay out the money or property in the following order:
First: to the Trustee and the Agents for amounts due under Section 7.07;
Second: to Holders for interest accrued on the Notes, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for interest;
Third: to Holders for principal amounts due and unpaid on the Notes, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal; and
Fourth: to the Issuer or, if applicable, the Guarantors, as their respective interests may appear.
The Trustee, upon prior notice to the Issuer, may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10% in principal amount of the outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.
(a)The Trustee, prior to the occurrence of an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge and after the curing of all such Events of Defaults which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. If an Event of Default of which a Responsible Officer of the Trustee shall have actual knowledge has occurred and is continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b)Except during the continuance of an Event of Default:
(i)the duties of the Trustee will be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii)in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, with respect to certificates or opinions specifically required by any provision hereof to be furnished to it, the Trustee will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture; provided, however, that the Trustee shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished to it hereunder.
(c)The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i)this paragraph (c) does not limit the effect of paragraph (b) of this Section 7.01;
(ii)the Trustee will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(iii)the Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.
(d)No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability for the performance of any of its duties hereunder or the exercise
of any of its rights or powers. The Trustee will be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, unless such Holder has offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.
(e)The Trustee will not be liable for interest on, and will not be obligated to invest, any money received by it except as the Trustee may agree in writing with the Issuer. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Section 7.02 Rights of Trustee.
(a)The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b)Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c)The Trustee may execute any of the trusts or powers hereunder and perform any duties hereunder either directly or through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent appointed with due care.
(d)The Trustee will not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e)Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer will be sufficient if signed by an Officer of the Issuer.
(f)The Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity or security satisfactory to it against the losses, liabilities and expenses that might be incurred by it in compliance with such request or direction.
(g)In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(h)The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a Default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.
(i)The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Agents, and the Trustee, in each of its capacities hereunder, each Agent and each agent, custodian, and other Person employed to act hereunder.
(j)The Trustee may request that the Issuer and each Guarantor deliver an Officers’ Certificate setting forth the names of individuals and titles of Officers authorized at such time to take specified actions pursuant to this Indenture.
(k)The right of the Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act.
(l)The Trustee shall have no obligation to (i) independently determine or verify the rating of any Notes or if a commencement of any Suspension Period or the Reversion Date has occurred, (ii) make any determination regarding the impact of actions taken during the Suspension Period on the Issuer’s and its Subsidiaries’ future compliance with their covenants or (iii) notify the Holders of the commencement of the Suspension Period or the Reversion Date.
(m)Notwithstanding any provision herein to the contrary, in no event shall the Trustee 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, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like which restrict or prohibit the providing of the services contemplated by this Indenture, inability to obtain material, equipment, or communications or computer facilities, or the failure of equipment or interruption of communications or computer facilities, and other causes beyond its control whether or not of the same class or kind as specifically named above.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest (within the meaning of the TIA) it must eliminate such conflict within 90 days, apply to the Commission for permission to continue as trustee (if this Indenture has been qualified under the TIA) or resign. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee’s Disclaimer.
The Trustee will not be responsible for and makes no representation as to the validity or adequacy of this Indenture, any related offering material 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 of this Indenture, it will not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it will not be
responsible for any statement or recital herein, any statement in the Notes, the Offering Memorandum or any other document in connection with the sale of the Notes or pursuant to this Indenture or the legality or validity of the Notes or this Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is known to the Trustee in accordance with Section 7.02(h), the Trustee will provide to Holders a notice of the Default or Event of Default within 90 days after the Trustee has notice thereof. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest on, any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders.
Section 7.06 Instructions Using Electronic Means.
The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”), given by the Issuer and/or the Guarantors, pursuant to this Indenture and any related financing documents and delivered using Electronic Means; provided, however, that as a condition to so accepting and acting upon such Instructions, the Trustee may require that the Issuer and/or the Guarantors, as applicable, provide to the Trustee an incumbency certificate listing officers or other representatives with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Issuer and/or the Guarantors, as applicable, whenever a person is to be added or deleted from the listing. If the Issuer and/or the Guarantors, as applicable, elect to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Issuer and the Guarantors understand and agree that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Issuer and the Guarantors shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Issuer, the Guarantors and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Issuer and/or the Guarantors, as applicable. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding that such directions conflict or are inconsistent with a subsequent written instruction. Each of the Issuer and the Guarantors agrees: (i) to assume all risks arising out of the use by them of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Issuer and/or the Guarantors, as applicable; and (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to
it a commercially reasonable degree of protection in light of its particular needs and circumstances.
Section 7.07 Compensation and Indemnity.
(a)The Issuer will pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services hereunder as agreed between the Issuer and the Trustee. The Trustee’s compensation will not be limited by any law on compensation of a trustee of an express trust. The Issuer will reimburse the Trustee promptly upon request for all reasonable and documented disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses will include the reasonable and documented compensation, disbursements and expenses of the Trustee’s agents and counsel.
(b)The Issuer and each Guarantor, jointly and severally, will indemnify the Trustee and any director, officer, employee or agent of the Trustee and hold each of them harmless for, from and against any and all losses, liabilities, claims, damages or expenses incurred by it (i) arising out of or in connection with the acceptance or administration of its duties under this Indenture, including, without limitation, the reasonable and documented costs and expenses (including the costs and expenses of the Trustee’s agents and counsel) of enforcing this Indenture against the Issuer and the Guarantors (including this Section 7.07) and defending itself against any claim (whether asserted by the Issuer, the Guarantors, any Holder or any other Person) or (ii) arising out of or in connection with the exercise or performance of any of its powers or duties hereunder and/or the exercise of its rights, except to the extent any such loss, liability or expense is attributable to its own negligence, bad faith or willful misconduct. The Trustee will notify the Issuer promptly of any claim of which a Responsible Officer has received written notice for which it may seek indemnity. Failure by the Trustee to so notify the Issuer will not relieve the Issuer or any of the Guarantors of their obligations hereunder. The Issuer or such Guarantor, as the case may be, will defend the claim and the Trustee will cooperate in the defense. The Trustee may have separate counsel and the Issuer and the Guarantors, as applicable, will pay the reasonable and documented fees and expenses of such counsel; provided, however, that the Issuer and any Guarantor shall not be required to pay such fees and expenses if it assumes such indemnified party’s defense and, in such indemnified party’s reasonable judgment, there is no conflict of interest or potential conflict of interest between the Issuer and the Guarantors, as applicable, and such party in connection with such defense. Neither the Issuer nor any Guarantor need pay for any settlement made without its consent, which consent will not be unreasonably withheld.
(c)The obligations of the Issuer and the Guarantors under this Section 7.07 will survive payment of the Notes, resignation or removal of the Trustee or any Agent, the satisfaction and discharge of this Indenture or other termination of this Indenture.
(d)To secure the Issuer’s and the Guarantors’ payment obligations in this Section 7.07, the Trustee will have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien will survive the satisfaction and discharge of this Indenture.
(e)When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(a)(v) or (vi) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
Section 7.08 Replacement of Trustee.
(a)A resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.
(b)The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Issuer. The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing. The Issuer may remove the Trustee if:
(i)the Trustee fails to comply with Section 7.10 hereof;
(ii)the Trustee is adjudged bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(iii)a custodian, receiver or public officer takes charge of the Trustee or its property; or
(iv)the Trustee becomes incapable of acting.
(c)If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuer will promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.
(d)If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Issuer, or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(e)If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10 hereof, such Holder may petition at the expense of the Issuer any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(f)A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee will mail a notice of its succession to Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been
paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuer’s and the Guarantors’ obligations under Section 7.07 hereof will continue for the benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business (including any corporate trust business contemplated by this Indenture) to, another corporation, the successor corporation without any further act will be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation 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 trust powers, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition.
Section 7.11 Preferential Collection of Claims Against the Issuer.
The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuer may at any time, at the option of its Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes and Note Guarantees upon compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Issuer and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been released from their obligations with respect to all outstanding Notes (including the Note Guarantees) on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Issuer and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Guarantees), which will thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in clauses (i) and (ii) below, and to have satisfied all their other obligations under such Notes, the Note Guarantees
and this Indenture (and the Trustee, on demand of and at the expense of the Issuer, shall execute instruments acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder:
(i)the rights of Holders of outstanding Notes issued hereunder to receive payments in respect of the principal of, or interest or premium, if any, on such Notes when such payments are due from the trust referred to below;
(ii)the Issuer’s obligations with respect to the Notes issued hereunder concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment;
(iii)the rights, powers, trusts, duties and immunities of the Trustee hereunder and the obligations of the Issuer and the Guarantors in connection therewith; and
(iv)this Article 8.
Subject to compliance with this Article 8, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Issuer and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of their obligations under the covenants contained in Sections 4.03, 4.05, 4.08, 4.09, 4.12, 4.13, 4.15, 4.16, 4.17 and 5.01(a)(iii) hereof with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes will 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 will continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes will not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and the Note Guarantees, the Issuer and the Guarantors may omit to comply with and will have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply will not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes and Note Guarantees, will be unaffected thereby. In addition, upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, and clauses (iii), (iv), (v) (with respect to a Significant Subsidiary of the Issuer), (vi) (with respect to a Significant Subsidiary of the Issuer), (vii) and (viii) of Section 6.01(a) will not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
(a)In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 hereof:
(i)the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders cash in U.S. dollars, non-callable U.S. Government Securities, or a combination of cash in U.S. dollars and non-callable U.S. Government Securities, in amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants delivered to the Trustee, to pay the principal of, and interest and premium, if any, on the outstanding Notes issued hereunder 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;
(ii)in the case of an election under Section 8.02 hereof, the Issuer has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the Issue Date, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel will confirm that, the Holders of the outstanding Notes issued hereunder will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(iii)in the case of an election under Section 8.03 hereof, the Issuer has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes issued hereunder will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(iv)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, or arising in connection with, the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings);
(v)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 Guarantor is a party or by which the Issuer or any Guarantor is bound;
(vi)the Issuer must deliver to the Trustee an Officers’ Certificate stating that the deposit referred to in clause (i) was not made by the Issuer with the intent of preferring the Holders over the other creditors of the Issuer or any Guarantor or with the
intent of defeating, hindering, delaying or defrauding creditors of the Issuer or any Guarantor or others; and
(vii)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 of the Notes have been complied with.
(b)Notwithstanding the foregoing, the Opinion of Counsel required by clauses (a)(ii) and (a)(iii) above with respect to a Legal Defeasance or a Covenant Defeasance, as applicable, need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable on the maturity date 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.
(c)Upon satisfaction of the conditions set forth herein and upon the request of the Issuer, the Trustee shall acknowledge in writing the discharge of those obligations that the Issuer terminates.
Section 8.05 Deposited Money and U.S. Government Securities to Be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money, non-callable U.S. Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
The Issuer will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable U.S. Government Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.
Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to the Issuer from time to time upon the request of the Issuer any money, non-callable U.S. Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a)(ii) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to the Issuer.
Subject to applicable abandoned property law, any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of, premium, if any, or interest on, any Note and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Issuer on its request or (if then held by the Issuer) will be discharged from such trust; and the Holder of such Note will thereafter be permitted to look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, will 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 The New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Issuer.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable U.S. Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuer’s and the Guarantors’ obligations under this Indenture and the Notes and the Note Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Issuer makes any payment of principal of, premium, if any, or interest on, any Note following the reinstatement of its obligations, the Issuer will 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 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Without the consent of any Holder, the Issuer, the Guarantors (except that the Guarantors need not be a party to a supplemental indenture that solely addresses a matter under clause (i), (ii), (vi), (vii) or (ix) below)) and the Trustee may amend or supplement this Indenture, the Notes or the Note Guarantees:
(i)to cure any ambiguity, mistake, defect or inconsistency;
(ii)to provide for uncertificated Notes in addition to or in place of certificated Notes;
(iii)to provide for the assumption by a Successor Company or a successor company of a Guarantor, as applicable, of the Issuer’s or such Guarantor’s obligations under this Indenture;
(iv)to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights hereunder of any Holder;
(v)to secure the Notes;
(vi)to add a Note Guarantee;
(vii)to conform the text of this Indenture or the Notes to any provision of the “Description of Notes” included in the Offering Memorandum relating to the Notes;
(viii)to provide for the issuance of Additional Notes in accordance with the provisions set forth in this Indenture; or
(ix)to release a Guarantor from its Note Guarantee; provided that such release is in accordance with the applicable provisions of this Indenture;
provided, that the Issuer has delivered to the Trustee an Opinion of Counsel and an Officers’ Certificate, each stating that such amendment or supplement complies with the provisions of this Section 9.01.
Section 9.02 With Consent of Holders of Notes.
(a)Subject to Section 6.07 and Section 9.02(b), the Issuer, the Guarantors and the Trustee, together, with the written consent of the Holder or Holders of a majority in aggregate 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), may amend or supplement this Indenture or the Notes without notice to any other Holders. Subject to Section 6.04, the Holder or Holders of a majority in aggregate principal amount of the Notes then outstanding may waive any existing default or compliance with any provision of this Indenture or the Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes) without notice to any other Holders (except a default in respect of the payment of principal of, premium, if any, or interest on the Notes or a covenant or provision of this Indenture which cannot be modified or amended without the consent of the Holder of each outstanding Note affected).
(b)Notwithstanding Section 9.02(a), without the consent of each Holder of an outstanding Note affected, an amendment, supplement or waiver, including a waiver pursuant to Section 6.04, may not:
(i)reduce the principal amount of Notes issued hereunder whose Holders must consent to an amendment, supplement or waiver;
(ii)reduce the principal of or change the fixed maturity of any Note issued hereunder or alter the provisions with respect to the redemption of the outstanding Notes
issued hereunder (other than provisions relating to the covenants described above under Section 4.15, except as set forth in clause (x) below);
(iii)reduce the rate of or change the time for payment of interest on any Note issued hereunder;
(iv)waive a Default or Event of Default in the payment of principal of, or interest or premium, if any, on the outstanding Notes issued hereunder (except a rescission of acceleration of the Notes issued hereunder by the Holders of a majority in aggregate principal amount of the then outstanding Notes issued hereunder with respect to a nonpayment default and a waiver of the payment default that resulted from such acceleration);
(v)make any Note payable in money other than that stated in the Notes;
(vi)make any change in the provisions of this Indenture relating to waivers of past Defaults or impair the right of any Holder to institute suit for the enforcement of any payment on or with respect to the Notes;
(vii)waive a redemption payment with respect to any Note issued hereunder (other than a payment required by Section 4.15, except as set forth in clause (x) below);
(viii)make any change in the ranking or priority of any Note issued hereunder that would adversely affect the Holders;
(ix)modify the Note Guarantees in any manner adverse to the Holders;
(x)amend, change or modify in any material respect the obligation of the Issuer to make and consummate a Change of Control Offer in respect of a Change of Control that has occurred; or
(xi)make any change in the preceding amendment and waiver provisions.
(c)It shall not be necessary for the consent of the Holders under this Section to approve the particular form of any proposed amendment, supplement or waiver but it shall be sufficient if such consent approves the substance thereof.
(d)After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuer shall give to the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuer to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.
Section 9.03 [Intentionally Omitted].
Section 9.04 Revocation and Effect of Consents.
(a)Until an amendment, waiver or supplement becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder 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 or subsequent Holder may revoke the consent as to his Note or portion of his Note by notice to the Trustee or the Issuer received before the date on which the Trustee receives an Officers’ Certificate certifying that the Holders of the requisite principal amount of Notes have consented (and not theretofore revoked such consent) to the amendment, supplement or waiver.
(b)The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver which record date shall be at least 30 days prior to the first solicitation of such consent. If a record date is fixed, then notwithstanding the last sentence of the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date. The Issuer shall inform the Trustee in writing of the fixed record date if applicable.
(c)After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless it makes a change described in any of clauses (i) through (xi) of Section 9.02(b), in which case, the amendment, supplement or waiver shall bind only each Holder of a Note who has consented to it and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note; provided that any such waiver shall not impair or affect the right of any Holder to bring suit for the enforcement of any such payment on or after such respective dates without the consent of such Holder.
Section 9.05 Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note, the Issuer may require the Holder of the Note to deliver it to the Trustee. The Issuer shall provide the Trustee with an appropriate notation on the Note about the changed terms and cause the Trustee to return it to the Holder at the Issuer’s expense. Alternatively, if the Issuer or the Trustee so determines, the Issuer in exchange for the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms. Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver authorized pursuant to this Article 9; provided, that the Trustee may, but shall not be obligated to, execute any such amendment, supplement or waiver which affects the Trustee’s own rights, duties or immunities under this Indenture. The Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel and an Officers’ Certificate each stating that the execution
of any amendment, supplement or waiver authorized pursuant to this Article 9 is authorized or permitted by this Indenture and constitutes the legal, valid and binding obligations of the Issuer enforceable in accordance with its terms. Such Opinion of Counsel and Officers’ Certificate shall be at the expense of the Issuer.
ARTICLE 10
GUARANTEES
Section 10.01 Guarantee.
(a)Subject to this Article 10, each of the Guarantors hereby, jointly and severally, and fully and unconditionally, Guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of, this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (i) the principal of, premium, if any, and accrued and unpaid interest and defaulted interest, if any, on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium, if any, and interest and defaulted interest, if any, on the Notes (pursuant to Section 2.12), if lawful (subject in all cases to any applicable grace period provided herein), and all other obligations of the Issuer to the Holders or the Trustee hereunder or thereunder will be promptly paid in full, 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 any of such other obligations, the same will be promptly paid in full when due in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Failing payment when due of any amount so Guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a Guarantee of payment and not a Guarantee of collection.
(b)Each Guarantor hereby agrees that, to the maximum extent permitted under applicable law, its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes or the Trustee with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Subject to Section 6.06, each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that its Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.
(c)If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to any of the Issuer or the Guarantors, any amount paid by any of them to the Trustee or such Holder, the Note Guarantees, to the extent theretofore discharged, shall be reinstated with full force and effect.
(d)Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders or the Trustee in respect of any obligations Guaranteed hereby until payment in full of all obligations Guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Guaranteed hereby may be accelerated as provided in Article 6 for the purposes of its Note 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 declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of its Note Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders or the Trustee under any Note Guarantee.
Section 10.02 Limitation on Guarantor Liability.
(a)Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to its Note Guarantee or (ii) an unlawful distribution under any applicable state or foreign law prohibiting distributions by an insolvent entity to the extent applicable to its Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance or such an unlawful distribution.
(b)Notwithstanding anything herein to the contrary, the Note Guarantee granted by any Guarantor which is incorporated in or existing under the laws of the Grand Duchy of Luxembourg (each, a “Luxembourg Guarantor”) under this Section 10.02 that provides for the Guarantee of the obligations of (i) the Issuer and/or (ii) any Guarantor which is not a direct or indirect subsidiary of such Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding the higher of:
(i)90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in annex I to the Grand Ducal Regulation dated 18 December 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings, as amended (“Annex I”) ) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date on which a demand is made under such Luxembourg Guarantor’s Note Guarantee; and
(ii)90% of such Luxembourg Guarantor’s capitaux propres and subordinated debt (all as referred to in Annex I) as reflected in its last annual accounts (approved by a shareholders’ meeting) available on the date of this Indenture.
The above limitation shall not apply to any proceeds of the offering of the Notes on-lent, or otherwise made available, to such Luxembourg Guarantor or any of its direct or indirect subsidiaries.
Section 10.03 Execution and Delivery of Guarantee.
(a)To evidence its Note Guarantee set forth in Section 10.01, each Guarantor hereby agrees that a notation of such Note Guarantee (a “Notation of Guarantee”) substantially in the form attached hereto as Exhibit D shall be endorsed by an Officer of such Guarantor by manual, electronic or facsimile signature on each Note authenticated and delivered by the Trustee and that this Indenture shall be executed on behalf of such Guarantor by one of its Officers.
(b)Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 shall remain in full force and effect notwithstanding any failure to endorse on each Note a Notation of Guarantee.
(c)If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed, the Note Guarantee shall be valid nevertheless.
(d)The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.
(e)If required by Section 4.17, the Issuer shall cause such Subsidiaries to execute supplemental indentures to this Indenture and Notations of Guarantee in accordance with Section 4.17 and this Article 10, to the extent applicable.
Section 10.04 Guarantors May Consolidate, Etc., on Certain Terms.
Notwithstanding anything to the contrary in this Indenture, each Guarantor may consolidate with or merge into or sell its assets to the Issuer or another Guarantor without limitation, or with, into or to any other Persons upon the terms and conditions set forth in Article 5.
Section 10.05 Releases.
The Note Guarantee of a Guarantor will be automatically released in the event that:
(a)there is a sale, disposition or other transfer (including through merger or consolidation) of (i) all of the Capital Stock (or any sale, disposition or other transfer of Capital Stock (including through merger or consolidation) following which the applicable Guarantor is
no longer a Subsidiary of the Issuer), or (ii) all or substantially all the assets, of the applicable Guarantor;
(b)in the case of any Subsidiary of the Issuer, which after the Issue Date is required to provide a Note Guarantee pursuant to Section 4.17, the release or discharge of the Guarantee by such entity of all Indebtedness of the Issuer or any Subsidiary of the Issuer or the repayment of all the Indebtedness or Disqualified Stock, in each case, which resulted in an obligation to provide a Note Guarantee;
(c)if the Issuer exercises its Legal Defeasance option or its Covenant Defeasance option as described under Article 8 or if its obligations under this Indenture are discharged in accordance with the terms of this Indenture as described under Article 11; or
(d)such Guarantor is also a guarantor or borrower under the Credit Agreement as in effect on the Issue Date and, at the time of release of its Note Guarantee, (x) has been released from its Guarantee of, and all pledges and security, if any, granted by it in connection with the Credit Agreement, (y) is not an obligor under any Indebtedness (other than Indebtedness permitted to be incurred pursuant to clause (3), (5), (6), (7), (8), (9), (10) and (11) of Section 4.09(b) and (z) does not Guarantee any Indebtedness in excess of $50,000,000 (or its foreign currency equivalent) at such time outstanding of the Issuer or any of the other Guarantors.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge.
(a)This Indenture will be discharged and will cease to be of further effect as to all Notes issued hereunder, when:
(i)Either:
(A)all the 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 or segregated and held in trust by the Issuer and thereafter repaid to the Issuer, have been delivered to the Trustee for cancellation; or
(B)all the Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the giving of a notice of redemption or otherwise or will become due and payable by reason of the giving of a notice of redemption or otherwise within one year and the Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable U.S. Government Securities, or a combination thereof, in amounts as will be sufficient, without consideration of any reinvestment of interest, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent
public accountants delivered to the Trustee, to pay and discharge the entire Indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption;
(ii)in the case of subclause (i)(B) above, no Default or Event of Default has occurred and is continuing under this Indenture on the date of the deposit or will occur as a result of the deposit (other than a Default or Event of Default resulting from or arising in connection with borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings) and the deposit will not result in a breach or violation of, or constitute a default under, any other material instrument to which the Issuer is a party or by which the Issuer is bound;
(iii)the Issuer has paid or caused to be paid all sums payable by it under this Indenture; and
(iv)the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes issued hereunder at maturity or the redemption date, as the case may be.
(b)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.
(c)Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to subclause (B) of clause (i) of Section 11.01(a), the provisions of Sections 11.02 and 8.06 hereof will survive such satisfaction and discharge. In addition, nothing in this Section 11.01 will be deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the satisfaction and discharge of this Indenture
Section 11.02 Application of Trust Money.
Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or U.S. Government Securities in accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s and any Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof; provided that if the Issuer has made any payment of principal of, premium, if any, or interest on, any Notes because of the reinstatement of its obligations, the
Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Securities held by the Trustee or Paying Agent.
ARTICLE 12
MISCELLANEOUS
Section 12.01 [Intentionally Omitted].
Section 12.02 Notices.
Any notice, demand, instruction, request, direction or communication by the Issuer, any Guarantor or the Trustee to the others is duly given if in English and in writing and delivered in Person or by first class mail (registered or certified, return receipt requested), facsimile transmission or other electronic transmission or overnight air courier guaranteeing next day delivery, to the others’ address:
If to the Issuer and/or any Guarantor:
Sensata Technologies B.V.
c/o Sensata Technologies, Inc.
529 Pleasant Street
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Financial Officer
With a copy to:
Foley Hoag LLP
Seaport West
155 Seaport Boulevard
Boston, MA US 02210-2600
Attention: Malcolm G. Henderson, Esq.
If to the Trustee:
The Bank of New York Mellon
Corporate Trust Division
240 Greenwich Street, 7th Floor East
New York, NY 10286
Facsimile No.: (212) 815-5366
Attention: Corporate Trust Division
The Issuer, any Guarantor or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.
All notices and communications to the Trustee or any Agent shall be deemed to have been duly given upon actual receipt thereof by such party. All other notices and communications (other than those sent to Holders) will be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile or other electronic transmission; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder of a Global Note will be delivered to the Depositary in accordance with its customary procedures. Any notice or communication to a Holder of a Definitive Note will be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Failure to give a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders.
Except with respect to the Trustee and the Agents, if a notice or communication is given in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
In respect of this Indenture, the Trustee shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission; and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information. Each other party agrees to assume all risks arising out of the use of electronic methods, including any non-secure method, such as, but without limitation, by facsimile or electronic mail, to submit instructions, directions, reports, notices or other communications or information to the Trustee, including without limitation, the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties.
If the Issuer gives a notice or communication to Holders, it will give a copy to the Trustee and each Agent at the same time.
The Trustee shall have the right to accept and act upon Instructions given pursuant to this Indenture and any related financing documents and delivered using Electronic Means as provided in Section 7.06.
Section 12.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or the Notes. The Issuer, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
Section 12.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer to the Trustee to take or refrain from taking any action under this Indenture, the Issuer shall furnish to the Trustee:
(i)an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05 hereof) 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; provided, that such Officers’ Certificate shall not be required to be furnished to the Trustee in connection with the authentication and delivery of the Notes on the Issue Date; and
(ii)an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied; provided, that such Opinion of Counsel shall not be required to be furnished to the Trustee in connection with the authentication and delivery of the Notes on the Issue Date.
Section 12.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) must comply with the provisions of TIA § 314(e) and must include:
(i)a statement substantially to the effect that the Person making such certificate or opinion has read such covenant or condition;
(ii)a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii)a statement substantially to the effect that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
(iv)a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied; provided, however, that with respect to matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate or certificates of public officials.
Section 12.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders
No director, officer, employee, incorporator or stockholder of the Issuer, the Parent, any other direct or indirect parent company of the Issuer or any Subsidiary of the Issuer, as such, will have any liability for any obligations of the Issuer or any Guarantor under any Notes, this Indenture, the Note Guarantees, 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 such Notes. The waiver may not be effective to waive liabilities under the federal securities laws, and it is the view of the Commission that such waiver is against public policy.
Section 12.08 Governing Law.
THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 12.09 Jurisdiction; Waiver of Jury Trial.
(a)Each of the Issuer and the Guarantors hereby consents to the non-exclusive jurisdiction of any court of the State of New York or any U.S. federal court, in each case, sitting in the Borough of Manhattan, The City of New York, New York, United States, and any appellate court from any thereof in any action or proceeding arising out of or related to the Notes, this Indenture or the Note Guarantees. Each of the Issuer and the Guarantors hereby appoints C T Corporation located at 28 Liberty Street, New York, New York 10005 as its authorized agent upon which service of process may be served in any action or proceeding brought in any court of the State of New York or any U.S. federal court sitting in the Borough of Manhattan, The City of New York in connection with this Indenture, the Notes or the Note Guarantees.
(b)EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 12.10 Waiver of Immunities.
To the extent that the Issuer or any Guarantor may in any jurisdiction claim for itself or its assets immunity from a suit, execution, attachment, whether in aid of execution, before judgment or otherwise, or other legal process in connection with and as set out in this Indenture, the Notes or the Note Guarantees and to the extent that in any jurisdiction there may be immunity attributed to the Issuer or the Guarantors or the Issuer’s or any Guarantor’s assets, whether or not claimed, the Issuer or any Guarantor, as applicable, irrevocably agrees for the benefit of the Holders not to claim, and irrevocably waives, the immunity to the full extent permitted by law.
Section 12.11 Currency Rate Indemnity.
The U.S. dollar is the sole currency of account and payment for all sums payable by the Issuer or any Guarantor under or in connection with this Indenture, the Notes and the Note Guarantees, including damages. Any amount with respect to this Indenture, the Notes and the Note Guarantees 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 or any Guarantor or otherwise by any Holder or by the Trustee, in respect of any sum expressed to be due to it from the Issuer or any Guarantor will only constitute a discharge to the Issuer or any Guarantor 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).
Section 12.12 Successors.
All agreements of the Issuer in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this Indenture will bind its successors. All agreements of each
Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 10.04 hereof.
Section 12.13 Severability.
In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, then (to the extent permitted by applicable law) the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
Section 12.14 Counterpart Originals.
This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Indenture by facsimile or in electronic format shall be effective as delivery of a manually executed counterpart of this Indenture.
Section 12.15 Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
Dated as of August 29, 2022
SIGNATURES
SENSATA TECHNOLOGIES B.V., as Issuer
By: /s/ Maria G. Freve
Name: Maria G. Freve
Title: Director
[Signature Page to Indenture]
STI HOLDCO, INC.
SENSATA TECHNOLOGIES, INC.
BEI NORTH AMERICA, LLC
CRYDOM, INC.
CUSTOM SENSORS & TECHNOLOGIES, INC.
CUSTOM SENSORS & TECHNOLOGIES US CORPORATION
CUSTOM SENSORS & TECHNOLOGIES US LLC
GIGAVAC, LLC
KAVLICO CORPORATION
NEWALL ELECTRONICS INC., each as a Guarantor
By: /s/ Frank E. DeVita
Name: Frank E. DeVita
Title: Treasurer
[Signature Page to Indenture]
CDI NETHERLANDS B.V.
SENSATA TECHNOLOGIES HOLDING COMPANY MEXICO, B.V.
SENSATA TECHNOLOGIES HOLLAND B.V., each as a Guarantor
By: /s/ Maria G. Freve
Name: Maria G. Freve
Title: Director
[Signature Page to Indenture]
SENSATA TECHNOLOGIES BULGARIA EOOD, as a Guarantor
By: /s/ Frank E. DeVita
Name: Frank E. DeVita
Title: Director
[Signature Page to Indenture]
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of | /s/ Frank E. DeVita |
AUGUST UK HOLDCO LIMITED, as a Guarantor | Director |
| |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of | /s/ Frank E. DeVita |
CUSTOM SENSORS & TECHNOLOGIES NEWCO LTD., as a Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of | /s/ Frank E. DeVita |
SENSATA TECHNOLOGIES UK FINANCING CO. PLC, as a Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of | /s/ Frank E. DeVita |
ST SCHRADER HOLDING COMPANY UK LIMITED, as a Guarantor | Director |
[Signature Page to Indenture]
AUGUST BRAZIL HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 168084,
as a Guarantor
By: /s/ Joseph Barberia __________________
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST BRAZIL HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 168084,
as a Guarantor
By: /s/ Dylan Davies____________________
Name: Dylan Davies
Title: Manager (Class B)
[Signature Page to Indenture]
AUGUST LUX HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167704,
as a Guarantor
By: /s/ Joseph Barberia __________________
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST LUX HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167704,
as a Guarantor
By: /s/ Dylan Davies____________________
Name: Dylan Davies
Title: Manager (Class B)
[Signature Page to Indenture]
AUGUST LUXUK HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167757,
as a Guarantor
By: /s/ Joseph Barberia __________________
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST LUXUK HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167757,
as a Guarantor
By: /s/ Dylan Davies____________________
Name: Dylan Davies
Title: Manager (Class B)
[Signature Page to Indenture]
ST AUGUST LUX COMPANY S.À R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192229,
as a Guarantor
By: /s/ Joseph Barberia __________________
Name: Joseph Barberia
Title: Manager (Class A)
ST AUGUST LUX COMPANY S.À R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192229,
as a Guarantor
By: /s/ Dylan Davies____________________
Name: Dylan Davies
Title: Manager (Class B)
[Signature Page to Indenture]
ST AUGUST LUX INTERMEDIATE HOLDCO S.À R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192214,
as a Guarantor
By: /s/ Joseph Barberia __________________
Name: Joseph Barberia
Title: Manager (Class A)
ST AUGUST LUX INTERMEDIATE HOLDCO S.À R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192214,
as a Guarantor
By: /s/ Dylan Davies____________________
Name: Dylan Davies
Title: Manager (Class B)
[Signature Page to Indenture]
SENSATA TECHNOLOGIES JAPAN LIMITED, as a Guarantor
By: /s/ Maria Gonzalez Freve
Name: Maria Gonzalez Freve
Title: Representative Director
[Signature Page to Indenture]
SENSATA MALTA HOLDING LTD.
SENSATA TECHNOLOGIES MALTA LTD., each as a Guarantor
By: /s/ Maria G. Freve
Name: Maria G. Freve
Title: Director
[Signature Page to Indenture]
THE BANK OF NEW YORK MELLON, as Trustee, Registrar and Paying Agent
By: /s/ Teresa H. Wyszomierski
Name: Teresa H. Wyszomierski
Title: Vice President
[Signature Page to Indenture]
EXHIBIT A
[Face of Note]
[Insert legends required by the Indenture]
[Insert as appropriate:
144A CUSIP No.: [ ]
144A ISIN: [ ]
Reg S CUSIP No.: [ ]
Reg S ISIN: U[ ]]
5.875% Senior Notes due 2030
No. [A][S]-[●] $
SENSATA TECHNOLOGIES B.V.
promises to pay to CEDE & CO. or registered assigns, the principal sum of DOLLARS [if the Note is a Global Note, add the following: (as revised by the Schedule of Increases and Decreases in Global Note, attached hereto)] on September 1, 2030.
Interest Payment Dates: September 1 and March 1, commencing March 1, 20231.
Additional provisions of this Note are set forth on the other side of this Note.
Record Dates: February 15 and August 15.
Dated: [ ], [ ]
______________________________
1 Date to be used for Initial Notes; date to be revised as appropriate in the case of any Additional Notes.
SENSATA TECHNOLOGIES B.V.
By:
Name:
Title:
Dated:
Dated:
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK MELLON, as Trustee
By:
Authorized Signatory
[Reverse of Note]
5.875% Senior Notes due 2030
Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
(1) INTEREST. Sensata Technologies B.V. (the “Issuer”), a private company with limited liability incorporated under Dutch law, promises to pay interest on the principal amount of this Note at 5.875% per annum from August 29, 20222 until maturity. The Issuer will pay interest, if any, semi-annually in arrears on September 1 and March 1 of each year (subject to the second following sentence), or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from August 29, 20223, until the principal hereof is due. The first Interest Payment Date shall be March 1, 20234. The Issuer will pay interest on overdue principal at the rate borne by the Notes, and it shall pay interest on overdue installments of interest at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
(2) METHOD OF PAYMENT. The Issuer will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the February 15 or August 15 next preceding the Interest Payment Date (whether or not a Business Day), even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Issuer will pay principal, premium, if any, and interest on Definitive Notes at the office of the Paying Agent. Such payment will be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
(3) PAYING AGENT AND REGISTRAR. Initially, The Bank of New York Mellon, as the Trustee, will act as Paying Agent and Registrar. The Issuer may change any Paying Agent or Registrar without notice to any Holder. The Issuer or any of its Subsidiaries may act in any such capacity.
(4) INDENTURE. The Issuer issued the Notes under the Indenture dated as of August 29, 2022 (the “Indenture”) among the Issuer, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all the terms and provisions of the Indenture, and Holders are referred to the Indenture for a statement of such terms. To the extent
________________________________
2 Date to be used for Initial Notes; date to be revised as appropriate in the case of any Additional Notes.
3 Date to be used for Initial Notes; date to be revised as appropriate in the case of any Additional Notes.
4 Date to be used for Initial Notes; date to be revised as appropriate in the case of any Additional Notes.
any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
The Notes are unsecured senior obligations of the Issuer. This Note is one of the Initial Notes referred to in the Indenture5. The Notes include the Initial Notes and any Additional Notes issued in exchange for Initial Notes or Additional Notes issued pursuant to the Indenture. The Initial Notes and any Additional Notes are treated as a single class of securities under the Indenture. The Indenture imposes certain limitations on the ability of the Issuer and its Subsidiaries to, among other things, incur Indebtedness (other than the Issuer), create or incur Liens and enter into sale and lease-back transactions. The Indenture also imposes limitations on the ability of the Issuer and each Guarantor to consolidate or merge with or into any other Person or convey, transfer or lease all or substantially all of its property.
To Guarantee the due and punctual payment of the principal and interest on the Notes and all other amounts payable by the Issuer under the Indenture and the Notes when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Guarantors have, jointly and severally, unconditionally Guaranteed the obligations of the Issuer under the Notes on an unsecured senior basis pursuant to the terms of the Indenture.
(5) OPTIONAL REDEMPTION. Except pursuant to Sections 3.07(b) through Section 3.07(e) and 4.15(f) of the Indenture, the Notes will not be optionally redeemable by the Issuer; provided, however, the Issuer may acquire the Notes by means other than an optional redemption.
(a) At any time and from time to time prior to September 1, 2025, the Issuer may redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus the Applicable Premium, plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of Holders of record on the record date to receive interest due on the related Interest Payment Date).
(b) At any time and from time to time on or after September 1, 2025, the Issuer may redeem the Notes, in whole or in part, at the redemption prices (expressed as a percentage of principal amount) set forth below, plus accrued and unpaid interest, if any, to, but excluding, the redemption date (subject to the right of Holders of record on the record date to receive interest due on the related Interest Payment Date):
| | | | | |
| Period Beginning September 1, | Price |
| 2025 | 102.938% |
| 2026 | 101.469% |
| 2027 and thereafter | 100.000% |
(c) At any time and from time to time prior to September 1, 2025, the Issuer may redeem up to 40% of the principal amount of the outstanding Notes (including Additional
________________________________
5 To be used for Initial Notes; to be revised to refer to “one of the Additional Notes” in the case of any Additional Notes
Notes, if any) with the net cash proceeds of one or more Equity Offerings at a redemption price (expressed as a percentage of principal amount) of 105.875%, plus accrued and unpaid interest, if any, to, but excluding, the redemption date; provided that (i) at least 60% of the aggregate principal amount of Notes issued on the Issue Date and any Additional Notes originally issued under the Indenture after the Issue Date remains outstanding immediately after each such redemption, and (ii) notice of any such redemption is given to the Holders within 90 days of the closing of each such Equity Offering.
(d) The Issuer may, at its option, redeem the Notes, in whole but not in part, at any time upon not less than 10 days’ nor more than 30 days’ notice to the Holders (which notice shall be irrevocable and given in accordance with Section 3.03 of the Indenture), at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date, premium, if any, and all Additional Amounts, if any, then due and which will become due on the date of redemption as a result of the redemption or otherwise, if the Issuer determines in good faith that the Issuer or any Guarantor is, or on the next date on which any amount would be payable in respect of the Notes, would be obligated to pay Additional Amounts in respect of the Notes pursuant to the terms and conditions thereof (but, in the case of a Guarantor, only if the payment giving rise to such requirement cannot be made by the Issuer or another Guarantor without the obligation to pay Additional Amounts), which the Issuer or such Guarantor, as the case may be, cannot avoid by the use of reasonable measures available to it (including, without limitation, making payment through a Paying Agent located in another jurisdiction), as a result of:
(1) any change in, or amendment to, the laws or treaties (or any regulations, official guidance or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction affecting taxation which becomes effective on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction that arises after the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under the Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder); or
(2) any change in the official application, administration, or interpretation of the laws, treaties, regulations, official guidance or rulings of any Relevant Taxing Jurisdiction (including a holding, judgment, or order by a court of competent jurisdiction), on or after the Issue Date or, in the case of a Relevant Taxing Jurisdiction that arises after the Issue Date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction under the Indenture (or, in the case of a successor Person, after the date of assumption by the successor person of the obligations thereunder).
Notwithstanding the foregoing, the Issuer may not redeem the Notes under this provision if a Relevant Taxing Jurisdiction changes and the Issuer is obligated to pay Additional Amounts as a result of a Change in Tax Law of such Relevant Taxing Jurisdiction which was officially announced at the time the latter became a Relevant Taxing Jurisdiction.
Notwithstanding the foregoing, no such notice of redemption will be given (i) earlier than 90 days prior to the earliest date on which the Issuer or any Guarantor, would be obliged to make such payment of Additional Amounts or withholding if a payment in respect of the Notes or the relevant Note Guarantee, as the case may be, were then due and (ii) unless at the time such notice is given, the obligation to pay Additional Amounts remains in effect.
(e) Notices of optional redemption will be given at least 10 but not more than 30 days before the redemption date to each Holder of Notes to be redeemed in accordance with Section 12.02 of the Indenture, except that redemption notices may be given more than 30 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture.
(6) MANDATORY REDEMPTION. The Issuer is not required to make any mandatory redemption or sinking fund payments with respect to the Notes.
(7) REPURCHASE AT THE OPTION OF HOLDER. If a Change of Control occurs, unless the Issuer at such time has given notice of redemption with respect to all outstanding Notes, each Holder will have the right to require the Issuer to repurchase all or any part (in a minimum principal amount of $200,000 and integral multiples of $1,000 in excess thereof) of that Holder’s Notes pursuant to a change of control offer (the “Change of Control Offer”) on the terms set forth in the Indenture. In the Change of Control Offer, the Issuer will offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest on the Notes repurchased, to, but excluding, the Change of Control Payment Date. Within 30 days following any Change of Control, unless the Issuer at such time has given notice of redemption with respect to all outstanding Notes, the Issuer will give notice to each Holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is given.
(8) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in minimum denominations of $200,000 (the “Minimum Dollar Denomination”) and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuer need not register the transfer of or exchange any Note selected for redemption in whole or in part or subject to purchase in a Change of Control Offer, except the unredeemed or unpurchased portion of any Note being redeemed or purchased in part. Also, the Issuer need not exchange or register the transfer of any Notes for a period of 15 days before the day the Issuer gives notice of redemption of the Notes or makes a Change of Control Offer and ending at the close of business on the day notice of redemption is given or the Change of Control Offer is made.
(9) PERSONS DEEMED OWNERS. The registered Holder of a Note shall be treated as its owner for all purposes.
(10) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent of the Issuer, the Guarantors, the Trustee and Holders of a majority in aggregate principal amount of the then outstanding Notes, including Additional Notes, if any, voting as a single class, and any existing Default or Event or Default or compliance with any provision of the Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes, including Additional Notes, if any, voting as a single class. Without the consent of any Holder of a Note, the Indenture, the Notes or the Note Guarantees may be amended or supplemented:
(i) to cure any ambiguity, mistake, defect or inconsistency;
(ii) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(iii) to provide for the assumption by a Successor Company or a successor company of a Guarantor, as applicable, of the Issuer’s or such Guarantor’s obligations under the Indenture;
(iv) to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights hereunder of any Holder;
(v) to secure the Notes;
(vi) to add a Note Guarantee;
(vii) to conform the text of the Indenture or the Notes to any provision of the “Description of Notes” included in the Offering Memorandum relating to the Notes;
(viii) to provide for the issuance of Additional Notes in accordance with the provisions set forth in the Indenture; or
(ix) to release a Guarantor from its Note Guarantee; provided that such release is in accordance with the applicable provisions of the Indenture;
provided, that the Issuer has delivered to the Trustee an Opinion of Counsel and an Officers’ Certificate, each stating that such amendment or supplement complies with the provisions of Section 9.01 of the Indenture.
(11) DEFAULTS AND REMEDIES. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency with respect to the Issuer, any Subsidiary of the Issuer that is a Significant Subsidiary or any group of Subsidiaries of the Issuer that, taken together, would constitute a Significant Subsidiary of the Issuer, all outstanding Notes will become due and payable immediately without
further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Holders of a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may, on behalf of the Holders of all of the Notes, rescind an acceleration or waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of the principal of, premium, if any, or interest on the Notes or a covenant or provision of the Indenture which cannot be modified or amended without the consent of the Holder of each outstanding Note affected. The Issuer is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Issuer is required, upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default and the remedial action the Issuer proposes to take in connection therewith.
(12) DISCHARGE AND DEFEASANCE. Subject to certain conditions, the Issuer at any time may terminate some or all of its obligations under the Notes, the Note Guarantees and the Indenture if the Issuer deposits with the Trustee money or U.S. Government Securities for the payment of principal of and interest on the Notes to redemption or maturity, as the case may be.
(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Issuer or its Affiliates, and may otherwise deal with the Issuer or its Affiliates, as if it were not the Trustee.
(14) NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Issuer, the Parent, any other direct or indirect parent entity of the Issuer or any Subsidiary of the Issuer, as such, will have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
(15) AUTHENTICATION. This Note will not be valid until authenticated by the manual or electronic signature of the Trustee or an authenticating agent.
(16) ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(17) CUSIP NUMBERS, ISINS. The Issuer has caused CUSIP numbers and ISINs to be printed on the Notes, and the Trustee may use CUSIP numbers and ISINs in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption, and reliance may be placed only on the other identification numbers placed thereon.
(18) GOVERNING LAW. THE LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES.
(19) JURISDICTION; WAIVER OF JURY TRIAL.
(a) Each of the Issuer and the Guarantors has consented to the non-exclusive jurisdiction of any court of the State of New York or any U.S. federal court, in each case, sitting in the Borough of Manhattan, The City of New York, New York, United States, and any appellate court from any thereof in any action or proceeding arising out of or related to this Note, the Indenture or the Note Guarantees. Each of the Issuer and the Guarantors has appointed C T Corporation located at 28 Liberty Street, New York, New York 10005 as its authorized agent upon which service of process may be served in any action or proceeding brought in any court of the State of New York or any U.S. federal court sitting in the Borough of Manhattan, The City of New York in connection with the Indenture, this Note or the Note Guarantees.
(b) EACH OF THE PARTIES TO THE INDENTURE HAS IRREVOCABLY WAIVED ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE INDENTURE, THIS NOTE, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(20) WAIVER OF IMMUNITIES. To the extent that the Issuer or any Guarantor may in any jurisdiction claim for itself or its assets immunity from a suit, execution, attachment, whether in aid of execution, before judgment or otherwise, or other legal process in connection with and as set out in the Indenture, this Note or the Note Guarantees and to the extent that in any jurisdiction there may be immunity attributed to the Issuer or the Guarantors or the Issuer’s or any Guarantor’s assets, whether or not claimed, the Issuer or any Guarantor, as applicable, has irrevocably agreed for the benefit of the Holders not to claim, and irrevocably waived, the immunity to the full extent permitted by law.
(21) CURRENCY RATE INDEMNITY. The U.S. dollar is the sole currency of account and payment for all sums payable by the Issuer or any Guarantor under or in connection with the Notes, including damages. Any amount with respect to the Notes or the Note Guarantee 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 or any Guarantor or otherwise by any Holder or by the Trustee, in respect of any sum expressed to be due to it from the Issuer or any Guarantor will only constitute a discharge to the Issuer or any Guarantor 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).
The Issuer will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:
Sensata Technologies B.V.
c/o Sensata Technologies, Inc.
529 Pleasant Street
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Financial Officer
ASSIGNMENT FORM
To assign this Note, fill in the form below:
| | | | | |
| (I) or (we) assign and transfer this Note to: | (Insert assignee’s legal name) |
(Insert assignee’s soc. sec. or tax I.D. no.) |
(Print or type assignee’s name, address and zip code) |
and irrevocably appoint
to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date:
Your Signature:
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.15 of the Indenture, check the box below:
Section 4.15
If you want to elect to have only part of the Note purchased by the Issuer pursuant to Section 4.15 of the Indenture, state the amount you elect to have purchased:
$
Date:
Your Signature:
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.:
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
SCHEDULE OF INCREASES AND DECREASES OF INTERESTS IN THE GLOBAL NOTE
[To be inserted for 144A Global Note]
The following transfer or exchange of a part of this 144A Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this 144A Global Note, or to reflect a redemption or repurchase of the Notes and cancellation, have been made:
| | | | | | | | | | | | | | |
| Date of Increase or Decrease | Amount of Decrease in Principal Amount at Maturity of this Global Note | Amount of Increase in Principal Amount at Maturity of this Global Note | Principal Amount at Maturity of this Global Note following such Decrease (or Increase) | Signature of Authorized Officer of Trustee or Custodian |
| | | | |
[To be inserted for Regulation S Global Note]
The following transfer or exchange of a part of this Regulation S Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Regulation S Global Note, or to reflect a redemption or repurchase of the Notes and cancellation, have been made:
| | | | | | | | | | | | | | |
| Date of Increase or Decrease | Amount of Decrease in Principal Amount at Maturity of this Global Note | Amount of Increase in Principal Amount at Maturity of this Global Note | Principal Amount at Maturity of this Global Note following such Decrease (or Increase) | Signature of Authorized Officer of Trustee or Custodian |
| | | | |
FORM OF CERTIFICATE OF TRANSFER
Sensata Technologies B.V.
c/o Sensata Technologies, Inc.
529 Pleasant Street
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Financial Officer
The Bank of New York Mellon
Corporate Trust Division
240 Greenwich Street, 7th Floor East
New York, NY 10286
Facsimile No.: (212) 815-5366
Attention: Corporate Trust Division
Re: 5.875% Senior Notes due 2030
Reference is hereby made to the Indenture, dated as of August 29, 2022 (the “Indenture”), among Sensata Technologies B.V., a private company with limited liability incorporated under Dutch law, as issuer (the “Issuer”), the Guarantors party thereto and The Bank of New York Mellon, a New York banking corporation, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
____________________, (the “Transferor”) owns and proposes to transfer the Note[s] or interests in such Note[s] specified in Annex A hereto, in the principal amount of $ ____________ in such Note[s] or interests (the “Transfer”), to _____________________ (the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. ___ Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.
2. ___ Check if Transferee will take delivery of a beneficial interest in a Legended Regulation S Global Note or a Restricted Definitive Note pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Legended Regulation S Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.
3. ___ Check and complete if Transferee will take delivery of a beneficial interest in a Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):
(a) ___ such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;
or
(b) ___ such Transfer is being effected to Sensata Technologies B.V. or a subsidiary thereof;
or
(c) ___ such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act;
or
(d) ___ such Transfer is being effected to an Institutional Accredited Investor and pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Definitive Notes and the requirements of the exemption claimed, which certification is supported by, if such Transfer is in respect of a principal amount of Notes at the time of transfer of less than $200,000, an opinion of counsel acceptable to the Issuer provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the effect that such Transfer is in compliance with the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Notes and in the Indenture and the Securities Act.
4. ____ Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) ___ Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
(b) ___ Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States, (ii) the Transfer is being made after the expiration of the Restricted Period, and (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
(c) ___ Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) ___ a beneficial interest in the:
(i) ___ 144A Global Note (CUSIP ___________), or
(ii)___ Regulation S Global Note (CUSIP ____________); or
(b) ___ a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) ___ a beneficial interest in the:
(i) ___ 144A Global Note (CUSIP __________), or
(ii) __ Regulation S Global Note (CUSIP _________), or
(iii) ___ Unrestricted Global Note (CUSIP _________); or
(b) ___ a Restricted Definitive Note; or
(c) ___ an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
FORM OF CERTIFICATE OF EXCHANGE
Sensata Technologies B.V.
c/o Sensata Technologies, Inc.
529 Pleasant Street
Attleboro, Massachusetts
Facsimile No.: (508) 236-3800
Attention: Chief Financial Officer
The Bank of New York Mellon
Corporate Trust Division
240 Greenwich Street, 7th Floor East
New York, NY 10286
Facsimile No.: (212) 815-5366
Attention: Corporate Trust Division
Re: 5.875% Senior Notes due 2030
Reference is hereby made to the Indenture, dated as of August 29, 2022 (the “Indenture”), among Sensata Technologies B.V., a private company with limited liability incorporated under Dutch law, as issuer (the “Issuer”), the Guarantors party thereto and The Bank of New York Mellon, a New York banking corporation, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
________________, (the “Owner”) owns and proposes to exchange the Note[s] or interests in such Note[s] specified herein, in the principal amount of $ _________ (CUSIP ________; ISIN _______________) in such Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note
(a) ___ Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(b) ___ Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(c) ___ Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(d) ___ Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes
(a) ___ Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.
(b) ___ Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE] ___ 144A Global Note/ _______ Regulation S Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii)
such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally Guaranteed, to the extent set forth in and subject to the provisions in the Indenture dated as of August 29, 2022, (as amended, modified or supplemented from time to time, the “Indenture”) among Sensata Technologies B.V., a private company with limited liability incorporated under Dutch law, the Guarantors party thereto, and The Bank of New York Mellon, a New York banking corporation, as trustee (the “Trustee”), (a) prompt payment of the principal of, premium, if any, and accrued and unpaid interest and defaulted interest, if any, on the Notes when due, whether at maturity, by acceleration, redemption or otherwise, and the prompt payment of interest on overdue principal, premium, if any, and interest and defaulted interest, if any, on the Notes (pursuant to Section 2.12 of the Indenture), if lawful (subject in all cases to any applicable grace periods provided in the Indenture and the Notes) when due, and all other obligations of the Issuer to the Holders or the Trustee under the Indenture and the Notes will be promptly paid in full, all in accordance with the terms of the Indenture and the Notes and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same will be promptly paid in full when due in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the Note Guarantee and the Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee (including Sections 12.08 and 12.09 of the Indenture on Governing Law and Jurisdiction, respectively). Each Holder of a Note, by accepting the same, agrees to and shall be bound by such provisions. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS HEREOF, each Guarantor has caused this Notation of Guarantee to be signed manually, by facsimile or electronically by its duly authorized officer.
[NAME OF GUARANTOR]
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of , ____________,20__, among ___________________ (the “New Guarantor”), a subsidiary of Sensata Technologies B.V., a private company with limited liability incorporated under Dutch law (the “Issuer”), the Issuer, and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S E T H
WHEREAS, the Issuer and certain Subsidiaries of the Issuer have heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified, the “Indenture”), dated as of August 29, 2022 providing for the issuance of 5.875% Senior Notes due 2030 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantor shall execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantor shall unconditionally Guarantee all of the Issuer’s obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and the Issuer are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the 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. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Issuer, the Parent, any other direct or indirect parent entity of the Issuer or any Subsidiary of the Issuer, as such, will have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to the New Guarantor shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. JURISDICTION; WAIVER OF JURY TRIAL. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. COUNTERPARTS. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Supplemental Indenture by facsimile or in electronic format shall be effective as delivery of a manually executed counterpart of this Indenture.
9. EFFECT OF HEADINGS. Headings of the Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantee of the New Guarantor or this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
[NEW GUARANTOR]
By:
Name:
Title:
SENSATA TECHNOLOGIES B.V.
By:
Name:
Title:
THE BANK OF NEW YORK MELLON as Trustee
By:
Name:
Title:
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of October 24, 2022, among Dynapower Company LLC, a Delaware limited liability company (“Dynapower”) and an indirect subsidiary of Sensata Technologies B.V., a private company with limited liability incorporated under the laws of the Netherlands (the “Issuer”), Xirgo Technologies, LLC, a Delaware limited liability company (“Xirgo”) and an indirect subsidiary of the Issuer, SmartWitness USA, LLC, an Illinois limited liability company (“SmartWitness” and, together with Dynapower and Xirgo, the “New Guarantors” and each a “New Guarantor”) and an indirect subsidiary of the Issuer, the Issuer and The Bank of New York Mellon, a New York banking corporation, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Issuer and certain of its Subsidiaries have heretofore executed and delivered to the Trustee an indenture, dated as of August 29, 2022 (as amended, supplemented or otherwise modified, the “Indenture”), providing for the issuance by the Issuer of 5.875% Senior Notes due 2030 (the “Notes”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the New Guarantors shall execute and deliver to the Trustee a supplemental indenture pursuant to which each New Guarantor shall unconditionally Guarantee all of the Issuer’s obligations under the Notes and the Indenture on the terms and conditions set forth herein and therein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and the Issuer are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, each 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. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each New Guarantor hereby agrees, jointly and severally with all existing Guarantors, to provide an unconditional Note Guarantee on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture, and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of the Issuer, the Parent, any other direct or indirect parent entity of the Issuer or any Subsidiary of the Issuer, as such, will have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Indenture or the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to each New Guarantor shall be given as provided in Section 12.02 of 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 a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. JURISDICTION; WAIVER OF JURY TRIAL. THE PROVISIONS UNDER SECTION 12.09 OF THE INDENTURE SHALL APPLY TO THIS SUPPLEMENTAL INDENTURE.
8. COUNTERPARTS. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Supplemental Indenture by facsimile or in electronic format shall be effective as delivery of a manually executed counterpart of this Indenture.
9. EFFECT OF HEADINGS. The Headings of the Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or sufficiency of the Note Guarantee of each New Guarantor or this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
DYNAPOWER COMPANY LLC, as a New Guarantor
By: DP Acquisition Corporation, its sole member
By: /s/ Frank E. DeVita__________________
Name: Frank E. DeVita
Title: Treasurer
XIRGO TECHNOLOGIES, LLC, as a New Guarantor
By: Xirgo Technologies Intermediate Holdings,
LLC, its sole member
By: Sensata Technologies, Inc., its managing
member
By: /s/ Frank E. DeVita________________
Name: Frank E. DeVita
Title: Treasurer
SMARTWITNESS USA, LLC, as a New Guarantor
By: SmartWitness Holdings, Inc., its sole member
By: /s/ Frank E. DeVita__________________
Name: Frank E. DeVita
Title: Treasurer
SENSATA TECHNOLOGIES, B.V., as the Issuer
By: /s/ Maria G. Freve____________________
Name: Maria G. Freve
Title: Director
[Signature Page to Supplemental Indenture – STBV 2030 Notes]
THE BANK OF NEW YORK MELLON, as Trustee
By: /s/ Teresa H. Wyszomierski______________
Name: Teresa H. Wyszomierski
Title: Vice President
[Signature Page to Supplemental Indenture – STBV 2030 Notes]
AMENDMENT NO. 12 TO CREDIT AGREEMENT
AMENDMENT NO. 12 TO CREDIT AGREEMENT dated as of January 4, 2023 (this “Amendment”), is entered into by and among, SENSATA TECHNOLOGIES, INC. a Delaware corporation (the “Borrower”), SENSATA TECHNOLOGIES INTERMEDIATE HOLDING B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands (the “Parent”), the undersigned Guarantors and MORGAN STANLEY SENIOR FUNDING, INC. as administrative agent and collateral agent on behalf of the lenders party to the Credit Agreement (as defined below) (in such capacity, the “Administrative Agent”).
PRELIMINARY STATEMENTS:
WHEREAS, the Borrower, the Parent, the Administrative Agent and certain lenders are parties to that certain Credit Agreement, dated as of May 12, 2011, as amended, amended and restated, supplemented, waived or otherwise modified prior to the date hereof (as so amended, restated, supplemented waived or otherwise modified, the “Credit Agreement” and as further amended or otherwise modified pursuant to this Amendment, the “Amended Credit Agreement”; capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Credit Agreement);
WHEREAS, the Administrative Agent and the Borrower have determined and agreed (i) that a Benchmark Transition Event has occurred with respect to the existing Benchmark Rate applicable to the Term Loans under the Credit Agreement, (ii) to establish Adjusted Term SOFR as the Benchmark Replacement applicable to the Term Loans under the Credit Agreement, (iii) that the Benchmark Transition Start Date for such Benchmark Replacement is determined under sub-clause (a)(ii) of the definition “Benchmark Transition Start Date” contained in the Credit Agreement, (iv) that such Benchmark Transition Start Date shall be April 1, 2023, and (v) to amend the Credit Agreement appropriately to reflect the foregoing and to make such other related changes to the Credit Agreement as are set forth herein, all subject to the terms and conditions set forth herein; and
WHEREAS, the Borrower, the Parent and the Administrative Agent have agreed to further amend or otherwise modify the Credit Agreement, as set forth or contemplated herein, as authorized by Section 1.11 of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto hereby agree as follows:
SECTION 1.Amendments. Subject to the satisfaction of the conditions precedent to the effectiveness of this Amendment set forth in Section 3 hereof and the proviso below, the Credit Agreement is hereby amended (i) to delete the struck text (indicated textually in the same manner as the following example: struck text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the Amended Credit Agreement attached as Annex A hereto and (ii) to amend and restate Exhibit A to the Amended Credit Agreement in the form attached as Annex A-1 hereto; provided that (subject to the satisfaction of such conditions precedent as provided above) all such amendments shall become effective on April 1, 2023.
Americas/2023410934.5 Amendment No. 12 to Credit Agreement
SECTION 2.Reference to and Effect on the Loan Documents.
(a)On and after the Twelfth Amendment Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to the “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as amended by this Amendment. For the avoidance of doubt, this Amendment shall also constitute a Loan Document under the Credit Agreement, as amended by this Amendment.
(b)The Credit Agreement, and the other Loan Documents, as specifically amended or otherwise modified (or contemplated to be amended or otherwise modified) by this Amendment, are, and shall continue to be, in full force and effect, and are hereby in all respects ratified and confirmed.
(c)Except as expressly provided herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under the Credit Agreement or any other Loan Document, nor shall it constitute a waiver of any provision of the Credit Agreement or any other Loan Document.
(d)Pursuant to Section 1.11(a) and (b) of the Credit Agreement, the Administrative Agent, on behalf of the Lenders, is authorized and directed to execute this Amendment, to take any and all actions and execute such documents as shall be required to give effect to or otherwise implement this Amendment and to exercise such powers under the Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto.
SECTION 3.Conditions of Effectiveness for Amendment. Subject to the proviso set forth in Section 1 of this Amendment, this Amendment shall become effective on the date on which the following conditions shall have been satisfied (the “Twelfth Amendment Effective Date”):
(a) The Administrative Agent shall have received counterparts of this Amendment executed by the Borrower, the Parent and the other Guarantors;
(b) Immediately prior to and after giving effect to the date that would otherwise be the Twelfth Amendment Effective Date, no Default or Event of Default has occurred and is continuing; and
(c) To the extent invoiced at least three Business Days prior to the Twelfth Amendment Effective Date, all reasonable and documented fees and out of pocket expenses payable to the Administrative Agent shall have been paid to the extent due and payable in accordance with Section 5 of this Amendment and Section 10.04 of the Credit Agreement.
SECTION 4.Representations and Warranties. Each of the Parent and the Borrower hereby represents and warrants to the Administrative Agent that (to the extent applicable to such entity):
Americas/2023410934.5 Amendment No. 12 to Credit Agreement
(a) on and as of the date hereof (i) it has all requisite corporate or other power and authority to enter into and perform its obligations under this Amendment, the Credit Agreement as amended hereby and the other Loan Documents to which it is a party, and (ii) this Amendment has been duly authorized, executed and delivered by it; and
(b) this Amendment and the Credit Agreement as amended hereby constitute legal, valid and binding obligations of such party, enforceable against it in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in equity or at law).
SECTION 5.Costs and Expenses. The Borrower agrees that all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder or in connection herewith (including, without limitation, the Attorney Costs of one counsel for all Lenders and the Administrative Agent (which shall be Shearman & Sterling LLP)) are expenses that the Borrower is required to pay or reimburse pursuant to Section 10.04 of the Credit Agreement.
SECTION 6.Execution in Counterparts. This Amendment may be executed in one or more counterparts (and by different parties hereto in different counterparts), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by electronic transmission of an executed counterpart of a signature page to this Amendment, including by email with a pdf copy hereof attached, shall be effective as delivery of an original executed counterpart of this Amendment. The words “execution”, “signed”, “signature”, “delivery” and words of like import in or relating to this Amendment shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by emailed pdf or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, 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. As used herein, “Electronic Signature” shall mean an electronic sound, symbol or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
SECTION 7.Governing Law and Waiver of Right of Trial by Jury. This Amendment is subject to the provisions of Sections 10.17 and 10.18 of the Credit Agreement relating to governing law, waiver of right to submission to jurisdiction, venue and waiver of trial by jury, the provisions which are by this reference incorporated herein in full.
SECTION 8.Guarantor Affirmation. The Borrower and each Guarantor party hereto hereby (a) acknowledges and consents to this Amendment; (b) ratifies and confirms all of its respective obligations and liabilities under the Loan Documents (as amended or modified (or contemplated to be amended or modified) by this Amendment) to which it is a party and ratifies and confirms that such obligations and liabilities remain in full force and effect and extend to and continue in effect with respect to, and continue to guarantee and secure, as applicable, the obligations of the Borrower under the Amended Credit Agreement; and (c) acknowledges and confirms that the liens and security interests granted by it pursuant to the Collateral Documents to which it is a party are and continue to be valid and perfected (if and to the extent required to be perfected under the Collateral Documents to which it is a party) liens and security interests in the Collateral (subject only to Liens permitted under the Loan Documents) that secure all of the
Americas/2023410934.5 Amendment No. 12 to Credit Agreement
obligations of such Guarantor under the Loan Documents (as amended or modified (or contemplated to be amended or modified) by this Amendment) to which it is a party to the same extent that such liens and security interests in the Collateral were valid and perfected (if and to the extent required to be perfected under the Collateral Documents to which it is a party) immediately prior to giving effect to the execution and delivery of this Amendment.
SECTION 9.Dutch Security Confirmation. Without prejudice to the foregoing, each of the Parent and STBV hereby, in respect of any security documents to which it is a party and pursuant to which a security interest is created or purported to be created governed by Dutch law (each a “Dutch Security Document”), irrevocably and unconditionally agrees and confirms (vaststellen), within the meaning of Article 7:900 of the Dutch Civil Code that (i) the security rights created by it and constituted by such Dutch Security Document are not affected by any amendment of, or waiver under, the Credit Agreement or any other Loan Documents as contemplated by this Amendment, (ii) the security rights created by it and constituted by such Dutch Security Document are intended to and will secure the obligations of the Parent or STBV, as applicable, under or in connection with the Loan Documents contemplated to be secured by such Dutch Security Document, including without limitation under or pursuant to the Parallel Obligations (as defined in each Dutch Security Document), as amended by this Amendment, and (iii) the Principal Obligations (as defined in each such Dutch Security Document, as applicable) will include (but not be limited to) all present and future obligations of the Parent or STBV (as defined in the relevant Dutch Security Documents) towards the Secured Parties under the Amended Credit Agreement and the other Loan Documents contemplated to be secured by such Dutch Security Document, including without limitation all present and future obligations of the Parent or STBV, as applicable, under or in connection with its Parallel Obligations contemplated to be secured by such Dutch Security Document, and all Secured Obligations contemplated to be secured by each Dutch Security Document are secured and will continue to be secured by the security created by such Dutch Security Document. This Section 9 is governed by and shall be construed in accordance with Dutch law.
SECTION 10.Continuing Obligations. The Obligations existing immediately prior to the Twelfth Amendment Effective Date shall, to the extent outstanding immediately following the Twelfth Amendment Effective Date, comprise Obligations under the Amended Credit Agreement and each other Loan Document, and neither this Amendment nor the transactions contemplated in connection herewith shall constitute a novation or termination of such Obligations, and the Collateral shall continue to secure, support and otherwise benefit the Obligations of the Loan Parties under the Amended Credit Agreement and each other Loan Document.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Americas/2023410934.5 Amendment No. 12 to Credit Agreement
IN WITNESS WHEREOF, the parties have caused this Amendment No. 12 to Credit Agreement to be executed by their respective authorized officers as of the date first above written.
SENSATA TECHNOLOGIES, INC., as the Borrower
By: /s/ Paul Vasington
Name: Paul Vasington
Title: Executive Vice President and Chief
Financial Officer
Americas/2023410934.5 Amendment No. 12 to Credit Agreement
BEI NORTH AMERICA, LLC
CRYDOM, INC.
CUSTOM SENSORS & TECHNOLOGIES, INC.
CUSTOM SENSORS & TECHNOLOGIES US CORPORATION
CUSTOM SENSORS & TECHNOLOGIES US LLC
GIGAVAC, LLC
KAVLICO CORPORATION
NEWALL ELECTRONICS INC.
STI HOLDCO, INC., each as a Guarantor
By: _/s/ Frank E. DeVita_____________________
Name: Frank E. DeVita
Title: Treasurer
DYNAPOWER COMPANY LLC, as a Guarantor
By: DP Acquisition Corporation, its sole member
By: /s/ Frank E. DeVita
Name: Frank E. DeVita
Title: Treasurer
XIRGO TECHNOLOGIES, LLC, as a Guarantor
By: Xirgo Technologies Intermediate Holdings, LLC, its sole member
By: Sensata Technologies, Inc., its managing member
By: /s/ Frank E. DeVita
Name: Frank E. DeVita
Title: Treasurer
Americas/2023410934.5 Amendment No. 12 to Credit Agreement
SMARTWITNESS USA, LLC, as a Guarantor
By: SmartWitness Holdings, Inc., its sole member
By: /s/ Frank E. DeVita
Name: Frank E. DeVita
Title: Treasurer
Americas/2023410934.5 Amendment No. 12 to Credit Agreement
SENSATA TECHNOLOGIES B.V.
CDI NETHERLANDS B.V.
SENSATA TECHNOLOGIES HOLDING COMPANY MEXICO, B.V.
SENSATA TECHNOLOGIES HOLLAND B.V., each as a Guarantor
By: /s/ Maria G. Freve
Name: Maria G. Freve
Title: Director
SENSATA TECHNOLOGIES INTERMEDIATE HOLDING B.V., as the Parent and as a Guarantor
By: /s/ Maria G. Freve
Name: Maria G. Freve
Title: Director
Americas/2023410934.5 Amendment No. 12 to Credit Agreement
SENSATA TECHNOLOGIES BULGARIA EOOD, as a Guarantor
By: /s/ Frank E. DeVita
Name: Frank E. DeVita
Title: Director
Americas/2023410934.5 Amendment No. 12 to Credit Agreement
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita |
AUGUST UK HOLDCO LIMITED, as a Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of | /s/ Frank E. DeVita |
CUSTOM SENSORS & TECHNOLOGIES NEWCO LTD., as a Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita |
SENSATA TECHNOLOGIES UK FINANCING CO. PLC, as a Guarantor | Director |
| | | | | |
Signed by Frank E. DeVita (name of director) for and on behalf of |
/s/ Frank E. DeVita |
ST SCHRADER HOLDING COMPANY UK LIMITED, as a Guarantor | Director |
Americas/2023410934.5 Amendment No. 12 to Credit Agreement
AUGUST BRAZIL HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 168084,
as a Guarantor
By: /s/ Joseph Barberia
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST BRAZIL HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 168084,
as a Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager (Class B)
Americas/2023410934.5 Amendment No. 12 to Credit Agreement
AUGUST LUX HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167704,
as a Guarantor
By: /s/ Joseph Barberia
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST LUX HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167704,
as a Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager (Class B)
Americas/2023410934.5 Amendment No. 12 to Credit Agreement
AUGUST LUXUK HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167757,
as a Guarantor
By: /s/ Joseph Barberia
Name: Joseph Barberia
Title: Manager (Class A)
AUGUST LUXUK HOLDING COMPANY
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 167757,
as a Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager (Class B)
Americas/2023410934.5 Amendment No. 12 to Credit Agreement
ST AUGUST LUX COMPANY S.À R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192229,
as a Guarantor
By: /s/ Joseph Barberia
Name: Joseph Barberia
Title: Manager (Class A)
ST AUGUST LUX COMPANY S.À R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192229,
as a Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager (Class B)
Americas/2023410934.5 Amendment No. 12 to Credit Agreement
ST AUGUST LUX INTERMEDIATE HOLDCO S.À R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192214,
as a Guarantor
By: /s/ Joseph Barberia
Name: Joseph Barberia
Title: Manager (Class A)
ST AUGUST LUX INTERMEDIATE HOLDCO S.À R.L.
Société à responsabilité limitée
Registered office: 12E, rue Guillaume Kroll,
L-1882 Luxembourg
Luxembourg R.C.S.: B 192214,
as a Guarantor
By: /s/ Dylan Davies
Name: Dylan Davies
Title: Manager (Class B)
Americas/2023410934.5 Amendment No. 12 to Credit Agreement
SENSATA TECHNOLOGIES JAPAN LIMITED, as a Guarantor
By: /s/ Maria Gonzalez Freve
Name: Maria Gonzalez Freve
Title: Representative Director
Americas/2023410934.5 Amendment No. 12 to Credit Agreement
SENSATA MALTA HOLDING LTD.
SENSATA TECHNOLOGIES MALTA LTD., each as a Guarantor
By: /s/ Maria G. Freve
Name: Maria G. Freve
Title: Director
Americas/2023410934.5 Amendment No. 12 to Credit Agreement
MORGAN STANLEY SENIOR FUNDING, INC., as Administrative Agent
By: /s/ Lisa Hanson
Name: Lisa Hanson
Title: Vice President
Amendment No. 12 to Credit Agreement
Americas/2023410934.5
Annex A
Amended Credit Agreement
AMERICAS/2023410772.12023410772.9
CONFORMED CREDIT AGREEMENT
Dated as of May 12, 2011
(as amended by Amendment No. 1 to Credit Agreement, dated as of December 6, 2012, Amendment No. 2 to Credit Agreement, dated as of December 11, 2013, Amendment No. 3 to Credit Agreement, dated as of October 14, 2014, Amendment No. 4 to Credit Agreement, dated as of November 4, 2014, Amendment No. 5 to Credit Agreement, dated as of March 26, 2015, Amendment No. 6 to Credit Agreement, dated as of May 11, 2015, Amendment No. 7 to Credit Agreement, dated as of September 29, 2015, Amendment No. 8 to Credit Agreement, dated as of November 7, 2017, Amendment No. 9 to Credit Agreement, dated as of March 27, 2019, Amendment No. 10 to Credit Agreement, dated as of September 20, 2019 and, Amendment No. 11 to Credit Agreement, dated as of June 23, 2022, and Amendment No. 12 to Credit Agreement, dated as of January 4, 2023)
among
SENSATA TECHNOLOGIES B.V.
as Original BV Borrower
SENSATA TECHNOLOGIES FINANCE COMPANY, LLC
as Original US Borrower
SENSATA TECHNOLOGIES, INC.
as Borrower
SENSATA TECHNOLOGIES INTERMEDIATE HOLDING B.V.
as Parent
MORGAN STANLEY SENIOR FUNDING, INC.
as Administrative Agent
THE INITIAL L/C ISSUER AND INITIAL SWING LINE LENDER NAMED HEREIN
As Initial L/C Issuer and Initial Swing Line Lender
THE OTHER LENDERS PARTY HERETO
MORGAN STANLEY SENIOR FUNDING, INC.
BARCLAYS BANK PLC
as Joint Lead Arrangers
MORGAN STANLEY SENIOR FUNDING, INC.
BARCLAYS BANK PLC
GOLDMAN SACHS BANK USA
BMO CAPITAL MARKETS1
RBC CAPITAL MARKETS2
as Joint Bookrunners
BARCLAYS BANK PLC
as Syndication Agent
*BMO Capital Markets is a trade name for the Bank of Montreal.
+RBC Capital Markets is a brand name for the capital markets activities of Royal Bank of Canada and its affiliates.
AMERICAS/2023410772.12023410772.9 Credit Agreement
FH10936982.1
GOLDMAN SACHS BANK USA
BANK OF MONTREAL
ROYAL BANK OF CANADA
MIZUHO CORPORATE BANK, LTD.
RAYMOND JAMES BANK, FSB
CRÉDIT INDUSTRIEL ET COMMERCIAL
as Co-Documentation Agents
AMERICAS/2023410772.12023410772.9 Credit Agreement
FH10936982.1
[Different first page link-to-previous setting changed from on in original to off in modified.].
EXECUTION VERSION
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Defined Terms 1
SECTION 1.02. Other Interpretive Provisions 7173
SECTION 1.03. Accounting Terms 7274
SECTION 1.04. Rounding 7375
SECTION 1.05. References to Agreements and Laws 7375
SECTION 1.06. Times of Day 7375
SECTION 1.07. Timing of Payment or Performance 7375
SECTION 1.08. Currency Equivalents Generally 7375
SECTION 1.09. Certain Calculations 7476
SECTION 1.10. Delaware LLC Divisions 7476
SECTION 1.11. Effect of a Benchmark Transition Event 75Replacement Setting 76
SECTION 1.12. Limited Condition Transactions 7681
SECTION 1.13. Revolving Credit Facility Benchmark Replacement Setting 77Rates 83
SECTION 1.14 Rates. 79
ARTICLE 2 THE COMMITMENTS AND CREDIT EXTENSIONS
SECTION 2.01. The Loans 8083
SECTION 2.02. Borrowings, Conversions and Continuations of Loans 8184
SECTION 2.03. Letters of Credit 8386
SECTION 2.04. Swing Line Loans 9295
SECTION 2.05. Prepayments 9598
SECTION 2.06. Termination or Reduction of Revolving Credit Commitments 107110
SECTION 2.07. Repayment of Loans 108111
SECTION 2.08. Interest 109112
SECTION 2.09. Fees 109112
SECTION 2.10. Computation of Interest and Fees 110113
SECTION 2.11. Evidence of Indebtedness 110114
SECTION 2.12. Payments Generally 111114
SECTION 2.13. Sharing of Payments 113117
SECTION 2.14. Increase in Commitments 114117
SECTION 2.15. [Intentionally omitted] 116119
SECTION 2.16. Currency Equivalents 116120
SECTION 2.17. Refinancing Amendments 117120
SECTION 2.18. Extensions of Loans and Commitments 117121
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ARTICLE 3
TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY
SECTION 3.01. Taxes 120123
SECTION 3.02. Illegality 122125
SECTION 3.03. Inability to Determine Rates 123126
SECTION 3.04. Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar RateTerm SOFR Loans 123127
SECTION 3.05. Funding Losses 125128
SECTION 3.06. Matters Applicable to Requests for Compensation 125128
SECTION 3.07. Replacement of Lenders Under Certain Circumstances 126130
SECTION 3.08. Survival 127131
ARTICLE 4
CONDITIONS PRECEDENT
SECTION 4.01. Conditions Precedent to Initial Credit Extension 127131
SECTION 4.02. Conditions to All Credit Extensions After the Closing Date 130133
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. Existence, Qualification and Power; Compliance with Laws 131134
SECTION 5.02. Authorization; No Contravention 131134
SECTION 5.03. Governmental Authorization; Other Consents 131135
SECTION 5.04. Binding Effect 132135
SECTION 5.05. Financial Statements; No Material Adverse Effect 132135
SECTION 5.06. Litigation 133136
SECTION 5.07. Ownership of Property; Liens 133136
SECTION 5.08. Environmental Compliance 133137
SECTION 5.09. Taxes 134138
SECTION 5.10. ERISA Compliance 135138
SECTION 5.11. Subsidiaries; Equity Interests 135139
SECTION 5.12. Margin Regulations; Investment Company Act 136139
SECTION 5.13. Disclosure 136139
SECTION 5.14. Intellectual Property, Licenses, Etc 136139
SECTION 5.15. Solvency 136140
SECTION 5.16. Perfection, Mortgages, Etc 137140
SECTION 5.17. Compliance with Laws Generally 137140
SECTION 5.18. Labor Matters 137140
SECTION 5.19. EEA Financial Institution 137141
SECTION 5.20. Beneficial Ownership 137141
SECTION 5.21. Sanctions; Anti-Corruption; Anti-Money Laundering 137141
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ARTICLE 6
AFFIRMATIVE COVENANTS
SECTION 6.01. Financial Statements 138141
SECTION 6.02. Certificates; Other Information 139142
SECTION 6.03. Notices 141144
SECTION 6.04. Payment of Obligations 142145
SECTION 6.05. Preservation of Existence, Etc 142145
SECTION 6.06. Maintenance of Properties 142145
SECTION 6.07. Maintenance of Insurance 142145
SECTION 6.08. Compliance with Laws 142146
SECTION 6.09. Books and Records 142146
SECTION 6.10. Inspection Rights 143146
SECTION 6.11. Use of Proceeds 143146
SECTION 6.12. Covenant to Guarantee Obligations and Give Security 143146
SECTION 6.13. [Reserved] 146149
SECTION 6.14. Further Assurances 146149
SECTION 6.15. Designation of Subsidiaries 147150
SECTION 6.16. Maintenance of Ratings 147150
SECTION 6.17. [Reserved] 147150
SECTION 6.18. [Reserved] 147150
SECTION 6.19. Post-Closing Covenant 147150
SECTION 6.20. Post-Fifth Amendment Effective Date Covenant 148151
SECTION 6.21. Post-Sixth Amendment Effective Date Covenant 148151
SECTION 6.22. Post- Seventh Amendment Effective Date Covenant 148151
SECTION 6.23. Post-Tenth Amendment Effective Date Covenant 148151
SECTION 6.24. Change in Nature of Business 148151
SECTION 6.25. Transactions with Affiliates 148152
ARTICLE 7
NEGATIVE COVENANTS
SECTION 7.01. Liens 149153
SECTION 7.02. Investments 153156
SECTION 7.03. Indebtedness 157160
SECTION 7.04. Fundamental Changes 160164
SECTION 7.05. Dispositions 161165
SECTION 7.06. Restricted Payments 164167
SECTION 7.07. [Reserved] 167170
SECTION 7.08. [Reserved] 167170
SECTION 7.09. Burdensome Agreements 167170
SECTION 7.10. Holding Company 168171
SECTION 7.11. Senior Secured Net Leverage Ratio 168172
SECTION 7.12. Amendments of Certain Documents 169172
SECTION 7.13. Accounting Changes 169172
SECTION 7.14. Prepayments, Etc. of Subordinated Indebtedness 169172
SECTION 7.15. Designated Senior Debt 169173
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ARTICLE 8
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.01. Events of Default 170173
SECTION 8.02. Remedies Upon Event of Default 172175
SECTION 8.03. Application of Funds 173176
ARTICLE 9
ADMINISTRATIVE AGENT AND OTHER AGENTS
SECTION 9.01. Authorization and Action 174178
SECTION 9.02. Agents’ Reliance, Etc 175179
SECTION 9.03. Morgan Stanley Senior Funding, Inc., Barclays Bank PLC, Goldman Sachs Bank USA, Bank of Montreal, Royal Bank of Canada, Mizuho Corporate Bank, Ltd., Raymond James Bank, FSB and Crédit Industriel et Commercial and Affiliates 176179
SECTION 9.04. Lender Credit Decision 176180
SECTION 9.05. Indemnification 177180
SECTION 9.06. Successor Agents 178181
SECTION 9.07. Other Agents; Arrangers and Managers 179182
SECTION 9.08. Release of Liens and Guarantees 179182
SECTION 9.09. Recovery of Erroneous Payments 180183
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Amendments, Etc 183186
SECTION 10.02. Notices and Other Communications; Facsimile Copies 185189
SECTION 10.03. No Waiver; Cumulative Remedies 186190
SECTION 10.04. Attorney Costs, Expenses and Taxes 186190
SECTION 10.05. Indemnification by the Borrower 187190
SECTION 10.06. Payments Set Aside 188192
SECTION 10.07. Successors and Assigns 189192
SECTION 10.08. Confidentiality 193196
SECTION 10.09. Setoff 193197
SECTION 10.10. Interest Rate Limitation 194197
SECTION 10.11. Counterparts 194198
SECTION 10.12. Integration 194198
SECTION 10.13. Survival of Representations and Warranties 195198
SECTION 10.14. Severability 195198
SECTION 10.15. Tax Forms 195198
SECTION 10.16. Process Agent 197201
SECTION 10.17. GOVERNING LAW 198201
SECTION 10.18. WAIVER OF RIGHT TO TRIAL BY JURY 198201
SECTION 10.19. Binding Effect 198202
SECTION 10.20. USA Patriot Act Notice 199202
SECTION 10.21. Supplemental Obligations 199202
SECTION 10.22. Affiliate Activities 200203
SECTION 10.23. No Advisory or Fiduciary Responsibility 200203
SECTION 10.24. Judgment Currency 201204
SECTION 10.25. Release of Guarantors 201205
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SECTION 10.26. Acknowledgement and Consent to Bail-In of EEA Financial Institutions 204207
SECTION 10.27. Lender Representations 204208
SECTION 10.28. Acknowledgement Regarding Any Supported QFCs 206209
SECTION 10.29. Assignment of Original Borrowers 206210
SCHEDULES
I Guarantors
II Foreign Security Agreements
III Dutch Security Documents
1.01 Permitted Reorganization
2.01 Commitments
5.06 Disclosed Litigation
5.07(c) Material Real Properties Pledged as Collateral
5.10(b) Material ERISA Claims, Actions, Suits, or Action by Governmental Authority
5.10(c) ERISA Events or Material Liabilities
5.11 Subsidiaries
5.14 IP Rights
7.01(b) Existing Liens
7.02(f) Existing Investments
7.03(c)(i) Existing Indebtedness
7.05(t) Permitted Dispositions
7.08 Transactions with Affiliates
7.09 Burdensome Agreements
10.02 Administrative Agent’s Office, Certain Addresses for Notices
EXHIBITS
Form of
A Committed Loan Notice
B Swing Line Loan Notice
B-1 Form of U.S. Tax Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
B-2 Form of U.S. Tax Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
B-3 Form of U.S. Tax Certificate (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
B-4 Form of U.S. Tax Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
C-1 Term Note
C-2 Revolving Credit Note
C-3 Swing Line Note
D Compliance Certificate
E Assignment and Assumption
F-1 Domestic Guaranty
F-2 Foreign Guaranty
F-3 BV Guaranty
G Domestic Security Agreement
H-1 Kirkland & Ellis LLP Opinion
H-2 Loyens Loeff and Van Doorne Opinions
I Administrative Questionnaire
J Discount Range Prepayment Notice
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K Discount Range Prepayment Offer
L Specified Discount Prepayment Notice
M Specified Discount Prepayment Response
N Solicited Discounted Prepayment Notice
O Acceptance and Prepayment Notice
P Solicited Discounted Prepayment Offer
Q Solvency Certificate
CREDIT AGREEMENT
This CREDIT AGREEMENT (this “Agreement”) is entered into as of May 12, 2011 among SENSATA TECHNOLOGIES B.V., a besloten vennootschap met beperkte aansprakelijkheid organized under the laws of the Netherlands (the “Original BV Borrower” or “STBV”), SENSATA TECHNOLOGIES FINANCE COMPANY, LLC, a Delaware limited liability company (the “Original US Borrower” and, together with the Original BV Borrower, the “Original Borrowers”), SENSATA TECHNOLOGIES, INC., a Delaware corporation, (the “Borrower”), SENSATA TECHNOLOGIES INTERMEDIATE HOLDING B.V., a besloten vennootschap met beperkte aansprakelijkheid organized under the laws of the Netherlands (the “Parent”), each lender from time to time party hereto (collectively, the “Lenders” and individually, each a “Lender”), the Initial L/C Issuer, the Initial Swing Line Lender and MORGAN STANLEY SENIOR FUNDING, INC., as Administrative Agent.
PRELIMINARY STATEMENTS
The applicable Lenders have indicated their willingness to lend and the L/C Issuer has indicated its willingness to so issue Letters of Credit, in each case, on the terms and subject to the conditions set forth in this Agreement.
In consideration of the mutual covenants and agreements contained in this Agreement, the parties hereto covenant and agree as follows:
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Article 1
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01.Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
“2023 Senior Notes” means the $500,000,000 4.875% senior notes due 2023, issued by STBV.
“2024 Senior Notes” means the $400,000,000 5.625% senior notes due 2024, issued by STBV.
“2025 Senior Notes” means the $700,000,000 5.000% senior notes due 2025, issued by STBV.
“2026 Senior Notes” means the $750,000,000 6.250% senior notes due 2026, issued by Sensata Technologies UK Financing Co. plc.
“2029 Senior Notes” means the $1,000,000,000 4.000% senior notes due 2029, issued by STBV.
“2030 Senior Notes” means the $450,000,000 4.375% senior notes due 2030, issued by the Borrower.
“2031 Senior Notes” means the $750,000,000 3.750% senior notes due 2031, issued by the Borrower.
“Acceptable Discount” has the meaning specified in Section 2.05(a)(iv)(D)(2).
“Acceptable Prepayment Amount” has the meaning specified in Section 2.05(a)(iv)(D)(3).
“Acceptance and Prepayment Notice” means a notice of any Loan Party’s or any Subsidiary of a Loan Party’s acceptance of the Acceptable Discount in substantially the form of Exhibit O.
“Acceptance Date” has the meaning specified in Section 2.05(a)(iv)(D)(2).
“Accepting Lender” has the meaning specified in Section 2.05(b)(viii).
“Additional Commitments Effective Date” has the meaning specified in Section 2.14(b).
“Additional Revolving Credit Commitments” means the commitments of the Additional Revolving Credit Lenders to make Additional Revolving Credit Loans pursuant to Section 2.14.
“Additional Revolving Credit Lenders” means the lenders providing the Additional Revolving Credit Commitments.
AMERICAS/2023410772.12023410772.9 1 Credit Agreement
“Additional Revolving Credit Loans” means any loans made in respect of any Additional Revolving Credit Commitments that shall have been added pursuant to Section 2.14.
“Additional Term Commitments” means the commitments of the Additional Term Lenders to make Additional Term Loans pursuant to Section 2.14.
“Additional Term Lenders” means the lenders providing the Additional Term Loans.
“Additional Term Loans” means any loans made in respect of any additional Term Commitments that shall have been added pursuant to Section 2.14.
“Adjusted Consolidated Funded Indebtedness” means, on any day, the sum of (a) with respect to Consolidated Funded Indebtedness consisting of revolving borrowings, the average daily outstanding amount of such revolving borrowings for the most recently ended Test Period (or, if fewer than four full fiscal quarters have elapsed since the Closing Date, for the period commencing on the Closing Date and ending on the last day of the fiscal quarter most recently ended on or prior to such day) plus (b) with respect to all other Consolidated Funded Indebtedness, the outstanding amount thereof on such day.
“Adjusted Daily Simple SONIA” means, for purposes of any calculation, the rate per annum equal to (a) Daily Simple SONIA plus (b) the SONIA Adjustment.
“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 shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
“Administrative Agent” means Morgan Stanley in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify in writing to the Borrower, the Lenders and the L/C Issuers.
“Administrative Questionnaire” means an Administrative Questionnaire substantially in the form of Exhibit I.
“Affected Financial Institution” shall mean (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
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“Agent-Related Persons” means the Administrative Agent, the Collateral Agent and, in each case, the officers, directors, employees, agents and attorneys-in-fact of such Person.
“Agents” means, collectively, the Administrative Agent, the Syndication Agent and the Co-Documentation Agents.
“Aggregate Commitments” means the Commitments of all the Lenders.
“Agreement” means this Credit Agreement.
“Anti-Money Laundering Laws” means any applicable law, statutes, regulations or obligatory government orders, decrees, ordinances or rules applicable to terrorism financing or money laundering, including any applicable provision of The Currency and Foreign Transactions Reporting Act, and similar laws of all jurisdictions in which the Parent and its Subsidiaries conduct their business and to which they are lawfully subject.
“Applicable Law” means, as to any Person, all applicable Laws binding upon such Person or to which such Person is subject.
“Applicable Rate” means a percentage per annum equal to:
(a) with respect to Term Loans (i) for Eurodollar RateTerm SOFR Loans, 1.75% and (ii) for Base Rate Loans, 0.75%;
(b) with respect to the Revolving Credit Loans, Revolving Credit Commitments and Letter of Credit fees, (i) until receipt by the Administrative Agent of a Compliance Certificate pursuant to Section 6.02(b) with respect to the fiscal quarters ending March 31, 2019 and June 30, 2019 (A) for Eurodollar Rate Loans (used herein as defined in this Agreement prior to giving effect to the Twelfth Amendment) and for EURIBOR Loans, 1.25%, (B) for Base Rate Loans, 0.25%, (C) for Letter of Credit fees, 1.125% and (D) for Revolving Credit Commitment Fees, 0.25% and (ii) thereafter, the following percentages per annum, based upon the Senior Secured Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(b):
| | | | | | | | | | | | | | | | | |
| Applicable Rate |
| Pricing Level | Senior Secured Net Leverage Ratio | EURIBOR, Term SOFR and Daily Simple SONIA | Letter of Credit Fees | Base Rate | Revolving Credit Commitment Fee Rate |
| | | | | |
| 1 | ≥ 1.5:1.0 | 1.50% | 1.375% | 0.50% | 0.25% |
| | | | | |
| 2 | < 1.5:1.0 but ≥ 0.75:1.0 | 1.25% | 1.125% | 0.25% | 0.25% |
| | | | | |
| 3 | < 0.75:1.0 | 1.00% | 0.875% | 0.00% | 0.125% |
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Any increase or decrease in the Applicable Rate set forth in subsection (b) above resulting from a change in the Senior Secured Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(b); provided that at the option of the Administrative Agent or the Required Lenders, pricing level 1 shall apply, (x) as of the first Business Day after the date on which a Compliance Certificate was required to have been delivered but was not delivered, and shall continue to so apply to but excluding the date on which such Compliance Certificate is so delivered (and thereafter the Pricing Level otherwise determined in accordance with this definition shall apply) and (y) as of the first Business Day after an Event of Default shall have occurred and be continuing, and shall continue to so apply to but excluding the date on which such Event of Default is cured or waived (and thereafter the Pricing Level otherwise determined in accordance with this definition shall apply); and
(c) with respect to any Additional Term Loans or Additional Revolving Credit Commitments (other than Fifth Amendment Revolving Commitments), such amounts as may be agreed to by the Borrower, the Administrative Agent and the Additional Term Lenders or Additional Revolving Credit Lenders, as the case may be.
“Appropriate Lender” means, at any time, (a) with respect to Loans of any Class, the Lenders of such Class, (b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued pursuant to Section 2.03(a), the Revolving Credit Lenders and (c) with respect to the Swing Line Facility, (i) the Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant to Section 2.04(a), the Revolving Credit Lenders.
“Approved Domestic Bank” has the meaning specified in clause (b) of the definition of “Cash Equivalents.”
“Approved Foreign Bank” has the meaning specified in clause (f) of the definition of “Cash Equivalents.”
“Approved Fund” means any Fund that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.
“Arrangers” means Morgan Stanley Senior Funding, Inc. and Barclays Bank PLC, each in its capacity as a joint lead arranger and joint bookrunner for the Facilities, and Goldman Sachs Bank USA, BMO Capital Markets (trade name of the Bank of Montreal) and RBC Capital Markets (brand name for Royal Bank of Canada and its affiliates), each in its capacity as a joint bookrunner for the Facilities.
“Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit E.
“Attorney Costs” means and includes all reasonable and documented fees, out-of-pocket expenses and out-of-pocket disbursements of any law firm or other external counsel.
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“Attributable Indebtedness” means, on any date, in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.
“Auction Agent” means (a) the Administrative Agent or (b) any other financial institution or advisor employed by the Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Discounted Loan Prepayment pursuant to Section 2.05(a)(iv); provided that the Borrower shall not designate the Administrative Agent as the Auction Agent without the written consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no obligation to agree to act as the Auction Agent); provided, further, that neither the Borrower nor any of its Affiliates may act as the Auction Agent.
“Auto-Renewal Letter of Credit” has the meaning specified in Section 2.03(b)(iii).
“Available Amount” means, at any time (the “Reference Date”) and, in each case, without duplication, the sum of:
(a) the Initial Amount; plus
(b) Excess Cash Flow Not Otherwise Applied with respect to any fiscal year of the Borrower Parties ending during the period following the Tenth Amendment Effective Date through and including the Reference Date; plus
(c) the amount of any capital contributions or cash and Cash Equivalent proceeds from Equity Issuances (or issuances of debt securities converted or convertible into or exchanged or exchangeable for Qualified Equity Interests) received by the Borrower Parties during the period following the Tenth Amendment Effective Date through and including the Reference Date; plus
(d) the aggregate amount of all cash dividends and other cash distributions received by the Borrower Parties from any Unrestricted Subsidiaries during the period following the Tenth Amendment Effective Date through and including the Reference Date; plus
(e) the aggregate amount of all cash interest, returns of principal, cash repayments and similar payments received by the Borrower Parties from any Unrestricted Subsidiaries during the period following the Tenth Amendment Effective Date through and including the Reference Date in respect of loans or advances made by the Borrower Parties to such Unrestricted Subsidiaries; plus
(f) to the extent not required to be applied to prepay Loans in accordance with Section 2.05(b)(i), the aggregate amount of all cash proceeds received by the Borrower Parties in connection with (x) the sale, transfer or other disposition of its direct or indirect ownership interest (including Equity Interests) in any Unrestricted Subsidiary or (y) the sale, transfer or other disposition of any assets of any Unrestricted Subsidiary, in each case, during the period following the Tenth Amendment Effective Date through and including the Reference Date; plus
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(g) an amount equal to any returns in cash and Cash Equivalents (including dividends, interest, distributions, returns of principal, sale proceeds, repayments, income and similar amounts) actually received by any Borrower Party in respect of any Investments pursuant to Section 7.02; provided, that in no case shall such amount exceed the amount of such Investment made using the Available Amount pursuant to Section 7.02(m), in each case, during the period following the Tenth Amendment Effective Date through and including the Reference Date; plus
(h) the fair market value of any Unrestricted Subsidiaries which are re-designated as Restricted Subsidiaries or merged, liquidated, consolidated or amalgamated into any Borrower Party during the period following the Tenth Amendment Effective Date through and including the Reference Date; minus
(i) the aggregate amount of any Investments made pursuant to Section 7.02, any Restricted Payment made pursuant to Section 7.06 and any prepayments of Permitted Subordinated Indebtedness made pursuant to Section 7.14 during the period following the Tenth Amendment Effective Date and ending on the Reference Date, in each case to the extent funded from the Available Amount.
“Available Tenor” means, as of any date of determination and with respect to the then-current Revolving Credit Facility Benchmark Rate for any currency, as applicable, (x) if such Revolving Credit Facility Benchmark Rate is a term rate, any tenor for such Revolving Credit Facility Benchmark Rate (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Revolving Credit Facility Benchmark Rate (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Revolving Credit Facility Benchmark Rate pursuant to this Agreement, in each case, as of such date.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Base Rate” means a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the highest of:
(i) the rate of interest published by the Wall Street Journal, from time to time, as the “prime rate”;
(ii) ½ of 11.00% per annum above the Federal Funds Rate; and
(iii) in the case of Base Rate Loans that are Term Loans, the Eurodollar Rate for a one-month interest period as determined on such day, plus 1.0%;
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(iv) in the case of Base Rate Loans that are Term Loans, if greater than the rate determined by the Administrative Agent pursuant to the foregoing clauses (i) – (iii), 1.00%; and
(v) in the case of Base Rate Loans that are Revolving Credit Loans, iii) if greater than the rate determined by the Administrative Agent pursuant to the foregoing clauses (i) – (ii), Adjusted Term SOFR for a one-month tenor in effect on such day, plus 11.00%. For the purposes of this clause (viii) only, any change in the Base Rate due to a change in Adjusted Term SOFR shall be effective from and including the effective date of such change in Adjusted Term SOFR.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.
“Base Rate Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.
“Benchmark Rate” has the meaning specified in the definition of “Eurodollar Rate”.
“Benchmark Rate” means, initially, with respect to any (a) Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, 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 Rate for Dollars, then “Benchmark Rate” means, with respect to such Obligations, interest, fees, commissions or other amounts, the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 1.11(a); (b) Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Sterling, Adjusted Daily Simple SONIA, provided that if a Benchmark Transition Event has occurred with respect to such Adjusted Daily Simple SONIA or the then-current Benchmark Rate for such currency, then “Benchmark Rate” means, with respect to such Obligations, interest, fees, commissions or other amounts, the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 1.11(a); and (c) Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Euros, EURIBOR, provided that if a Benchmark Transition Event has occurred with respect to EURIBOR, or the then-current Benchmark Rate for such currency, then “Benchmark Rate” means, with respect to such Obligations, interest, fees, commissions or other amounts, the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 1.11(a).
“Benchmark Replacement” means with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:
(a) for Loans denominated in Dollars, the sum of (i) Daily Simple SOFR and (ii) the Term SOFR Adjustment; or
“Benchmark Replacement” means (b) for Loans denominated in any currency other than Dollars, or if the Administrative Agent is unable to determine Daily Simple SOFR for the purposes of clause (a) above, then the sum of: (ai) the alternate benchmark rate (which may include Term SOFR) that has been selected by the Administrative Agent and the Borrower giving due consideration to (iA) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (iiB)
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any evolving or then-prevailing market convention for determining a benchmark rate of interest as a replacement to the then-current Benchmark Rate for U.S. dollar-denominated syndicated credit facilities denominated in the applicable currency and (bii) the related Benchmark Replacement Adjustment; provided that, if .
If the Benchmark Replacement as so determined pursuant to clause (a) or (b) above would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the Benchmark Rate with an Unadjusted Benchmark Replacement for each applicable Interest Period, 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 Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the Benchmark Rate with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (ii) 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 the Benchmark Rate with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities denominated in the applicable currency at such time.
“Benchmark Replacement Conforming Changes” means, with respect to either the use or administration of an initial Benchmark Rate or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate” (if applicable), the definition of “Business Day,” the definition of “SONIA 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 and other , timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 3.04 and other technical, administrative or operational matters) that the Administrative Agent reasonably decides may be appropriate to reflect the adoption and implementation of any such Benchmark Replacement andrate 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 reasonably determines that no market practice for the administration of the Benchmark Replacementany such rate exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date” means the earlier to occur of the following events with respect to the relevant Benchmark Rate for any relevant currency:
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(1)in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the Benchmark Rate (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide theall Available Tenors of such Benchmark Rate (or such component thereof); or
(2)in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date of the public on which such Benchmark Rate (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark Rate (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 of information referenced thereinin such clause (c) and even if any Available Tenor of such Benchmark Rate (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 (1) or (2) with respect to any Benchmark Rate upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark Rate (or the published component used in the calculation thereof).
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the relevant then-current Benchmark Rate:
(1)a public statement or publication of information by or on behalf of the administrator of thesuch Benchmark Rate (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide theall Available Tenors of such Benchmark Rate (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 theany Available Tenor of such Benchmark Rate (or such component thereof);
(2)a public statement or publication of information by the regulatory supervisor for the administrator of thesuch Benchmark Rate, the U.S. (or the published component used in the calculation thereof), the Federal Reserve SystemBoard, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for thesuch Benchmark Rate (or such component), a resolution authority with jurisdiction over the administrator for thesuch Benchmark Rate (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for thesuch Benchmark Rate (or such component), which states that the administrator of thesuch Benchmark Rate (or such component) has ceased or will cease to provide theall Available Tenors of such Benchmark Rate (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 theany Available Tenor of such Benchmark Rate (or such component thereof); or
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(3)a public statement or publication of information by the regulatory supervisor for the administrator of thesuch Benchmark Rate (or the published component used in the calculation thereof) announcing that theall Available Tenors of such Benchmark Rate is no longer (or such component thereof) are not, or as of a specified future date will not be, representative.
“Benchmark Transition Start Date” means (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) 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 90 days after such statement or publication, the date of such statement or publication) and (b) in the case of an Early Opt-in Election, the date specified by the Administrative Agent or the Required Lenders, as applicable, by notice to the Borrower, the Administrative Agent (in the case of such notice by the Required Lenders) and the Lenders.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark Rate if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark Rate (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to thea Benchmark Rate and solely to the extent that thesuch Benchmark Rate has not been replaced with a Benchmark Replacement, the period (xif any) (a) beginning at the time that sucha Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark Rate for all purposes hereunder and under any Loan Document in accordance with Section 1.11 and (yb) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark Rate for all purposes hereunder pursuant to and under any Loan Document in accordance with Section 1.11.
“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 Internal Revenue Code) the assets of any such “employee benefit plan” or “plan”.
“Bilateral Providers” has the meaning specified in the Domestic Security Agreement.
“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.
“Borrower” means Sensata Technologies, Inc.
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“Borrower Materials” has the meaning specified in Section 6.02.
“Borrower Offer of Specified Discount Prepayment” means the offer by the Borrower to make a voluntary prepayment of Loans at a specified discount to par pursuant to Section 2.05(a)(iv)(B).
“Borrower Parties” means the collective reference to STBV and the Restricted Subsidiaries, and “Borrower Party” means any one of them.
“Borrower Solicitation of Discount Range Prepayment Offers” means the solicitation by the Borrower of offers for, and the corresponding acceptance by a Lender of, a voluntary prepayment of Loans at a specified range of discounts to par pursuant to Section 2.05(a)(iv)(C).
“Borrower Solicitation of Discounted Prepayment Offers” means the solicitation by the Borrower of offers for, and the subsequent acceptance, if any, by a Lender of, a voluntary prepayment of Loans at a discount to par pursuant to Section 2.05(a)(iv)(D).
“Borrowing” means a Revolving Credit Borrowing, a Swing Line Borrowing or a Term Borrowing, as the context may require.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in the state where the Administrative Agent’s Office and the L/C Issuer’s Office are located, and if such day relates to any interest rate settings as to a Eurodollar Rate Loan or provided that:
(i)if such day relates to any interest rate settings as to a Term SOFR Loan, any fundings, disbursements, settlements and payments in Dollars in respect of such Term SOFR Loan, or any other dealing in Dollars to be carried out pursuant to this Agreement in respect of any such Term SOFR Loan, such day described in clause (a) above must also be a U.S. Government Securities Business Day;
(ii)if such day relates to any interest rate settings as to a EURIBOR Loan, any fundings, disbursements, settlements and payments in respect of any such Eurodollar RateEURIBOR Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any such Eurodollar Rate Loan or EURIBOR Loan, means any such day must also be a day on which dealings in deposits in Dollars or Euros, as the case may be, are conducted by and between banks in the London interbank eurodollar or Euro market, as the case may be.; and
(iii)if such day relates to any interest rate setting as to a SONIA Daily Simple Loan denominated in Sterling, any fundings, disbursements, settlements and payments in Sterling, in respect of such SONIA Daily Simple Loan, or any other dealing in Sterling, to be carried out pursuant to this Agreement in respect of any such SONIA Daily Simple Loan, such day described in clause (a) above must also be a SONIA Business Day.
“BV Guaranty” means that Guaranty made by the Original BV Borrower in favor of the Secured Parties, substantially in the form of Exhibit F-3, in respect of the Obligations of the Original US Borrower (in its capacity as a Borrower under the Loan Documents).
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“Capital Expenditures” means, as of any date for the applicable period then ended, all additions to plant, property and equipment and other capital expenditures of the Borrower Parties on a consolidated basis for such period that are required to be set forth in the consolidated statement of cash flows, as determined in accordance with GAAP; provided that Capital Expenditures shall not include any such expenditures which constitute any of the following, without duplication: (a) a Permitted Acquisition, (b) capital expenditures relating to the construction or acquisition of any property which has been transferred to a Person other than a Borrower Party pursuant to a sale-leaseback transaction permitted under Section 7.05(f), (c) to the extent permitted by this Agreement, a reinvestment of the Net Cash Proceeds of any Disposition in accordance with Section 2.05(b)(i) or Casualty Event, (d) expenditures of any capital contributions or cash and cash equivalent proceeds from Equity Issuances (or issuances of debt securities converted or convertible into or exchanged or exchangeable for Qualified Equity Interests) received by any Borrower Party, (e) expenditures of proceeds of insurance settlements, condemnation awards and other settlements in respect of lost, destroyed, damaged or condemned assets, equipment or other property to the extent such expenditures are made or committed to be made to replace or repair such lost, destroyed, damaged or condemned assets, equipment or other property or otherwise to acquire, maintain, develop, construct, improve, upgrade or repair assets or properties useful in the business of the Borrower Parties within 12 months of receipt of such proceeds (and if so committed to be made, made no later than 180 days after the end of such 12-month period), (f) interest capitalized during such period, (g) expenditures that are accounted for as capital expenditures of such Person and that actually are paid for by a third party (excluding any Borrower Party) and for which no Borrower Party has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such third party or any other person (whether before, during or after such period), (h) the book value of any asset owned by such Person prior to or during such period to the extent that such book value is included as a capital expenditure during such period as a result of such Person reusing or beginning to reuse such asset during such period without a corresponding expenditure actually having been made in such period; provided that (i) any expenditure necessary in order to permit such asset to be reused shall be included as a Capital Expenditure during the period that such expenditure actually is made and (ii) such book value shall have been included in Capital Expenditures when such asset was originally acquired, (i) the purchase price of equipment purchased during such period to the extent the consideration therefor consists of any combination of (i) used, worn out, obsolete or surplus equipment traded in at the time of such purchase and (ii) the proceeds of a concurrent sale of used, worn out, obsolete or surplus equipment, in each case, in the ordinary course of business, (j) the purchase price of equipment that is purchased substantially contemporaneously with the trade in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time, (k) any such expenditures which constitute replacement and maintenance programs charged to current results, or (l) any expenditures which are contractually required to be reimbursed to any Borrower Party, in cash, by a third party (including landlords) during such period of calculation.
“Capitalized Leases” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases on a balance sheet of the lessee.
“Cash Collateral” has the meaning specified in Section 2.03(g).
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“Cash Collateral Account” means a deposit account at a commercial bank selected by the Administrative Agent in the name of the Administrative Agent and under the sole dominion and control of the Administrative Agent, and otherwise established in a manner reasonably satisfactory to the Administrative Agent.
“Cash Collateralize” has the meaning specified in Section 2.03(g).
“Cash Equivalents” means any of the following types of Investments, to the extent owned by STBV or any of its Restricted Subsidiaries free and clear of all Liens (other than Liens permitted pursuant to any Loan Document):
(a) readily marketable obligations issued or directly and fully guaranteed or insured by the United States, any state, commonwealth or territory of the United States or any agency or instrumentality thereof, having (i) one of the three highest ratings from either Moody’s or S&P and (ii) maturities of not more than one year from the date of acquisition thereof; provided that the full faith and credit of the United States is pledged in support thereof;
(b) time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) is a Lender or (ii)(A) is organized under the laws of the United States, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof, the District of Columbia or the Commonwealth of Puerto Rico and is a member of the Federal Reserve System and (B) has combined capital and surplus of at least $250,000,000 (any such bank in the foregoing clauses (i) or (ii) being an “Approved Domestic Bank”), in each case with maturities of not more than one year from the date of acquisition thereof;
(c) commercial paper and variable or fixed rate notes issued by an Approved Domestic Bank (or by the parent company thereof) or any variable rate note issued by, or guaranteed by a domestic corporation rated “A-1” (or the equivalent thereof) or better by S&P or “P-1” (or the equivalent thereof) or better by Moody’s, in each case with maturities of not more than one year from the date of acquisition thereof;
(d) repurchase agreements entered into by any Person with a bank or trust company or recognized securities dealer (including any of the Lenders), in each case, having capital and surplus in excess of $250,000,000 for direct obligations issued by or fully guaranteed or insured by the government or any agency or instrumentality of the United States;
(e) Investments, classified in accordance with GAAP as current assets of STBV or any of its Restricted Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions having capital of at least $250,000,000, and the portfolios of which are limited such that 95% of such investments are of the character, quality and maturity described in clauses (a), (b), (c), and (d) of this definition;
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(f) solely with respect to the STBV and any of its Foreign Subsidiaries, Dollar or non-Dollar denominated (i) certificates of deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Person maintains its chief executive office and principal place of business, and whose short-term commercial paper rating from S&P is at least “A-1” or the equivalent thereof or from Moody’s is at least “P-1” or the equivalent thereof (any such bank being an “Approved Foreign Bank”) and maturing within one year of the date of acquisition and (ii) equivalents of demand deposit accounts which are maintained with an Approved Foreign Bank; and
(g) readily marketable obligations issued or directly and fully guaranteed or insured by the government or any agency or instrumentality of the United Kingdom, the Netherlands or any member nation of the European Union whose legal tender is the euro and which are denominated in Pounds Sterling, Euros or any other foreign currency comparable in credit quality and tenor to those referred to above and customarily used by companies for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Restricted Subsidiary organized in such jurisdiction, having (i) one of the three highest ratings from either Moody’s or S&P and (ii) maturities of not more than one year from the date of acquisition thereof; provided that the full faith and credit of the United Kingdom, the Netherlands or any such member nation of the European Union is pledged in support thereof.
“Cash Management Obligations” means obligations owed by the Borrower or any other Subsidiary of STBV to any Lender or any Affiliate of a Lender in respect of any overdraft and related liabilities arising from treasury, depository and cash management services or any automated clearing house transfers of funds or in respect of any credit card or similar services designated by the Borrower as constituting Cash Management Obligations.
“Cash on Hand” means, on any date of determination, the sum of the amount of cash and Cash Equivalents of the Borrower Parties, as set forth on the balance sheet of STBV and its consolidated Subsidiaries (it being understood that such amount shall exclude in any event any cash or Cash Equivalents identified on such balance sheet as “restricted” (other than cash or Cash Equivalents restricted in favor of the Secured Parties)).
“Casualty Event” means any event that gives rise to the receipt by any Borrower Party of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property.
“CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.
“CERCLIS” means the Comprehensive Environmental Response, Compensation, and Liability Information System maintained by the US Environmental Protection Agency.
“Change of Control” means the occurrence of any of the following:
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(a)the sale, lease, transfer or other conveyance, in a single transaction or a series of related transactions, of all or substantially all of the assets of STBV and its Subsidiaries, taken as a whole, to any Person; or
(b)STBV or the Borrower, as applicable, becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), in a single transaction or in a series of related transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Borrower or STBV or any entity of which the Borrower or STBV is a Subsidiary; provided that so long as STBV or the Borrower, as applicable, is a Subsidiary of the Ultimate Parent, no Person or group shall be deemed to be or become a beneficial owner, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of STBV or the Borrower or any entity of which the Borrower or STBV is a Subsidiary, as applicable, unless such Person or group shall be or become, directly or indirectly, a beneficial owner of more than 50% of the total voting power of the Voting Stock of Ultimate Parent.
“Change in Law” shall mean (a) the adoption of any law, treaty, order, policy, rule or regulation after the date of this Agreement, (b) any change in any law, treaty, order, policy, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement, (c) all requests, rules, guidelines, requirements, 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 pursuant to Basel III, in each case regardless of the date enacted, adopted or issued or (d) compliance by a Lender with any guideline, request or directive issued or made after the date hereof by any central bank or other governmental or quasi-governmental authority (whether or not having the force of law). It is understood and agreed that the Dodd–Frank Wall Street Reform and Consumer Protection Act (Pub.L. 111-203, H.R. 4173), all Laws in connection therewith, all guidelines and directives in connection therewith and any compliance by a Lender with any request or directive relating thereto, shall, for the purposes of this Agreement, be deemed to be adopted subsequent to the date hereof.
“Class” (a) when used with respect to Lenders, refers to whether such Lenders are Revolving Credit Lenders, Term Lenders, Additional Revolving Credit Lenders, Additional Term Lenders, Extending Revolving Credit Lenders or Extending Term Lenders, (b) when used with respect to Commitments, refers to whether such Commitments are Revolving Credit Commitments, Term Commitments, Additional Revolving Credit Commitments, Additional Term Commitments or Extended Revolving Credit Commitments and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Revolving Credit Loans, Term Loans, Additional Revolving Credit Loans, Additional Term Loans, Extended Revolving Credit Loans or Extended Term Loans.
“Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 4.01.
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“Closing Date Security Agreements” means, collectively, the Domestic Security Agreement, the Dutch Security Documents, the Intellectual Property Security Agreements and each other Collateral Document executed and delivered pursuant to Section 4.01, each in form and substance reasonably acceptable to the Administrative Agent, to secure the Secured Obligations of each Loan Party under its respective Loan Documents.
“Code” means the US Internal Revenue Code of 1986, as amended.
“Co-Documentation Agents” means Goldman Sachs Bank USA, Bank of Montreal, Royal Bank of Canada, Mizuho Corporate Bank, Ltd., Raymond James Bank, FSB and Crédit Industriel et Commercial, each in its capacity as a co-documentation agent under this Agreement.
“Collateral” means all of the “Collateral” referred to in the Collateral Documents and all of the other property and assets that are or are required under the terms hereof or under the Collateral Documents to be subject to Liens in favor of the Collateral Agent for the benefit of the Secured Parties.
“Collateral Agent” means Morgan Stanley Senior Funding, Inc., in its capacity as collateral agent under any of the Loan Documents, or any successor administrative agent.
“Collateral Documents” means, collectively, the Domestic Security Agreement, each Foreign Security Agreement, each Intellectual Property Security Agreement, the Mortgages, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of the Secured Parties as security for the Secured Obligations, including collateral assignments, Security Agreement Supplements, security agreements, pledge agreements or other similar agreements delivered to the Administrative Agent and the Lenders pursuant to Section 6.12.
“Committed Currency” means, in the case of Dollar Letters of Credit, Dollars, in the case of Euro Letters of Credit, Euros and, in the case of Sterling Letters of Credit, Sterling.
“Commitment” means a Term Commitment or a Revolving Credit Commitment, as the context may require.
“Committed Loan Notice” means a notice of (a) a Term Borrowing, (b) a Revolving Credit Borrowing, (c) a conversion of Loans from one Type to the other (other than a conversion of a Eurodollar RateTerm SOFR Loan to a Base Rate Loan), or (d) a continuation of Eurodollar RateTerm SOFR Loans or EURIBOR Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.
“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.
“Compensation Period” has the meaning specified in Section 2.12(c)(ii).
“Compliance Certificate” means a certificate substantially in the form of Exhibit D.
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“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated Cash Taxes” means, as of any date for the applicable period ending on such date with respect to the Borrower Parties on a consolidated basis, the aggregate of all income, franchise and similar taxes, as determined in accordance with GAAP, to the extent the same are paid or payable in cash with respect to such period.
“Consolidated EBITDA” means, for any period, with respect to any Person and its Subsidiaries on a consolidated basis, the sum of (a) Consolidated Net Income, plus (b) an amount which, in the determination of Consolidated Net Income for such period, has been deducted for, without duplication,
(i) total interest expense and to the extent not reflected in such total interest expense, the costs of surety bonds in connection with any financing activity and any losses on hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk in the ordinary course of business, net of interest income and gains on such hedging obligations,
(ii) income, withholding, franchise and similar taxes and any tax distributions made pursuant to Section 7.06(e)(i) and Section 7.06(e)(iii) and foreign withholding taxes paid or accrued during such period,
(iii) total depreciation and amortization expense (including non-cash amortization of debt discount or deferred financing costs),
(iv) letter of credit fees,
(v) fees (including Securitization Fees), costs and expenses incurred in connection with the Transactions or the Eleventh Amendment or, to the extent permitted hereunder, any Investment permitted under Section 7.02, Disposition permitted under Section 7.05, Equity Issuance, Debt Issuance, recapitalization or reorganization (in each case, whether or not consummated) and any synergies, cost savings and business optimization expense savings as certified by any Responsible Officer of the Borrower as having been realized or determined in good faith to be reasonably anticipated to be realizable within 24 months following such transaction,
(vi) to the extent actually reimbursed or reimbursable, expenses incurred to the extent covered by indemnification provisions in any agreement in connection with the Transactions or a Permitted Acquisition,
(vii) to the extent covered by insurance under which the insurer has been properly notified and has not denied or contested coverage, expenses with respect to liability or casualty events or business interruption,
(viii) [intentionally omitted],
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(ix) any non-cash purchase accounting adjustment and any step-ups with respect to re-valuing assets and liabilities in connection with the Transactions or any Investment permitted under Section 7.02,
(x) non-cash losses from Joint Ventures and non-cash minority interest reductions,
(xi) fees and expenses in connection with exchanges or refinancings or payments permitted by Section 7.14,
(xii) (A) non-recurring charges with respect to compensation changes, stay bonuses paid to existing management, employee severance, relocation costs and curtailments or modifications to pension or post-retirement employee benefit plans, (B) (x) extraordinary, unusual or non-recurring cash charges and (C) cash charges paid in connection with litigation related to product liability for (x) the matters listed on Schedule 5.06 and (y) any other such litigation matters in an aggregate amount not to exceed $10,000,000 in any fiscal year,
(xiii) [intentionally omitted],
(xiv) all other non-cash charges, losses or expenses,
(xv) expenses and indemnities paid to directors;
minus
(x) an amount which, in the determination of Consolidated Net Income for such period, has been included for non-cash income during such period (other than with respect to cash actually received), minus
(y) all cash payments made during such period on account of non-cash charges added to Consolidated Net Income pursuant to clause (b)(xiv) above in such period or in a previous period (other than to the extent the amount thereof is within the add-back provided for in clause (b)(xii)(B)), plus/minus
(z) unrealized losses/gains in respect of Swap Contracts (including, for purposes of this clause (f), any “Swap Contracts” under the Existing Credit Agreement that remain in effect after the Closing Date) and other embedded derivatives or similar contracts incurred in the ordinary course of business that require the same accounting treatment as Swap Contracts,
provided, there shall be excluded in determining Consolidated EBITDA currency translation gains or losses related to currency remeasurements of Indebtedness (including the net loss or gain resulting from Swap Contracts entered into to hedge against currency exchange risk in the ordinary course of business), all as determined in accordance with GAAP.
“Consolidated Funded Indebtedness” means, with respect to any Person and its Subsidiaries on a consolidated basis, without duplication,
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(a) all obligations of such Person for borrowed money,
(b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments,
(c) all obligations of such Person issued or assumed as the deferred purchase price of property or services purchased by such Person (other than accrued expenses and trade debt incurred in the ordinary course of business) which would appear in the liabilities section of the balance sheet of such Person,
(d) all Consolidated Funded Indebtedness of others secured by any Lien on property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed,
(e) all Guarantees of such Person with respect to Consolidated Funded Indebtedness of another Person,
(f) the implied principal component of all obligations of such Person under Capitalized Leases,
(g) all drafts drawn (to the extent unreimbursed) under standby letters of credit issued or bankers’ acceptances facilities created for the account of such Person,
(h) unless the holder thereof is a Loan Party or, if the issuer thereof is a Subsidiary of STBV which is not a Loan Party, any other Subsidiary of STBV, all Disqualified Equity Interests convertible into Indebtedness and issued by such Person from and after the date on which they are so converted, and
(i) the Consolidated Funded Indebtedness of any partnership or unincorporated joint venture in which such Person is a general partner or a joint venturer to the extent such Consolidated Funded Indebtedness is recourse to such Person.
Notwithstanding any other provision of this Agreement to the contrary, (i) the term “Consolidated Funded Indebtedness” shall not be deemed to include (A) any earn-out obligation until such obligation appears in the liabilities section of the balance sheet of the applicable Person, (B) any earn-out obligation that appears in the liabilities section of the balance sheet of the applicable Person to the extent (1) such Person is indemnified for the payment thereof by a solvent Person reasonably acceptable to the Administrative Agent or (2) amounts to be applied to the payment thereof are in escrow, (C) any deferred compensation arrangements or employee equity plan related to which there is a liability on the balance sheet or (D) any non-compete or consulting obligations incurred in connection with Permitted Acquisitions and (ii) the amount of Consolidated Funded Indebtedness for which recourse is limited either to a specified amount or to an identified asset of such Person shall be deemed to be equal to such specified amount or the fair market value of such identified asset as determined by such Person in good faith, as the case may be. For all purposes hereof, the Consolidated Funded Indebtedness of any Person shall not include any obligations under or in respect of Securitization Financings.
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“Consolidated Interest Charges” means, for any period, with respect to any Person and its Subsidiaries on a consolidated basis, the amount by which (i) the sum of interest expense for such period (including the interest component under Capitalized Leases, but excluding, to the extent included in interest expense, (t) Securitization Fees, (u) fees and expenses associated with the consummation of the Transactions or the Eleventh Amendment, (v) annual agency fees paid to the Administrative Agent, (w) costs associated with obtaining Swap Contracts, (x) fees and expenses associated with any Investment permitted under Section 7.02, Equity Issuance or Debt Issuance (whether or not consummated), (y) pay-in-kind interest expense or other noncash interest expense (including as a result of the effects of purchase accounting) and (z) amortization or write-down of any deferred financing fees) exceeds (ii) interest income for such period, in each case as determined in accordance with GAAP, to the extent the same are paid or payable (or received or receivable) in cash with respect to such period.
“Consolidated Net Income” means, for any period, with respect to any Person and its Subsidiaries on a consolidated basis, net income as determined in accordance with GAAP; provided that Consolidated Net Income for any such period shall exclude, without duplication, (i) any net after-tax extraordinary, unusual or non-recurring gains, losses or charges (including severance, relocation, transition and other restructuring costs and litigation settlements or losses), (ii) the cumulative effect of a change in accounting principle(s) during such period, (iii) any net after-tax gains or losses realized upon the disposition of assets outside the ordinary course of business (including any gain or loss realized upon the sale or other disposition of any Equity Interests of any Person), (iv) (A) the income of (1) any Subsidiary (other than a Loan Party) to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of that income is not at the time permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, statute, rule or governmental regulation applicable to such Subsidiary or its stockholders (which has not been legally waived) and (2) any Joint Venture and any Unrestricted Subsidiary, except in each case to the extent of the amount of dividends or other distributions actually paid in cash to such Person or one of its Subsidiaries by such Subsidiary, Joint Venture or Unrestricted Subsidiary during such period and (B) the income or loss of any Person accrued prior to the date it becomes a Subsidiary of such Person or is merged into or consolidated with such Person or any Subsidiary of such Person or the date that such other Person’s assets are acquired by such Person or any Subsidiary of such Person, (v) non-cash compensation charges, including any such charges arising from stock options, restricted stock grants or other equity-incentive programs, (vi) any net after-tax income or loss (less all fees and expenses or charges relating thereto) attributable to the early extinguishment of Indebtedness, (vii) the effect of any non-cash items resulting from any amortization, write-up, write-down or write-off of assets (including intangible assets, goodwill and deferred financing costs) in connection with the Transactions, any Investment permitted under Section 7.02, any Permitted Acquisition or any merger, consolidation or similar transaction not prohibited by this Agreement (other than any such non-cash item to the extent that it represents an accrual of or reserve for cash expenditures in any future period except to the extent such item is subsequently reversed) and (viii) any reductions in respect of dividends on, or accretion of, preferred Equity Interests; and provided further that Consolidated Net Income for any such period shall be decreased by the amount of any equity of STBV in a net loss of any Person for such period to the extent STBV has funded such net loss.
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“Consolidated Scheduled Funded Debt Payments” means, as of any date for the applicable period ending on such date with respect to the Borrower Parties on a consolidated basis, the sum of all scheduled payments of principal on Consolidated Funded Indebtedness made during such period (including the implied principal component of payments made on Capitalized Leases during such period) as determined in accordance with GAAP.
“Consolidated Total Assets” means, as of any date of determination, the amount that would, in conformity with GAAP, be set forth opposite the caption “total assets” (or any like caption) on the most recent financial statements delivered pursuant to Section 6.01(a).
“Continuing Directors” shall mean the directors (or managers) of the Ultimate Parent on the Tenth Amendment Effective Date, and each other director (or manager), if, in each case, such other directors’ (or managers’) nomination for election to the board of directors (or board of managers) of the Ultimate Parent is either approved or ratified prior to such election by a majority of the then Continuing Directors.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control” has the meaning specified in the definition of “Affiliate.”
“Controls Business” means the assets and operations of STBV and its Restricted Subsidiaries related to the manufacture, marketing or sale of controls.
“Covered Entity” means 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); (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).
“Covered Party” has the meaning specified in Section 10.28.
“Credit Agreement Refinancing Indebtedness” means any (a) Permitted Pari Passu Secured Refinancing Debt, (b) Permitted Junior Secured Refinancing Debt or (c) Permitted Unsecured Refinancing Debt incurred pursuant to a Refinancing Amendment, in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace or refinance, in whole or part, existing Loans or Commitments (including any successive Credit Agreement Refinancing Indebtedness, any Other Loans and Other Commitments, any Additional Revolving Credit Commitments, Additional Revolving Credit Loans, Additional Term Commitments and Additional Term Loans and any Loans and Commitments which have been extended pursuant to Section 2.18) (“Refinanced Debt”); provided that (i) such exchanging, extending, renewing, replacing or refinancing Indebtedness is in an original aggregate principal amount not greater than the aggregate principal amount of the Refinanced Debt except by an amount equal to (x) interest (including interest paid-in-kind or otherwise compounding the principal amount of such Indebtedness) and premium (including tender premium) plus (y) upfront fees and OID plus (z) other fees and expenses or other amounts paid, in each case with respect to such exchanging, extending, renewing, replacing or refinancing Indebtedness, (ii) such Indebtedness has a maturity equal to or later than, and a Weighted Average Life to Maturity equal to or greater than, the Refinanced Debt at the time of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as the result of prepayment of any applicable
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Indebtedness), (iii) the material terms (taken as a whole) of such refinancing, refunding, extending, renewing or replacing Indebtedness contains covenants and events of default which, taken as a whole, are determined in good faith by a Responsible Officer of the Borrower to be consistent with the then-current market for similar issuances of Indebtedness, and (iv) such Refinanced Debt (other than any contingent obligations not then due and owing) shall be repaid, defeased or satisfied and discharged, and all accrued interest, fees and premiums (if any) in connection therewith shall be paid, on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained.
“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“Current Assets” means, at any time, the consolidated current assets (other than cash, deferred income taxes and Cash Equivalents) of the Borrower Parties.
“Current Liabilities” means, at any time, the consolidated current liabilities of the Borrower Parties at such time, but excluding, without duplication, (a) the current portion of any long-term Indebtedness and (b) outstanding Revolving Credit Loans, Swing Line Loans and L/C Obligations, (c) deferred income taxes and (d) any liability in respect of net obligations of such Person in respect of Swap Contracts related solely to interest rate protection entered into in the ordinary course of business.
“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.
“Daily Simple SONIA” means, for any day (a “SONIA Interest Day”) a rate per annum equal to, for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to Sterling, the greater of (i) SONIA for the day (such day, a “Daily Simple SONIA Determination Day”) that is five (5) SONIA Business Days prior to (A) if such SONIA Interest Day is a SONIA Business Day, such SONIA Interest Day or (B) if such SONIA Interest Day is not a SONIA Business Day, the SONIA Business Day immediately preceding such SONIA Interest Day, in each case, as such SONIA is published by the SONIA Administrator on the SONIA Administrator’s Website; provided that if by 5:00 p.m. (London time) on the second (2nd) SONIA Business Day immediately following any Daily Simple SONIA Determination Day, SONIA in respect of such Daily Simple SONIA Determination Day has not been published on the SONIA Administrator’s Website and a Revolving Credit Facility Benchmark Replacement Date with respect to Daily Simple SONIA has not occurred, then SONIA for such Daily Simple SONIA Determination Day will be SONIA as published in respect of the first preceding SONIA Business Day for which such SONIA was published on the SONIA Administrator’s Website; provided further that SONIA as determined pursuant to this proviso shall be utilized for purposes of calculation of Daily Simple SONIA for no more than three (3) consecutive SONIA Interest Days and (ii) the Floor.
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“Daily Simple SONIA Determination Day” has the meaning specified in the definition of “Daily Simple SONIA”.
“Debt Issuance” means the issuance by any Person and its Subsidiaries of any Indebtedness for borrowed money.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, general assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Declining Lender” has the meaning specified in Section 2.05(b)(viii).
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the lapse of grace period, or both, would be an Event of Default.
“Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate applicable to Base Rate Loans plus (c) 2.0% per annum; provided that with respect to a Eurodollar RateRFR Loan or a EURIBOR Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2.0% per annum, in each case, to the fullest extent permitted by applicable Laws, and if there is no applicable interest rate, then at the rate applicable to the Term Loans bearing interest at the Base Rate plus the Applicable Rate applicable to Base Rate Loans plus 2.0% per annum.
“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.
“Defaulting Lender” means any Lender that (a) has failed to fund any portion of the Term Loans, Revolving Credit Loans, participations in L/C Obligations or participations in Swing Line Loans required to be funded by it hereunder within two (2) Business Days of the date required to be funded by it hereunder, unless the subject of a good faith dispute (or a good faith dispute that is subsequently cured), (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 (2) Business Days of the date when due, unless the subject of a good faith dispute (or a good faith dispute that is subsequently cured), (c) has notified the Borrower or any other Loan Party in writing that it does not intend or expect to comply with any of its funding obligations under this Agreement, (d) has failed, within two (2) Business Days after request by the Borrower or any other Loan Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations to fund prospective Loans and participations in then outstanding Letters of Credit and Swing Line Loans under this Agreement, (e) has been adjudicated by a Governmental Authority with regulatory authority over such Person to be insolvent or become the subject of a bankruptcy or insolvency proceeding or (f) has become subject of a Bail-in Action.”
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“Delaware Divided LLC” means any Delaware LLC which has been formed upon consummation of a Delaware LLC Division.
“Delaware LLC” means any limited liability company organized or formed under the laws of the State of Delaware.
“Delaware LLC Division” means the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act.
“Designated Non-Cash Consideration” means the fair market value of non-cash consideration received by STBV or any Restricted Subsidiary in connection with a Disposition pursuant to Section 7.05(f), (k) or (o) that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower, setting forth the basis of such valuation.
“Disclosed Litigation” has the meaning specified in Section 5.06.
“Discount Prepayment Accepting Lender” has the meaning specified in Section 2.05(a)(iv)(B)(2).
“Discount Range” has the meaning specified in Section 2.05(a)(iv)(C)(1).
“Discount Range Prepayment Amount” has the meaning specified in Section 2.05(a)(iv)(C)(1).
“Discount Range Prepayment Notice” means a written notice of the Borrower Solicitation of Discount Range Prepayment Offers made pursuant to Section 2.05(a)(iv)(C) substantially in the form of Exhibit J.
“Discount Range Prepayment Offer” means the irrevocable written offer by a Lender, substantially in the form of Exhibit K, submitted in response to an invitation to submit offers following the Auction Agent’s receipt of a Discount Range Prepayment Notice.
“Discount Range Prepayment Response Date” has the meaning specified in Section 2.05(a)(iv)(C)(1).
“Discount Range Proration” has the meaning specified in Section 2.05(a)(iv)(C)(3).
“Discounted Loan Prepayment” has the meaning specified in Section 2.05(a)(iv)(A).
“Discounted Prepayment Determination Date” has the meaning specified in Section 2.05(a)(iv)(D)(3).
“Discounted Prepayment Effective Date” means in the case of any Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offer or Borrower Solicitation of Discounted Prepayment Offer, five (5) Business Days following the respective Specified Discount Prepayment Response Date, Discount Range Prepayment Response Date or Solicited Discounted Prepayment Response Date, as applicable, in accordance with Section 2.05(a)(iv)(B), Section 2.05(a)(iv)(C) or Section 2.05(a)(iv)(D), respectively, unless
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a different period is agreed to between the Borrower and the Auction Agent acting in their reasonable discretion.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition of any property by any Person (including any sale and leaseback transaction and any sale of Equity Interests, but excluding any issuance by such Person of its own Equity Interests), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“Disqualified Equity Interests” means any Equity Interest which, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, (b) is redeemable at the option of the holder thereof, in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case of clauses (a) through (d) above, prior to the date that is ninety-one (91) days after the Maturity Date of the Term Loan Facility.
“Dollar” and “$” mean lawful money of the United States.
“Dollar Amount” means, at any time:
(a) with respect to any Loan denominated in Dollars (including, with respect to any Swing Line Loan, any funded participation therein), the principal amount thereof then outstanding (or in which such participation is held);
(b) with respect to any Euro Loan or Sterling Revolving Credit Loan, the principal amount thereof then outstanding in Euros or Sterling, as applicable, converted to Dollars in accordance with Section 1.08 and Section 2.16(a); and
(c) with respect to any L/C Obligation (or any risk participation therein), (A) if denominated in Dollars, the amount thereof and (B) if denominated in Euros or Sterling, the amount thereof converted to Dollars in accordance with Section 1.08 and Section 2.16(a).
“Dollar Letter of Credit” means a Letter of Credit denominated in Dollars.
“Dollar Revolving Credit Borrowing” means a borrowing consisting of simultaneous Dollar Revolving Credit Loans of the same Type and having the same Interest Period made by each of the Revolving Credit Lenders pursuant to Section 2.01(b).
“Dollar Revolving Credit Commitment” means, as to each Dollar Revolving Credit Lender, its obligation to (a) make Dollar Revolving Credit Loans to the Borrower pursuant to Section 2.01(b), (b) purchase participations in L/C Obligations in respect of Dollar Letters of Credit and (c) purchase participations in Swing Line Loans, in an aggregate amount at any one time outstanding not to exceed the amount set forth, and opposite such Lender’s name on Schedule 2.01 under the caption “Dollar Revolving Credit Commitment” or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders shall be
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$750,000,000 on the Eleventh Amendment Effective Date, as such amount may be adjusted from time to time in accordance with the terms of this Agreement.
“Dollar Revolving Credit Exposure” means, as to each Revolving Credit Lender, the sum of the outstanding principal amount of such Revolving Credit Lender’s Dollar Revolving Credit Loans and its Pro Rata Share of the L/C Obligations and the Swing Line Obligations at such time.
“Dollar Revolving Credit Lender” means, at any time, any Lender that has a Dollar Revolving Credit Commitment at such time.
“Dollar Revolving Credit Loan” has the meaning specified in Section 2.01(b).
“Domestic Guarantors” means, collectively, (i) the Domestic Subsidiaries listed as such on Schedule I, as such schedule is amended pursuant to the Eleventh Amendment, that, as of the Eleventh Amendment Effective Date, Guaranteed the Obligations of the Borrower pursuant to the Domestic Guaranty and (ii) each other Restricted Subsidiary of STBV that is a Domestic Subsidiary that shall be required to become a Domestic Guarantor pursuant to Section 6.12; the “Domestic Guarantors” shall not include any Domestic Subsidiary from time to time released as a Domestic Guarantor pursuant to the Loan Documents.
“Domestic Guaranty” means the Domestic Guaranty made by the Domestic Guarantors in favor of the Secured Parties, substantially in the form of Exhibit F-1, as amended pursuant to the Tenth Amendment, together with each other guaranty and guaranty supplement of any Domestic Subsidiary of STBV in respect of the Obligations of the Borrower delivered pursuant to Section 6.12.
“Domestic Security Agreement” means the Domestic Security Agreement among the Original US Borrower, the Domestic Guarantors, the Additional Grantors named therein and the Administrative Agent, dated as of the Closing Date and substantially in the form of Exhibit G, as amended pursuant to the Tenth Amendment, together with each related security agreement supplement executed and delivered pursuant to Section 6.12.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia.
“Dutch Security Documents” means, collectively, the Collateral Documents set forth on Schedule III (as modified pursuant to the Eleventh Amendment and as such schedule may be modified from time to time at the sole and reasonable discretion of the Administrative Agent to reflect changes mutually agreed to between the Borrower and the Administrative Agent) and each Security Agreement executed and delivered pursuant to Section 4.01, Section 6.12 and Section 6.14, each in form and substance reasonably acceptable to the Administrative Agent, to secure the Obligations of the Loan Parties under this Agreement and the other Loan Documents.
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“Early Opt-in Election” means the occurrence of:
(1) (i) a determination by the Administrative Agent or (ii) a notification by the Required Lenders to the Administrative Agent (with a copy to the Borrower) that the Required Lenders have determined that U.S. dollar-denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in Section 1.11, are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace the Benchmark Rate, and
(2) (i) the election by the Administrative Agent or (ii) the election by the Required Lenders to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrower and the Lenders or by the Required Lenders of written notice of such election to the Administrative Agent.
“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.
“Eighth Amendment” means that certain Amendment No. 8 to Credit Agreement, dated as of November 7, 2017, among the Original BV Borrower, the Original US Borrower, the Parent, Morgan Stanley Senior Funding, Inc., as administrative agent, Morgan Stanley Senior Funding, Inc., as sole lead arranger and bookrunner, and certain Lenders party thereto.
“Eighth Amendment Effective Date” means the date on which all of the conditions contained in Section 3 of the Eighth Amendment have been satisfied or waived by the Administrative Agent.
“Eleventh Amendment” means that certain Amendment No. 11 to Credit Agreement, dated as of June 23, 2022, among the Borrower, the Parent, the other Guarantors party thereto, Morgan Stanley Senior Funding, Inc., as the Administrative Agent, the L/C Issuer and the Swing Line Lender, and the Revolving Credit Lenders party thereto.
“Eleventh Amendment Effective Date” means the date on which all of the conditions contained in Section 5 of the Eleventh Amendment have been satisfied or waived by the Administrative Agent.
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“Eleventh Amendment Revolving Commitments” has the meaning given in the recitals to the Eleventh Amendment.
“Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person (other than a natural person) approved by (i) the Administrative Agent, (ii) in the case of any assignment of a Revolving Credit Commitment, the L/C Issuer and the Swing Line Lender, and (iii) unless an Event of Default has occurred and is continuing under Section 8.01(a), Section 8.01(f) or Section 8.01(g)(i), the Borrower (each such approval not to be unreasonably withheld or delayed).
“Eligible Equity Proceeds” means the Net Cash Proceeds received by the Ultimate Parent from any sale or issuance of any Equity Interests (other than Disqualified Equity Interests) of the Ultimate Parent to the extent such Net Cash Proceeds are directly or indirectly contributed to, and actually received by, STBV (or, if only a portion thereof is so contributed and received, to the extent of such portion).
“Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA (whether or not subject to ERISA) which is sponsored, maintained or contributed to by, or required to be contributed by, the Company, any of its subsidiaries or its ERISA Affiliates and is subject to Section 401(a) of the Code.
“Environmental Laws” means any and all applicable Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, legally-binding agreements or governmental restrictions relating to pollution, the protection of the environment or the management, disposal or release of any hazardous materials, substances or wastes into the environment, including those related to air emissions and discharges to waste or public systems.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries arising from, resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.
“Equity Interests” means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities).
“Equity Issuance” means any issuance for cash by any Person and its Subsidiaries to any other Person of (a) its Equity Interests, (b) any of its Equity Interests pursuant to the exercise of options or warrants, (c) any of its Equity Interests pursuant to the conversion of any debt securities to equity or (d) any options or warrants relating to its Equity Interests. A Disposition shall not be deemed to be an Equity Issuance.
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“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is, or is expected to be, in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any material liability under Title IV of ERISA, other than for PBGC premiums not yet due or premiums due but not yet delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.
“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.
“Euro” or “€” means the single currency of Participating Member States of the European Union.
“Euro Letter of Credit” means a Letter of Credit denominated in Euros.
“Euro Loan” means a Loan that is a EURIBOR Loan and that is made in Euros pursuant to the applicable Committed Loan Notice.
“Euro Revolving Credit Borrowing” means a borrowing consisting of simultaneous Euro Revolving Credit Loans of the same type and having the same Interest Period made by each of the Euro Revolving Credit Lenders pursuant to Section 2.01(b).
“Euro Revolving Credit Commitment” means, as to each Euro Revolving Credit Lender, its obligation to (a) make Revolving Credit Loans to the Borrower pursuant to Section 2.01(b), (b) purchase participations in L/C Obligations and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth, opposite such Lender’s name on Schedule 2.01 under the caption “Euro Revolving Credit Commitment” or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate Dollar Amount of Euro Revolving Credit Commitments of all Euro Revolving Credit Lenders shall be $750,000,000 on the Eleventh Amendment Effective Date, as such amount may be adjusted from time to time in accordance with the terms of this Agreement.
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“Euro Revolving Credit Exposure” means, as to each Euro Revolving Credit Lender, the sum of the outstanding principal amount of such Euro Revolving Credit Lender’s Euro Revolving Credit Loans and its Pro Rata Share of the L/C Obligations at such time.
“Euro Revolving Credit Facility” means, at any time, the aggregate Dollar Amount of the Euro Revolving Credit Commitments at such time. The Euro Revolving Credit Facility is part of, not in addition to, the Revolving Credit Facility.
“Euro Revolving Credit Loan” has the meaning specified in Section 2.01(b).
“Euro Revolving Credit Lender” means, at any time, any Lender that has a Euro Revolving Credit Commitment at such time.
“Euro Sublimit” means an amount equal to the lesser of (a) $750,000,000 and (b) the aggregate Dollar Amount of the Euro Revolving Credit Commitments. The Euro Sublimit is part of, not in addition to, the Revolving Credit Facility.
“EURIBOR” means, in relation to any Interest Period commencing on the Closing Date:
(i) the rate per annum equal to the Euro Interbank Offered Rate as administered by the European Money Markets Institute (or any other Person that takes over the administration of such rate) for a period comparable in length to such Interest Period (the “EURIBOR Rate”); or
(ii) (if no EURIBOR Rate is available for such Interest Period) the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Administrative Agent at its request quoted by the Reference Banks to leading banks in the European Interbank Market,
as of 11.00 A.M. (Central European time) on the Rate Fixing Day for the offering of deposits in Euro for a period comparable to such Interest Period, or, in the case of the foregoing clause (i) only, two TARGET Days prior to the commencement of such Interest Period.
“EURIBOR Borrowing” means, as to any Revolving Credit Borrowing, the EURIBOR Loans comprising such Borrowing.
“EURIBOR Loan” means a Loan that bears interest by reference to EURIBOR.
“EURIBOR Rate” has the meaning specified in clause (i) of the definition of EURIBOR.
“Eurodollar Rate” means, for any Interest Period with respect to any Eurodollar Rate Loan:
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(a) the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate by reference to a page or other service that displays an average British Bankers Association Interest Settlement Rate for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period (such rate, the “Benchmark Rate”), determined as of approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period,
(b) if the rate referenced in the preceding clause (a) is not available, the rate per annum determined by the Administrative Agent as the rate of interest at which deposits in Dollars for delivery on the first day of such Interest Period in immediately available funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by the Administrative Agent and with a term equivalent to such Interest Period would be offered by the Administrative Agent’s London Branch to major banks in the London interbank eurodollar market at their request at approximately 4:00 p.m. (London time) two (2) Business Days prior to the first day of such Interest Period, or
(c) in the case of Eurodollar Rate Loans that are Term Loans, if greater than the rate determined by the Administrative Agent pursuant to the foregoing clauses (a) and (b), 0.00%.
“Eurodollar Rate Loan” means a Loan, other than a Revolving Credit Loan, denominated in Dollars or Sterling that bears interest at a rate based on the Eurodollar Rate.
“Event of Default” has the meaning specified in Section 8.01.
“Excess Cash Flow” means, with respect to any fiscal year of the Borrower Parties on a consolidated basis, an amount equal to (a) Consolidated EBITDA of the Borrower Parties for such period minus (b) without duplication,
(i) Capital Expenditures made in cash to the extent not financed with the proceeds of long-term Indebtedness, Equity Issuances or other proceeds of a financing transaction that would not be included in Consolidated EBITDA,
(ii) Consolidated Interest Charges,
(iii) Consolidated Cash Taxes paid, including cash payments for Federal, state and other income tax liabilities incurred prior to the Closing Date,
(iv) Consolidated Scheduled Funded Debt Payments,
(v) Restricted Payments made by the Borrower Parties to the extent that such Restricted Payments are permitted to be made hereunder,
(vi) the aggregate principal amount of any long-term Indebtedness voluntarily prepaid (other than (A) prepayments of long-term Indebtedness financed by incurring other long-term Indebtedness, (B) prepayments of Term Loans pursuant to Section 2.05(a) and (C) prepayments of Revolving Credit Loans pursuant to Section 2.05(a)); provided that (1) such prepayments are otherwise permitted hereunder and (2) if such Indebtedness consists of a revolving line of credit, the commitments under such line of credit are permanently reduced by the amount of such prepayment,
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(vii) letter of credit fees and annual agency fees,
(viii) proceeds received by the Borrower Parties from insurance claims with respect to casualty events, business interruption or product recalls which reimburse prior business expenses to the extent such expenses were added to Consolidated Net Income in determining Consolidated EBITDA,
(ix) all extraordinary, unusual or non-recurring cash charges,
(x) cash payments made in satisfaction of non-current liabilities (other than Indebtedness),
(xi) (x) cash fees, costs and expenses incurred in connection with the Transactions (as defined herein on the Closing Date) or the Eleventh Amendment and not paid with the proceeds of the Loans or the Senior Notes (as defined herein on the Closing Date), or, to the extent permitted hereunder, any Investment permitted under Section 7.02, Disposition permitted under Section 7.05, Equity Issuance or Debt Issuance (whether or not consummated) and not paid with the proceeds of any financing transaction, (y) Securitization Fees and (z) any synergies, cost savings and business optimization expense savings added in the determination of Consolidated EBITDA pursuant to clause (v) of the definition thereof,
(xii) fees and expenses in connection with the exchanges or refinancings or payments permitted by Section 7.14,
(xiii) to the extent added to Consolidated Net Income in determining Consolidated EBITDA, cash indemnity payments received pursuant to indemnification provisions in any agreement in connection with any Permitted Acquisition or any other Investment permitted hereunder (or in any similar agreement related to any other acquisition consummated prior to the Closing Date),
(xiv) [reserved],
(xv) cash expenses incurred in connection with deferred compensation arrangements in connection with any Permitted Acquisition or any other Investment Permitted hereunder,
(xvi) cash used to consummate a Permitted Acquisition or any other Investment permitted hereunder to the extent not financed with the proceeds of long-term Indebtedness, Equity Issuances or other proceeds from a financing transaction that would not be included in Consolidated EBITDA,
(xvii) to the extent added to Consolidated Net Income in determining Consolidated EBITDA, losses from discontinued operations for such period,
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(xviii) to the extent added to Consolidated Net Income in determining Consolidated EBITDA, Eligible Equity Proceeds,
(xix) cash expenditures made in respect of Swap Contracts to the extent not reflected in the computation of Consolidated EBITDA or Consolidated Interest Charges, and
(xx) to the extent not deducted in the computation of Net Cash Proceeds in respect of any asset disposition or condemnation giving rise thereto, the amount of any mandatory prepayment of Indebtedness (other than mandatory prepayments of Term Loans pursuant to Section 2,05(b)(i)), together with any interest, premium or penalties required to be paid (and actually paid) in connection therewith (in the case of this clause (b)(xx) and the foregoing clauses (b)(i) through (xix), to the extent made, paid, incurred or for, as the case may be, such fiscal year),
(b) minus increases in working capital for such fiscal year (i.e., the increase, if any, in Current Assets minus Current Liabilities from the beginning to the end of such fiscal year) or plus decreases in working capital for such fiscal year (i.e., the decrease, if any, in Current Assets minus Current Liabilities from the beginning to the end of such fiscal year), excluding changes in working capital resulting from any Permitted Acquisition or Disposition permitted hereunder.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the U.S. Securities and Exchange Commission promulgated thereunder.
“Exchange Rate” means on any day with respect to any currency other than Dollars, the rate at which such currency may be exchanged into Dollars, as set forth at approximately 11:00 a.m. (London time) on such day on the Reuters World Currency Page for such currency; in the event that such rate does not appear on any Reuters World Currency Page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent and the Borrower, or, in the absence of such agreement, the Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency exchange operations in respect of such currency are then being conducted, at or about 10:00 a.m. (New York City time) on such date for the purchase of Dollars for delivery two Business Days later.
“Excluded Subsidiary” means (a) any Subsidiary to the extent that such Subsidiary is prohibited by applicable local Laws from taking any action set forth under Section 6.12(a), (b) any Subsidiary organized under the laws of the People’s Republic of China, (c) Schrader Electronics Limited so long as it does not guarantee or otherwise provide credit support for any Indebtedness in excess of the Threshold Amount of any other Person, or (d) any Securitization Subsidiary.
“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee 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 Guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a
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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 Guarantee or security interest is or becomes illegal.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Lender or required to be withheld or deducted from a payment to a Lender, (a) Taxes, on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, and any Taxes similar to any of the foregoing, (i) imposed as a result of such Lender being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 3.04(e)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.01, amounts with respect to such Taxes were payable either to such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Lender’s failure to comply with Section 10.15, (d) any withholding Taxes imposed under FATCA, (e) Taxes payable by such recipient or any of their respective Affiliates on the basis of or in relation to some or all of its assets, its balance sheet or capital base or equity or any part of it or its liabilities or minimum regulatory capital or any combination thereof, including the Dutch bank levy (bankenbelasting) as set out in the Dutch Bank Levy Act (Wet bankenbelasting) and any Tax in any jurisdiction levied on a similar basis or for a similar purpose or any financial activities Taxes (or other Taxes) of a kind contemplated in the European Commission consultation paper on financial sector taxation dated 22 February 2011, or any payment attributable to, or liability arising as a consequence of, such Tax, or (f) Taxes imposed by the Netherlands as a result of such recipient having a substantial interest (aanmerkelijk belang) as laid down in the Dutch Income Tax Act 2001 (Wet inkomstenbelasting 2001) in any Loan Party.
“Existing Credit Agreement” means that certain credit agreement dated as of April 27, 2006 among the Original BV Borrower, the Original US Borrower, the Parent, the lenders party thereto and Morgan Stanley Senior Funding, Inc. as administrative agent.
“Existing Indebtedness” means Indebtedness existing on the Closing Date.
“Existing Letters of Credit” means all “Letters of Credit” under the Existing Credit Agreement issued and outstanding immediately prior to the effectiveness of this Agreement.
“Existing Senior Notes” means the $450,000,000 aggregate principal amount of the Original BV Borrower’s 8.0% senior notes due 2014 issued in a public offering or in a Rule 144A or other private placement pursuant to the Existing Senior Note Indenture.
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“Existing Senior Note Indenture” means the Indenture dated as of April 27, 2006, pursuant to which the Existing Senior Notes were issued.
“Existing Senior Subordinated Notes” means the €245,000,000 aggregate principal amount of the Original BV Borrower’s 9.0% senior subordinated notes due 2016 issued in a public offering or in a Rule 144A or other private placement pursuant to the Existing Senior Subordinated Note Indenture.
“Existing Senior Subordinated Note Indenture” means the Indenture dated as of April 27, 2006, pursuant to which the Existing Senior Subordinated Notes were issued.
“Extended Revolving Credit Commitment” has the meaning specified in Section 2.18(a).
“Extended Revolving Credit Loans” means Loans made under the Extended Revolving Credit Commitments.
“Extended Term Loans” has the meaning specified in Section 2.18(a).
“Extending Revolving Credit Lender” has the meaning specified in Section 2.18(a).
“Extending Term Lender” has the meaning specified in Section 2.18(a).
“Extension” has the meaning specified in Section 2.18(a).
“Extension Offer” has the meaning specified in Section 2.18(a).
“Facility” means the Term Loan Facility, the Revolving Credit Facility, the Swing Line Sublimit or the Letter of Credit Sublimit, as the context may require.
“FATCA” means current Sections 1471 through 1474 of the Code, as of the date of this Agreement (and any successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the immediately preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent.
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“Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.
“Fifth Amendment” means that certain Amendment No. 5 to Credit Agreement, dated as of March 26, 2015, among the Original BV Borrower, the Original US Borrower, the Parent, the other Guarantors party thereto, Morgan Stanley Senior Funding, Inc., as the Administrative Agent, the L/C Issuer and certain Revolving Credit Lenders party thereto.
“Fifth Amendment Effective Date” means the date on which all of the conditions contained in Section 4 of the Fifth Amendment have been satisfied or waived by the Administrative Agent.
“Fifth Amendment Revolving Commitments” has the meaning given in the recitals to the Fifth Amendment.
“First Amendment” means that certain Amendment No. 1 to Credit Agreement, dated as of December 6, 2012, among the Original BV Borrower, the Original US Borrower, the Parent, the other Guarantors party thereto, Morgan Stanley Senior Funding, Inc. and Barclays Bank PLC, as joint lead arrangers and bookrunners, Barclays Bank PLC, as syndication agent, the Administrative Agent and certain Lenders party thereto.
“First Amendment Effective Date” means the date on which all of the conditions contained in Section 3 of the First Amendment have been satisfied or waived by the Administrative Agent.
“First Lien Intercreditor Agreement” means a “pari passu” intercreditor agreement among the Collateral Agent and one or more Senior Representatives for holders of Permitted Pari Passu Secured Refinancing Debt in form and substance reasonably satisfactory to the Collateral Agent.
“First Lien Net Leverage Ratio” means, with respect to the Borrower Parties on a consolidated basis, as of the end of any fiscal quarter of STBV for the Test Period ending on such date, the ratio of (a) Adjusted Consolidated Funded Indebtedness of the Borrower Parties that is secured by a first-priority Lien on any asset or property of any Borrower Party (net of Cash on Hand) on the last day of such period to (b) Consolidated EBITDA of the Borrower Parties for such period.
“Floor”, with respect to the Revolving Credit Facility only, means a rate of interest equal to 0.00%.
“Foreign Guarantor” means, collectively, (i) STBV, (ii) each Restricted Subsidiary that is a Foreign Subsidiary of STBV listed as such on Schedule I, as amended pursuant to the Eleventh Amendment, that, as of the Eleventh Amendment Effective Date, Guaranteed the Obligations the Borrower pursuant to the Foreign Guaranty and (iii) each other Restricted Subsidiary of STBV that is a Foreign Subsidiary that shall be required to become a Foreign Guarantor pursuant to Section 6.12; the “Foreign Guarantors” shall not include any other Foreign Subsidiary from time released as a Foreign Guarantor pursuant to the Loan Documents.
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“Foreign Guaranty” means the Foreign Guaranty made by the Foreign Guarantors in favor of the Secured Parties, substantially in the form of Exhibit F-2, as amended pursuant to the Tenth Amendment and the Eleventh Amendment, together with each other guaranty or guaranty supplement in respect of the Obligations of the Borrower delivered pursuant to Section 6.12.
“Foreign Lender” means, with respect to any Borrower (a) if such Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if such Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which such Borrower is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
“Foreign Security Agreements” means, collectively, the Collateral Documents set forth on Schedule II (as modified pursuant to the Tenth Amendment and the Eleventh Amendment and as such schedule may otherwise be modified from time to time at the sole and reasonable discretion of the Administrative Agent to reflect changes mutually agreed to between the Borrower and the Administrative Agent) and each Security Agreement executed and delivered pursuant to Section 4.01, Section 6.12 and Section 6.14, each in form and substance reasonably acceptable to the Administrative Agent, to secure the Obligations of each Foreign Guarantor under its respective Guaranty.
“Foreign Subsidiary” means any direct or indirect Subsidiary which is not a Domestic Subsidiary.
“Fourth Amendment” means that certain Amendment No. 4 to Credit Agreement, dated as of November 4, 2014, among the Original BV Borrower, the Original US Borrower, the Parent, the other Guarantors party thereto, Morgan Stanley Senior Funding, Inc., as the Administrative Agent, and certain Lenders party thereto.
“Fourth Amendment Effective Date” means the date on which all of the conditions contained in Section 3 of the Second Amendment have been satisfied or waived by the Administrative Agent.
“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 engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied; provided, the treatment of, and all computations with respect to, leases contained in this Agreement may, in the sole discretion of the Borrower, be treated, and performed, in accordance with GAAP as in effect on the Closing Date. Notwithstanding the foregoing, at any time after adoption of IFRS by the Ultimate Parent for its financial statements and reports for all financial reporting purposes, the Borrower may elect to apply IFRS for all purposes of this Agreement and the other Loan Documents, in lieu of United States GAAP, and, upon any such election, references herein or in any other Loan Document to
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GAAP shall be construed to mean IFRS as in effect from time to time; provided that (1) any such election once made shall be irrevocable (and shall only be made once), (2) all financial statements and reports required to be provided after such election pursuant to this Agreement shall be prepared on the basis of IFRS and (3) from and after such election, all ratios, computations and other determinations (A) based on GAAP contained in this Agreement shall be computed in conformity with IFRS and (B) in this Agreement that require the application of GAAP for periods that include fiscal quarters ended prior to the Borrower’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP; provided further that in the event of any such election by the Borrower, any Senior Secured Net Leverage Ratio, First Lien Net Leverage Ratio and Total Leverage Ratio thresholds in this Agreement may be recalibrated to reflect the election to implement IFRS so long as (1) such recalibration is limited to changes in the calculation of such thresholds due to the effect of differences between GAAP and IFRS, (2) the recalibrated Senior Secured Net Leverage Ratio, First Lien Net Leverage Ratio and Total Leverage Ratios shall be mutually agreed between the Administrative Agent and the Borrower, unless the Required Lenders have given notice of their objection to such recalibration within five (5) Business Days of receiving notice thereof, and (3) any such recalibration shall be done in a manner such that after giving effect to such recalibration, the recalibrated Senior Secured Net Leverage Ratio, First Lien Net Leverage Ratio and Total Leverage Ratio thresholds shall be consistent with the intention of the respective Senior Secured Net Leverage Ratio, First Lien Net Leverage Ratio and Total Leverage Ratio thresholds calculated under GAAP and set forth in this Agreement on the Closing Date. The Borrower shall give notice of any election to the Administrative Agent with 15 days of such election. For the avoidance of doubt, solely making an election (without any other action) referred to in this definition will not be treated as an incurrence of Indebtedness.
“General Incremental Availability” has the meaning specified in Section 2.14(a).
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supranational body exercising such powers or functions, such as the European Union or the European Central Bank).
“Granting Lender” has the meaning specified in Section 10.07(g).
“Guarantee” means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided, however, if such obligation has not been assumed, the amount of such
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Guarantee shall be the lesser of the primary obligations so secured or the value of the assets to which a Lien has attached; and provided further that the term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity obligations, including, but not limited to, those in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Guarantor Affirmation” has the meaning given to such term in Section 12 of the Sixth Amendment.
“Guarantor Coverage Event” means any time that either (a) the Consolidated EBITDA of the Loan Parties (excluding, for the avoidance of doubt, any portion of their Consolidated EBITDA contributed solely by Restricted Subsidiaries that are not Loan Parties) is less than 75% of the Consolidated EBITDA of the Borrower Parties (excluding any Consolidated EBITDA contributed by Excluded Subsidiaries), determined in each case for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01, or (b) the total assets of the Loan Parties (calculated on an unconsolidated basis and excluding all intra-group items and investments in Subsidiaries that are not Loan Parties) is less than 75% of the Consolidated Total Assets of the Borrower Parties (excluding any assets of any Excluded Subsidiary), determined in each case as of the end of the most recent fiscal year for which financial statements have been delivered pursuant to Section 6.01(a); provided that, so long as a Specified RCF Obligations Reinstatement Event has not occurred, the foregoing determination under clauses (a) and (b) shall not be required with respect to the Revolving Credit Facility.
“Guarantors” means, collectively, the Parent, each Domestic Guarantor and Foreign Guarantor.
“Guaranty” means, collectively, the Domestic Guaranty and the Foreign Guaranty.
“Hazardous Materials” means all substances, materials or wastes classified or regulated pursuant to any Environmental Law as hazardous, toxic explosive or radioactive or as pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials and polychlorinated biphenyls.
AMERICAS/2023410772.1 2023410772.9 39 Credit Agreement
“Hedge Bank” means any Person that is a Lender or an Affiliate of a Lender at the time of entering into a Secured Hedge Agreement, in its capacity as a party to a Secured Hedge Agreement.
“Historical Financial Statements” means the audited consolidated balance sheet of STBV and its Subsidiaries as of December 31, 2010, and the related audited consolidated statements of operations, shareholders’ equity and cash flows for the Original BV Borrower and its Subsidiaries for the fiscal year ended December 31, 2010.
“Honor Date” has the meaning specified in Section 2.03(c)(i).
“Identified Participating Lenders” has the meaning specified in Section 2.05(a)(iv)(C)(3).
“Identified Qualifying Lender” has the meaning specified in Section 2.05(a)(iv)(D)(3).
“IFRS” means the International Financial Reporting Standards as issued by the International Accounting Standards Board.
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b) the maximum amount (after giving effect to any prior drawings or reductions which may have been reimbursed) of all outstanding letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar instruments issued or created by or for the account of such Person;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price of property or services (other than (i) trade accounts payable or accrued expenses in the ordinary course of business and (ii) any earn-out obligation until such obligation appears in the liabilities section of the balance sheet of such Person);
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development bond and similar financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f) all Attributable Indebtedness;
(g) all obligations of such Person in respect of Disqualified Equity Interests;
(h) all Synthetic Indebtedness of such Person; and
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(i) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of Indebtedness of any Person for purposes of clause (e) shall be deemed to be equal to the lesser of (x) the aggregate unpaid amount of such Indebtedness and (y) the fair market value of the property encumbered thereby as determined by such Person in good faith.
“Indemnified Liabilities” has the meaning set forth in Section 10.05.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitees” has the meaning set forth in Section 10.05.
“Information” has the meaning specified in Section 10.08.
“Initial Amount” means an amount equal to the sum of $100,000,000 plus the “Available Amount” determined as of immediately prior to the Tenth Amendment Effective Date.
“Initial L/C Issuer” means the bank or other financial institution listed on the signature pages hereof as the Initial L/C Issuer.
“Initial Lenders” means, at any date, collectively, the Lenders party to this Agreement on the Closing Date, each in its capacity as, and so long as it is, a “Lender” hereunder.
“Initial Swing Line Lender” means the bank or other financial institution listed on the signature pages hereof as the Initial Swing Line Lender.
“Intellectual Property Security Agreement” means, collectively, the Copyright Security Agreement, the Trademark Security Agreement and the Patent Security Agreement (each as defined in the Domestic Security Agreement), referred to in and substantially in the forms attached to the Domestic Security Agreement together with each other intellectual property security agreement executed and delivered pursuant to Section 6.12 or the applicable Security Agreement.
“Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan or a SONIA Daily Simple Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided that if any Interest Period for a Eurodollar Rate Loan, Term SOFR Loan or a EURIBOR Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; (b) as to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December and the Maturity Date of the Facility under which such Loan was made; and (c) as to any SONIA Daily Simple Loan, each date that is on the numerically corresponding day in each calendar month that
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is one month after the Borrowing of such SONIA Daily Simple Loan (or, if there is no such numerically corresponding day in such month, then the last day of such month).
“Interest Period” means, as to each Eurodollar Rateany Term SOFR Loan, RFR Loans denominated in Dollars or any EURIBOR Loan, the period commencing on the date such Eurodollar Rate Loan, RFRTerm SOFR Loan denominated in Dollars or EURIBOR Loan, as applicable, is disbursed or converted to or continued as a Eurodollar RateTerm SOFR Loan, RFR Loan denominated in Dollars or EURIBOR Loan, as the case may be, and ending on the date one week, one, two, three or six months thereafter for Eurodollar Rate or EURIBOR Loans or if available to all relevant Lenders, twelve months thereafter, and one, three or six months thereafter for RFRTerm SOFR Loans denominated in Dollars (subject to the availability for the interest rate applicable to the relevant currency), as selected by the Borrower in its Committed Loan Notice; provided that:
(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the immediately preceding Business Day;
(b) 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 calendar month at the end of such Interest Period; and
(c) no Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or debt or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor incurs debt of the type referred to in clause (i) of the definition of “Indebtedness” set forth in this Section 1.01 in respect of such Person or (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, less any amount paid, repaid, returned, distributed or otherwise received in cash in respect of such Investment.
“Investment Pull-Forward Amount” has the meaning specified in Section 7.02(m).
“IP Rights” has the meaning set forth in Section 5.14.
“IRS” means the United States Internal Revenue Service.
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“Joint Venture” means (a) any Person which would constitute an “equity method investee” of STBV or any of its Restricted Subsidiaries and (b) any Person in whom STBV or any of its Restricted Subsidiaries beneficially owns any Equity Interest that is not a Subsidiary.
“Judgment Currency” has the meaning set forth in Section 10.24.
“Judgment Currency Conversion Date” has the meaning set forth in Section 10.24.
“Junior Financing” has the meaning specified in Section 7.14.
“Junior Financing Documentation” means any documentation governing any Junior Financing.
“Jurisdictional Requirements” has the meaning specified in Section 7.04(a).
“Laws” means, collectively, all applicable international, foreign, Federal, state, commonwealth and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“L/C Advance” means, with respect to each Revolving Credit Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Pro Rata Share.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing.
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.
“L/C Issuer” means the Initial L/C Issuer in its capacity as issuer of Letters of Credit hereunder and each other Lender reasonably acceptable to both the Administrative Agent and the Borrower that has entered into a letter of credit issuer agreement in form and substance reasonably satisfactory to the Administrative Agent, in each case, in its capacity as an issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder. Each L/C Issuer may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such L/C Issuer, in which case the term L/C Issuer shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate. In the event that there is more than one L/C Issuer at any time, references herein and in the other Loan Documents to the L/C Issuer shall be deemed to refer to the L/C Issuer in respect of the applicable Letter of Credit or to all L/C Issuers, as the context requires. On the Third Amendment Effective Date, Barclays Bank PLC shall be deemed to be an L/C Issuer under this Agreement with respect to the Letters of Credit identified on Schedule 1 of the Third Amendment that lists Barclays Bank PLC as issuer.
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“L/C Issuer’s Office” means the L/C Issuer’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as the L/C Issuer may from time to time notify in writing to the Borrower, the Lenders and the Administrative Agent.
“L/C Obligations” means, as at any date of determination, the aggregate undrawn amount of all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including, without duplication, all L/C Borrowings.
“LCT Election” has the meaning specified in Section 1.12.
“LCT Test Date” has the meaning specified in Section 1.12.
“Lender” has the meaning specified in the introductory paragraph to this Agreement and, as the context requires, includes the L/C Issuer and the Swing Line Lender.
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.
“Letter of Credit” means any letter of credit issued hereunder and shall include the Existing Letters of Credit. A Letter of Credit may be a commercial letter of credit or a standby letter of credit.
“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit substantially in the form from time to time in use by the L/C Issuer.
“Letter of Credit Expiration Date” means the day that is the scheduled Maturity Date then in effect for the Revolving Credit Facility.
“Letter of Credit Sublimit” means $75,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capitalized Lease having substantially the same economic effect as any of the foregoing).
“Limited Condition Transaction” means any acquisition or similar Investment whose consummation is not conditioned on the availability of, or on obtaining, third party financing.
“Loan” means an extension of credit by a Lender to the Borrower under Article 2 in the form of a Term Loan, a Revolving Credit Loan or a Swing Line Loan.
“Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) the Guaranty, (d) the Collateral Documents and (e) each Letter of Credit Application.
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“Loan Parties” means, collectively, the Borrower and each Guarantor.
“Mandatory Cost” means the rate per annum notified by any Lender to the Administrative Agent to be the cost to the Lender of compliance with all reserve asset, liquidity or cash margin requirements of the Bank of England, the Financial Services Authority or the European Central Bank.
“Market Capitalization” means an amount equal to (i) the total number of issued and outstanding shares of common (or common equivalent) Equity Interests of the Ultimate Parent on the date of the declaration of a dividend or the making of any other Restricted Payment permitted pursuant to Section 7.06(h) multiplied by (ii) the arithmetic mean of the closing prices per share of such common (or common equivalent) Equity Interests on the principal securities exchange on which such Equity Interests are traded for the 30 consecutive trading days immediately preceding such date.
“Master Agreement” has the meaning specified in the definition of “Swap Contract.”
“Material Adverse Effect” means (a) a material adverse effect on the business, operations, assets, financial condition or results of operations of STBV and the Restricted Subsidiaries, taken as a whole, (b) a material adverse effect on the ability of the Loan Parties (taken as a whole) to perform their obligations under any Loan Document or (c) a material adverse effect on the rights and remedies of the Lenders under any Loan Document.
“Material Foreign Subsidiary” means, at any time, any Foreign Subsidiary that (a) contributed 20.0% or more of the Consolidated EBITDA of STBV for the Test Period most recently ended on or prior to the date of determination, (b) had consolidated assets representing 20.0% or more of the total consolidated assets of STBV on the last day of the Test Period ended on or prior to the date of determination or (c) owns any Material Intellectual Property or any Material Real Property. Notwithstanding the foregoing, any Foreign Subsidiary that (a) contributed less than 1.0% of the Consolidated EBITDA of STBV for the Test Period most recently ended on or prior to the date of determination or (b) had consolidated assets representing less than 1.0% of the total consolidated assets of STBV on the last day of the Test Period ended on or prior to the date of determination shall not in any event be considered a Material Foreign Subsidiary. Notwithstanding anything in the foregoing to the contrary, any Foreign Subsidiary organized under the laws of the People’s Republic of China (or any political subdivision thereof) shall not be deemed to be a Material Foreign Subsidiary or be required to be designated as a Material Foreign Subsidiary under any of the provisions of this definition.
“Material Intellectual Property” means any IP Rights that are material to the operation of the business of STBV and the Restricted Subsidiaries, taken as a whole.
“Material Real Property” means fee owned real property (a) of any Loan Party with a value in excess of $100,000,000 or (b) where manufacturing operations that are material to the operation of the business of STBV and the Restricted Subsidiaries, taken as a whole, are conducted. Notwithstanding the foregoing or anything to the contrary herein, (1) in determining whether a Foreign Subsidiary is a Material Foreign Subsidiary, solely clause (b) of this definition shall apply and (2) clause (a) of this definition shall apply solely to any Restricted Subsidiary that is a Loan Party pursuant to Section 6.12.
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“Maturity Date” means (a) with respect to the Revolving Credit Facility, the earlier of (i) June 23, 2027 and (ii) if a Term Loan Facility Refinancing has not occurred on or before the date that is ninety (90) days prior to the maturity date for the Tenth Amendment Term Loans set forth in clause (b) hereof, such ninetieth (90th) day, and (b) with respect to the Term Loan Facility, for Sixth Amendment Term Loans, October 14, 2021 and, for Tenth Amendment Term Loans, September 20, 2026.
“Maximum Rate” has the meaning specified in Section 10.10.
“Minimum Extension Condition” has the meaning specified in Section 2.18(b).
“MNPI” has the meaning specified in Section 2.05(a)(iv)(F).
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Morgan Stanley” means Morgan Stanley Senior Funding, Inc.
“Mortgage” means any deed of trust, trust deed, mortgages or other comparable instrument covering the Material Real Property required to be mortgaged pursuant to this Agreement in form and substance reasonably acceptable to the Administrative Agent executed and delivered pursuant to Section 6.12.
“Multiemployer Plan” means any multiemployer plan as defined in Section 4001(a)(3) of ERISA, and subject to ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
“Net Cash Proceeds” means:
(a) with respect to the Disposition of any asset by STBV or any of its Restricted Subsidiaries or any Casualty Event, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such Disposition or Casualty Event (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received and, with respect to any Casualty Event, any insurance proceeds or condemnation awards in respect of such Casualty Event actually received by or paid to or for the account of STBV or any of its Restricted Subsidiaries, but excluding (for the avoidance of doubt) any Designated Non-Cash Consideration) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by the asset subject to such Disposition or Casualty Event and that is required to be repaid (and is timely repaid) in connection with such Disposition or Casualty Event (other than Indebtedness under the Loan Documents), (B) the out-of-pocket fees and expenses (including, without limitation, attorneys’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees) actually incurred by STBV or such Restricted Subsidiary in connection with such Disposition or Casualty Event, (C) taxes paid or reasonably estimated to be payable in connection therewith by STBV or such Restricted Subsidiary and attributable to such Disposition or Casualty Event (including, in respect of any proceeds received in connection with a Disposition or Casualty Event of any asset of any Restricted Subsidiary organized under the laws of a jurisdiction different from the jurisdiction of organization of the Borrower
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Party, deductions in respect of withholding taxes that are payable in cash if such funds are repatriated to the jurisdiction of the Borrower Party) and (D) any reserve for adjustment in respect of (1) the sale price of such asset or assets established in accordance with GAAP and (2) any liabilities associated with such asset or assets and retained by STBV or any Restricted Subsidiaries after such sale or other disposition thereof, including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction and it being understood that “Net Cash Proceeds” shall include, without limitation, any cash or Cash Equivalents (i) received upon the Disposition of any non-cash consideration received by STBV or any Restricted Subsidiaries in respect of any such Disposition or Casualty Event and (ii) upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in clause (D) above or, if such liabilities have not been satisfied in cash and such reserve not reversed within three hundred and sixty-five (365) days after such Disposition or Casualty Event, the amount of such reserve; provided that (x) no proceeds realized in a single transaction or series of related transactions shall constitute Net Cash Proceeds unless such proceeds shall exceed $20,000,000 and (y) no proceeds shall constitute Net Cash Proceeds under this clause (a) in any fiscal year until the aggregate amount of all such proceeds in such fiscal year shall exceed $40,000,000 (and thereafter only proceeds in excess of such amount shall constitute Net Cash Proceeds under this clause (a)); and
(b) with respect to the incurrence or issuance of any Indebtedness by STBV or any of its Restricted Subsidiaries, the excess, if any, of (i) the sum of the cash received in connection with such incurrence or issuance over (ii) the investment banking fees, underwriting discounts, commissions, costs and other out-of-pocket expenses (including attorneys’ fees) and other customary expenses, incurred by STBV or such Restricted Subsidiary in connection with such incurrence or issuance (including, in the case of Indebtedness of any Restricted Subsidiary organized under the laws of a jurisdiction different from the jurisdiction of organization of the Borrower Party, deductions in respect of withholding taxes that are payable in cash if such funds are repatriated to the jurisdiction of the Borrower Party).
“Ninth Amendment” means that certain Amendment No. 9 to Credit Agreement, dated as of March 27, 2019, among the Original BV Borrower, the Original US Borrower, the Parent, the other Guarantors party thereto, Morgan Stanley Senior Funding, Inc., as Administrative Agent, the L/C Issuer and the Swingline Lender, and the Revolving Credit Lenders party thereto.
“Ninth Amendment Effective Date” means the date on which all of the conditions contained in Section 3 of the Ninth Amendment have been satisfied or waived by the Administrative Agent.
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“Non-Consenting Lender” has the meaning specified in Section 3.07(d).
“Nonrenewal Notice Date” has the meaning specified in Section 2.03(b)(iii).
“Non-US Lender” has the meaning specified in Section 10.15(a)(i).
“Not Otherwise Applied” means, with reference to any amount of Net Cash Proceeds of any transaction or event or of Excess Cash Flow, that such amount (a) was not required to be applied to prepay the Loans pursuant to Section 2.05(b), (b) was not previously included in a calculation of “Consolidated EBITDA” pursuant to clause (b)(xiii) of the definition thereof and (c) was not previously applied in determining the permissibility of a transaction under the Loan Documents where such permissibility was (or may have been) contingent on receipt of such amount.
“Note” means a Term Note or a Revolving Credit Note, as the context may require.
“NPL” means the National Priorities List under CERCLA.
“Obligation Currency” has the meaning specified in Section 10.24.
“Obligations” means, subject to Section 10.25(c), all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document with respect to any Loan or Letter of Credit, or any Secured Hedge Obligations or Cash Management Obligations, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents include (a) the obligation to pay principal, interest, Letter of Credit commissions, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Loan Party under any Loan Document and (b) the obligation of any Loan Party to reimburse any amount in respect of any of the foregoing that any Lender, in its sole discretion, may elect to pay or advance on behalf of such Loan Party.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Offered Amount” has the meaning specified in Section 2.05(a)(iv)(D)(1).
“Offered Discount” has the meaning specified in Section 2.05(a)(iv)(D)(1).
“Original BV Borrower” has the meaning specified in the introductory paragraph to this Agreement.
“Original US Borrower” has the meaning specified in the introductory paragraph to this Agreement.
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“Original Borrowers” means, collectively, the Original US Borrower and Original BV Borrower.
“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-US jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Other Commitments” means one or more Classes of Loan commitments hereunder that result from a Refinancing Amendment.
“Other Connection Taxes” means, with respect to any Lender, Taxes imposed as a result of a present or former connection between the Lender and the jurisdiction imposing such Tax (other than connections arising from Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Loans” means one or more Classes of Loans that result from a Refinancing Amendment.
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment or the sale of a participation.
“Outstanding Amount” means (a) with respect to the Term Loans, Revolving Credit Loans and Swing Line Loans on any date, the principal amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans, Revolving Credit Loans (including any refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit Extensions as a Revolving Credit Borrowing) and Swing Line Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount thereof on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes thereto as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit (including any refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit Extensions as a Revolving Credit Borrowing) or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date.
“Parent” has the meaning specified in the introductory paragraph to this Agreement.
“Participant” has the meaning specified in Section 10.07(d).
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“Participating Member States” has the meaning given to it in Council Regulation EC No. 1103/97 of 17 June 1997 made under Article 235 of the Treaty on European Union.
“Participating Lender” has the meaning specified in Section 2.05(a)(iv)(C)(2).
“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into Law October 26, 2001)).
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five (5) plan years.
“Periodic Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.
“Permitted Acquisition” has the meaning specified in Section 7.02(i).
“Permitted Encumbrances” shall mean any encumbrances permitted under any Mortgage.
“Permitted Junior Secured Refinancing Debt” means any secured Indebtedness incurred by the Borrower Parties or any Restricted Subsidiary in the form of one or more series of secured notes or secured loans, in each case, secured by liens having priority junior to the Liens granted by the Loan Parties pursuant to the Loan Documents; provided that (i) such Indebtedness is secured by the Collateral on a junior priority basis with the Obligations and, unless otherwise agreed to by the Administrative Agent in its reasonable discretion, is not secured by any property or assets of any Loan Party other than the Collateral, (ii) such Indebtedness complies with the proviso in the definition of Credit Agreement Refinancing Indebtedness, and (iii) a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to or otherwise subject to the provisions of a Second Lien Intercreditor Agreement; provided that if such Indebtedness is the initial Permitted Junior Secured Refinancing Debt incurred by the Borrower Parties, then relevant Borrower Parties, the Collateral Agent and the Senior Representative for such Indebtedness shall have executed and delivered a Second Lien Intercreditor Agreement. Permitted Junior Secured Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
“Permitted Other Investment” has the meaning specified in Section 7.02(m).
“Permitted Pari Passu Secured Refinancing Debt” means any secured Indebtedness incurred by the Borrower Parties in the form of one or more series of senior secured notes or loans; provided that (i) such Indebtedness is secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Obligations and, unless otherwise agreed to by the Administrative Agent in its reasonable discretion, is not secured by any property or assets of the Loan Parties other than the Collateral, (ii) such Indebtedness complies with the proviso in
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the definition of Credit Agreement Refinancing Indebtedness and (iii) a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to or otherwise subject to the provisions of a First Lien Intercreditor Agreement; provided that if such Indebtedness is the initial Permitted Pari Passu Secured Refinancing Debt incurred by the Borrower Parties, then the relevant Borrower Parties, the Collateral Agent and the Senior Representative for such Indebtedness shall have executed and delivered a First Lien Intercreditor Agreement. Permitted Pari Passu Secured Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
“Permitted Refinancing” means, with respect to any Person, any modification, refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, (b) such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) if the Indebtedness being modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed or extended, taken as a whole, (d) the terms and conditions (including, if applicable, as to collateral) of any such modified, refinanced, refunded, renewed or extended Indebtedness are not materially less favorable to the Loan Parties or the Lenders than the terms and conditions of the Indebtedness being modified, refinanced, refunded, renewed or extended, (e) such modification, refinancing, refunding, renewal or extension is incurred by the Person or Persons who are the obligors on the Indebtedness being modified, refinanced, refunded, renewed or extended, and such new or additional obligors as are permitted under Section 7.03 or as are or become Loan Parties in accordance with Section 6.12 and with respect to subordinated Indebtedness the obligations of such obligors shall be subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in documentation governing the Indebtedness, taken as a whole and (f) at the time thereof, no Event of Default shall have occurred and be continuing.
“Permitted Subordinated Indebtedness” means any Indebtedness incurred by the Borrower Parties that is expressly subordinated to the prior payment in full in cash of the Obligations (other than contingent indemnification obligations) on terms and conditions reasonably satisfactory to the Administrative Agent.
“Permitted Unsecured Refinancing Debt” means any unsecured Indebtedness incurred by the Borrower Parties in the form of one or more series of unsecured notes or loans; provided that (i) such Indebtedness is not secured by any property or assets of the Loan Parties and (ii) such Indebtedness complies with the proviso to the definition of Credit Agreement Refinancing Indebtedness. Permitted Unsecured Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
AMERICAS/2023410772.1 2023410772.9 51 Credit Agreement
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Platform” has the meaning specified in Section 6.02.
“Pledged Debt” has the meaning specified in the applicable Security Agreement.
“Pledged Equity” has the meaning specified in the applicable Security Agreement.
“Prepayment Percentage” means the applicable percentage based on the Senior Secured Net Leverage Ratio set forth below for each item set forth below:
| | | | | |
| Level | Indebtedness |
Level I
> 1.5:1.0 | 100% |
Level II
< 1.5:1.0 but >
1.0:1.0 | 50% |
| Level III< 1.0:1.0 | 0% |
| | | | | |
| Level | Excess Cash Flow (with respect to prepayments made pursuant to Section 2.05(b) in respect of any fiscal year ended on or before December 31, 2016) |
Level I
> 1.5:1.0 | 25% |
Level II
< 1.5:1.0 | 0% |
| | | | | |
| Level | Excess Cash Flow (with respect to prepayments made pursuant to Section 2.05(b) in respect of any fiscal year ending on or after December 31, 2017)) |
Level I
> 2.25:1.0 | 25% |
Level II
< 2.25:1.0 | 0% |
AMERICAS/2023410772.1 2023410772.9 52 Credit Agreement
Any increase or decrease in the Prepayment Percentage resulting from a change in the Senior Secured Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(b); provided that at the option of the Administrative Agent or the Required Lenders Level I shall apply (x) as of the first Business Day after the date on which a Compliance Certificate was required to have been delivered but was not delivered, and shall continue to so apply to but excluding the date on which such Compliance Certificate is so delivered (and thereafter the Level otherwise determined in accordance with this definition shall apply) and (y) as of the first Business Day after an Event of Default shall have occurred and be continuing, and shall continue to so apply to but excluding the date on which such Event of Default is cured or waived (and thereafter the Level otherwise determined in accordance with this definition shall apply).
“Pro Forma Basis,” “Pro Forma Compliance” and “Pro Forma Effect” means, for purposes of calculating compliance with the Senior Secured Net Leverage Ratio or the First Lien Net Leverage Ratio, as applicable, in respect of a Specified Transaction, that such Specified Transaction and the following transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable period of measurement for the Senior Secured Net Leverage Ratio or First Lien Net Leverage Ratio, as applicable: (a) income statement items (whether positive or negative) attributable to the property or Person subject to such Specified Transaction, (i) in the case of a Permitted Acquisition or Investment described in the definition of “Specified Transaction,” shall be included and (ii) in the case of a Disposition of all or substantially all of the assets of or all of the Equity Interests of any Restricted Subsidiary of STBV or any division or product line of STBV or any of its Restricted Subsidiaries, shall be excluded, (b) any retirement of Indebtedness, and (c) any Indebtedness incurred or assumed by STBV or any of its Restricted Subsidiaries in connection therewith and if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination; provided that the foregoing pro forma adjustments may be applied to the Senior Secured Net Leverage Ratio or the First Lien Net Leverage Ratio, as applicable, solely to the extent that such adjustments are consistent with the definition of Consolidated EBITDA and give effect to events that are (x) directly attributable to such transaction, (y) expected to have a continuing impact on STBV and its Restricted Subsidiaries and (z) factually supportable or based on the reasonable good faith of the Responsible Officer executing the Compliance Certificate.
“Pro Rata Share” means, with respect to each Lender at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Commitments of such Lender under the applicable Facility or Facilities (or in the case of any Term Lender under any Term Loan Facility under which Term Loans have been made, the Outstanding Amount of such Lender’s Term Loans under such Facility) at such time and the denominator of which is the amount of the Aggregate Commitments under the applicable Facility or Facilities (or in the case of any Term Loan Facility under which Term Loans have been made, the Outstanding Amount of all Term Loans under such Facility) at such time; provided that if such Commitments have been terminated, then the Pro Rata Share of each Lender shall be determined based on the Pro Rata Share of such Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof.
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“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.
“Public Lender” has the meaning specified in Section 6.02.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” has the meaning specified in Section 10.28.
“Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity Interests.
“Qualified Securitization Financing” means any Securitization Financing of a Securitization Subsidiary that meets the following conditions: (i) STBV or applicable Subsidiary shall have determined in good faith that such Qualified Securitization Financing (including financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to STBV or such Subsidiary and the Securitization Subsidiary, (ii) all sales of Securitization Assets and related assets to the Securitization Subsidiary are made at fair market value (as determined in good faith by STBV or such Subsidiary) and (iii) the financing terms, covenants, termination events and other provisions thereof shall be market terms (as determined in good faith by STBV or such Subsidiary) and may include Standard Securitization Undertakings. The grant of a security interest in any Securitization Assets of STBV or any of its Restricted Subsidiaries (other than a Securitization Subsidiary) to secure the Secured Obligations and any Credit Agreement Refinancing Indebtedness shall not be deemed a Qualified Securitization Financing.
“Qualifying Lender” has the meaning specified in Section 2.05(a)(iv)(D)(3).
“Rate Fixing Day” means the day which market practice in the European Interbank Market treats as the rate fixing day for obtaining deposits in Euro which shall be (i) one Business Days prior to the date of the proposed Borrowing with respect to the initial Interest Period and (ii) two Business Days prior to the first day of any other Interest Period.
“Ratio Incremental Availability” has the meaning Specified in Section 2.14(a).
“Reconciliation Report” has the meaning specified in Section 6.01(d).
“Reference Bank” means each of the Arrangers.
“Refinancing Amendment” means an amendment to this Agreement in form and substance reasonably satisfactory to the Administrative Agent and the Borrower executed by each of (a) the Borrower, (b) the Administrative Agent and (c) each lender that agrees to provide any portion of the Credit Agreement Refinancing Indebtedness being incurred pursuant thereto, in accordance with Section 2.17.
AMERICAS/2023410772.1 2023410772.9 54 Credit Agreement
“Register” has the meaning set forth in Section 10.07(c).
“Registered Equivalent Notes” means, with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act, notes issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.
“Released Guarantor” has the meaning set forth in Section 10.25(b).
“Relevant Governmental Body” means (i) the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto or (ii)(a) with respect to a Revolving Credit Facility Benchmark Replacement in respect of Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Dollars, the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto and (b) with respect to a Revolving Credit Facility Benchmark Replacement in respect of Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, any currency other than Dollars, (1) the central bank for the currency in which such Obligations, interest, fees, commissions or other amounts are denominated, or calculated with respect to, or any central bank or other supervisor which is responsible for supervising either (A) such Revolving Credit Facility Benchmark Replacement or (B) the administrator of such Revolving Credit Facility Benchmark Replacement or (2) any working group or committee officially endorsed or convened by (A) the central bank for the Currency in which such Obligations, interest, fees, commissions or other amounts are denominated, or calculated with respect to, (B) any central bank or other supervisor that is responsible for supervising either (x) such Revolving Credit Facility Benchmark Replacement or (y) the administrator of such Revolving Credit Facility Benchmark Replacement, (C) a group of those central banks or other supervisors or (D) the Financial Stability Board or any part thereof.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty (30) day notice period has been waived.
“Repricing Transaction” means the incurrence by STBV or any Restricted Subsidiaries of any Indebtedness (including, without limitation, any new or additional term loans under this Agreement (including Term Loans constituting Other Loans), whether incurred directly or by way of the conversion of Term Loans into a new tranche of replacement term loans under this Agreement), but excluding Indebtedness incurred in connection with a Change of Control, that is broadly marketed or syndicated to banks and other institutional investors in financings similar to the facilities provided for in this Agreement (i) having an “effective” yield for the respective Type of such Indebtedness that is less than the “effective” yield for Term Loans of the respective Type (with the comparative determinations to be made in the reasonable judgment of the Administrative Agent consistent with generally accepted financial practices, after giving effect to, among other factors, margin, floors, upfront or similar fees or “original issue discount,” in each case, shared with all lenders or holders of such Indebtedness or Term Loans, as the case may be, but excluding the effect of any arrangement, structuring, syndication, commitment or other fees payable in connection therewith that are not shared with all lenders or holders of such Indebtedness or Term Loans, as the case may be, and without taking into account any fluctuations in the EurodollarTerm SOFR Reference Rate or EURIBOR, as applicable) and (ii) the proceeds of which are used to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole or in part, outstanding principal of Term Loans. Any such determination by the Administrative Agent as contemplated by preceding sentence shall be conclusive and binding on all Lenders holding Term Loans.
AMERICAS/2023410772.1 2023410772.9 55 Credit Agreement
“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Term Loans or Revolving Credit Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
“Required Lenders” means, as of any date of determination, Lenders having more than 50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition), (b) aggregate unused Term Commitments and (c) aggregate unused Revolving Credit Commitments; provided that the unused Term Commitment, unused Revolving Credit Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
“Required Revolving Credit Lenders” means, as of any date of determination, Lenders having more than 50% of the sum of the (a) aggregate principal amount outstanding under the Revolving Credit Facility (with the aggregate outstanding amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition) and (b) aggregate unused Revolving Credit Commitments; provided that the unused Revolving Credit Commitment of, and the portion of the aggregate principal amount outstanding under the Revolving Credit Loans held or deemed held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Credit Lenders.
“Resolution Authority” means any EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer, president, vice president, chief financial officer, treasurer or assistant treasurer or other similar officer of a Loan Party or, in the case of STBV or any Foreign Subsidiary, any duly appointed authorized signatory or any director or managing member of such Person and, as to any document delivered on the Closing Date, any secretary or assistant secretary. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of STBV or any Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to the stockholders, partners or members (or the equivalent Persons thereof) of STBV or any Restricted Subsidiary.
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“Restricted Subsidiary” means any Subsidiary of STBV other than an Unrestricted Subsidiary.
“Revolving Credit Borrowing” means a Dollar Revolving Credit Borrowing, a Euro Revolving Credit Borrowing or a Sterling Revolving Credit Borrowing.
“Revolving Credit Commitment” means a Dollar Revolving Credit Commitment, a Euro Revolving Credit Commitment or a Sterling Revolving Credit Commitment, in each case including, for the avoidance of doubt, each Fifth Amendment Revolving Commitment, each Seventh Amendment Revolving Credit Commitment and each Eleventh Amendment Revolving Commitment.
“Revolving Credit Commitment Fee” has the meaning specified in Section 2.09(a).
“Revolving Credit Commitment Period” means the period from and including the Closing Date to but not including the Maturity Date of the Revolving Credit Facility or any earlier date on which the Revolving Credit Commitments shall terminate as provided herein.
“Revolving Credit Exposure” means, with respect to each Revolving Credit Lender, the sum such Revolving Credit Lender’s Dollar Revolving Credit Exposure, Euro Revolving Credit Exposure and Sterling Revolving Credit Exposure.
“Revolving Credit Facility” means, at any time, the aggregate Dollar Amount of the Revolving Credit Lenders’ Revolving Credit Commitments at such time.
“Revolving Credit Facility Benchmark” means, initially, with respect to any (a) Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Dollars, the Term SOFR Reference Rate; provided that if a Revolving Credit Facility Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or then-current Revolving Credit Facility Benchmark for Dollars, then “Revolving Credit Facility Benchmark” means, with respect to such Obligations, interest, fees, commissions or other amounts, the applicable Revolving Credit Facility Benchmark Replacement to the extent that such Revolving Credit Facility Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 1.13(a), (b) Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Sterling, Adjusted Daily Simple SONIA; provided that if a Revolving Credit Facility Benchmark Transition Event has occurred with respect to such Adjusted Daily Simple SONIA or the then-current Revolving Credit Facility Benchmark for such currency, then “Revolving Credit Facility Benchmark” means, with respect to such Obligations, interest, fees, commissions or other amounts, the applicable Revolving Credit Facility Benchmark Replacement to the extent that such Revolving Credit Facility Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 1.13(a) and (c) Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Euros, EURIBOR; provided that if a Revolving Credit Facility Benchmark Transition Event has occurred with respect to EURIBOR, or the then-current Revolving Credit Facility Benchmark for such currency, then “Revolving Credit Facility Benchmark” means, with respect to such Obligations, interest, fees, commissions or other amounts, the applicable Revolving Credit Facility Benchmark Replacement to the extent that such Revolving Credit Facility Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 1.13(a).
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“Revolving Credit Facility Benchmark Replacement” means, with respect to any Revolving Credit Facility Benchmark Transition Event, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:
(a) for Revolving Credit Loans denominated in Dollars, the sum of (i) Daily Simple SOFR and (ii) the Term SOFR Adjustment; or
(b) for Revolving Credit Loans denominated in any currency other than Dollars, or if the Administrative Agent is unable to determine Daily Simple SOFR for the purposes of clause (a) above, then the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities and (ii) the related Revolving Credit Facility Benchmark Replacement Adjustment.
If the Revolving Credit Facility Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the Floor, the Revolving Credit Facility Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Revolving Credit Facility Benchmark Replacement Adjustment” means, with respect to any replacement of any then-current Revolving Credit Facility Benchmark with an Unadjusted Benchmark Replacement, 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 Borrower 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 Revolving Credit Facility 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 Revolving Credit Facility Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable currency at such time.
“Revolving Credit Facility Benchmark Replacement Conforming Changes” means, with respect to either the use or administration of an initial Revolving Credit Facility Benchmark or the use, administration, adoption or implementation of any Revolving Credit Facility Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate” (if applicable), the definition of “Business Day,” the definition of “SONIA 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 3.04 and other technical, administrative or operational matters) that the Administrative Agent decides 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
AMERICAS/2023410772.1 2023410772.9 58 Credit Agreement
administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Revolving Credit Facility Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Revolving Credit Facility Benchmark for any currency:
(a) in the case of clause (a) or (b) of the definition of “Revolving Credit Facility 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 Revolving Credit Facility Benchmark (or such component thereof); or
(b) in the case of clause (c) of the definition of “Revolving Credit Facility Benchmark Transition Event”, the first date on which such Revolving Credit Facility Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Revolving Credit Facility 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 Revolving Credit Facility Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, the “Revolving Credit Facility Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Revolving Credit Facility Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Revolving Credit Facility Benchmark (or the published component used in the calculation thereof).
“Revolving Credit Facility Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Revolving Credit Facility Benchmark:
(a) a public statement or publication of information by or on behalf of the administrator of such Revolving Credit Facility 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 Revolving Credit Facility 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 Revolving Credit Facility Benchmark (or such component thereof);
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(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Revolving Credit Facility Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Revolving Credit Facility Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Revolving Credit Facility Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Revolving Credit Facility Benchmark (or such component), which states that the administrator of such Revolving Credit Facility Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Revolving Credit Facility 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 Revolving Credit Facility Benchmark (or such component thereof); or
(c) a public statement or publication of information by the regulatory supervisor for the administrator of such Revolving Credit Facility Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Revolving Credit Facility Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
For the avoidance of doubt, a “Revolving Credit Facility Benchmark Transition Event” will be deemed to have occurred with respect to any Revolving Credit Facility Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Revolving Credit Facility Benchmark (or the published component used in the calculation thereof).
“Revolving Credit Facility Benchmark Unavailability Period” means, the period (if any) (a) beginning at the time that a Revolving Credit Facility Benchmark Replacement Date has occurred if, at such time, no Revolving Credit Facility Benchmark Replacement has replaced the then-current Revolving Credit Facility Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 1.13 and (b) ending at the time that a Revolving Credit Facility Benchmark Replacement has replaced the then-current Revolving Credit Facility Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 1.13.
“Revolving Credit Lender” means, at any time, the collective reference to the Dollar Revolving Credit Lenders, the Euro Revolving Credit Lenders and the Sterling Revolving Credit Lenders.
“Revolving Credit Loan” means the collective reference to the Dollar Revolving Credit Loans, the Euro Revolving Credit Loans and the Sterling Revolving Credit Loans, in each case including, for the avoidance of doubt, any Loans made pursuant to the Fifth Amendment Revolving Commitments, the Seventh Amendment Revolving Commitments and the Eleventh Amendment Revolving Commitments.
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“Revolving Credit Note” means a promissory note of the Borrower payable to any Revolving Credit Lender or its registered assigns, in substantially the form of Exhibit C-2 hereto, as amended by the Tenth Amendment, evidencing the aggregate indebtedness of the Borrower to such Revolving Credit Lender resulting from the Revolving Credit Loans made by such Revolving Credit Lender to the Borrower.
“RFR” means, for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, (a) Dollars, Adjusted Term SOFR and (b) Sterling, Adjusted Daily Simple SONIA.
“RFR Borrowing” means, as to any Revolving Credit Borrowing, the RFR Loans comprising such Borrowing.
“RFR Business Day” means, for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, (a) Dollars, a U.S. Government Securities Business Day, and (b) Sterling, a SONIA Business Day.
“RFR Loan” means a SONIA Daily Simple Loan or a Term SOFR Loan, as the context may require. For the avoidance of doubt, as of the Eleventh Amendment Effective Date, only Revolving Credit Loans may be RFR Loans.
“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor thereto.
“Sanction” means any sanction administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Second Amendment” means that certain Amendment No. 2 to Credit Agreement, dated as of December 11, 2013, among the Original BV Borrower, the Original US Borrower, the Parent, the other Guarantors party thereto, Morgan Stanley Senior Funding, Inc., as sole lead arranger and bookrunner and as the Administrative Agent, and certain Lenders party thereto.
“Second Amendment Effective Date” means the date on which all of the conditions contained in Section 3 of the Second Amendment have been satisfied or waived by the Administrative Agent.
“Second Lien Intercreditor Agreement” means a “junior lien” intercreditor agreement among the Collateral Agent and one or more Senior Representatives for holders of Permitted Junior Secured Refinancing Debt in form and substance reasonably satisfactory to the Collateral Agent.
“Secured Hedge Agreement” means any Swap Contract permitted under Article 7 that is entered into by and between any Loan Party and any Hedge Bank.
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“Secured Hedge Obligations” means any obligation (other than Excluded Swap Obligations) arising under a Secured Hedge Agreement.
“Secured Obligations” has the meaning specified in the Domestic Security Agreement.
“Secured Parties” means, collectively, the Administrative Agent, the Lenders, Affiliates of the Lenders in the case of Cash Management Obligations, the Hedge Banks, the Bilateral Providers and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Article 9.
“Securitization Assets” means any accounts receivable or other revenue streams subject to a Qualified Securitization Financing.
“Securitization Fees” means reasonable distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Securitization Subsidiary in connection with any Qualified Securitization Financing.
“Securitization Financing” means any transaction or series of transactions that may be entered into by STBV or any of its Subsidiaries pursuant to which STBV or any of its Subsidiaries may sell, convey or otherwise transfer to (a) a Securitization Subsidiary (in the case of a transfer by STBV or any of its Subsidiaries) and (b) any other Person (in the case of a transfer by a Securitization Subsidiary), or may grant a security interest in, any Securitization Assets (whether now existing or arising in the future) of STBV or any of its Subsidiaries, and any assets related thereto including, without limitation, all collateral securing such Securitization Assets, all contracts and all guarantees or other obligations in respect of such Securitization Assets, proceeds of such Securitization Assets and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving Securitization Assets and any Swap Contracts entered into by STBV or any such Subsidiary in connection with such Securitization Assets.
“Securitization Repurchase Obligation” means any obligation of a seller of Securitization Assets in a Qualified Securitization Financing to repurchase Securitization Assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including, without limitation, as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, off set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
“Securitization Subsidiary” means any Subsidiary of the Company (or another Person) formed for the purposes of engaging in one or more Qualified Securitization Financings and other activities reasonably related thereto.
“Security Agreement” means, collectively, the Domestic Security Agreement, the Dutch Security Documents, the Foreign Security Agreements, the Intellectual Property Security Agreements and each other Collateral Document executed and delivered pursuant to Section 4.01, Section 6.12 and Section 6.14, each in form and substance reasonably acceptable to the Administrative Agent, to secure the Obligations of each Loan Party under its respective Loan Documents.
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“Security Agreement Supplement” has the meaning specified in the applicable Security Agreement, if applicable.
“Senior Notes” means, collectively, the 2023 Senior Notes, the 2024 Senior Notes, the 2025 Senior Notes, the 2026 Senior Notes, the 2029 Senior Notes, the 2030 Senior Notes, and the 2031 Senior Notes.
“Senior Note Documents” means the Senior Notes, the Senior Note Indentures, and all other documents executed and delivered with respect to any of the Senior Notes or the Senior Note Indentures.
“Senior Note Indentures” means, collectively, (i) the indenture dated as of April 17, 2013, pursuant to which the 2023 Senior Notes were issued, (ii) the indenture dated as of October 14, 2014, pursuant to which the 2024 Senior Notes were issued, (iii) the indenture dated as of March 26, 2015, pursuant to which the 2025 Senior Notes were issued, (iv) the indenture dated as of November 27, 2015, pursuant to which the 2026 Senior Notes were issued, (v) the indenture dated as of March 29, 2021, pursuant to which the 2029 Senior Notes were issued, (vi) the indenture dated as of the Tenth Amendment Effective Date, pursuant to which the 2030 Senior Notes were issued, and (vii) the indenture dated as of the August 17, 2020, pursuant to which the 2031 Senior Notes were issued.
“Senior Notes Financing Obligations” means any Indebtedness obligations of STBV or any of its Restricted Subsidiaries in respect of any Senior Notes or any other similar unsecured debt financing in an aggregate principal amount greater than the Threshold Amount in the form of senior notes issued by any Loan Party.
“Senior Representative” means, with respect to any series of Permitted Pari Passu Secured Refinancing Debt or Permitted Junior Secured Refinancing Debt, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.
“Senior Secured Net Leverage Ratio” means, with respect to the Borrower Parties on a consolidated basis, as of the end of any fiscal quarter of STBV for the Test Period ending on such date, the ratio of (a) Adjusted Consolidated Funded Indebtedness of the Borrower Parties, excluding any Indebtedness consisting of obligations under or in respect of Securitization Financings or that is secured by a lien that is subordinated to the Facilities or that is unsecured or expressly subordinated in right of payment to the Facilities (net of Cash on Hand) on the last day of such period to (b) Consolidated EBITDA of the Borrower Parties for such period.
“Seventh Amendment” means that certain Amendment No. 7 to Credit Agreement, dated as of September 29, 2015, among the Original BV Borrower, the Original US Borrower, the Parent, the other Guarantors party thereto, Morgan Stanley Senior Funding, Inc., as the Administrative Agent and each Revolving Credit Lender party thereto.
“Seventh Amendment Effective Date” means the date on which all of the conditions contained in Section 4 of the Seventh Amendment have been satisfied or waived by the Administrative Agent.
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“Seventh Amendment Revolving Commitments” has the meaning given in the recitals to the Seventh Amendment.
“Sixth Amendment” means that certain Amendment No. 6 to Credit Agreement, dated as of May 11, 2015, among the Original BV Borrower, the Original US Borrower, the Parent, Morgan Stanley Senior Funding, Inc., as administrative agent, Morgan Stanley Senior Funding, Inc. and Barclays Bank PLC, as joint lead arrangers and joint bookrunners, and certain Lenders party thereto.
“Sixth Amendment Effective Date” means the date on which all of the conditions contained in Section 4 of the Sixth Amendment have been satisfied or waived by the Administrative Agent.
“Sixth Amendment Term Loans” has the meaning given to such term in the recitals of the Sixth Amendment.
“SOFR” with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark, (or a successor administrator) on the Federal Reserve Bank of New York’s Website
“Solicited Discounted Prepayment Notice” means a written notice of any Loan Party or any Subsidiary of a Loan Party of Solicited Discounted Prepayment Offers made pursuant to Section 2.03(a)(iv)(D) substantially in the form of Exhibit N.
“Solicited Discounted Prepayment Offer” means the irrevocable written offer by each Lender, substantially in the form of Exhibit P, submitted following the Administrative Agent’s receipt of a Solicited Discounted Prepayment Notice.
“Solicited Discounted Prepayment Amount” has the meaning specified in Section 2.05(a)(iv)(D)(1).
“Solicited Discounted Prepayment Response Date” has the meaning specified in Section 2.05(a)(iv)(D)(1).
“Solicited Discount Proration” has the meaning specified in Section 2.05(a)(iv)(D)(3).
“Solvent” and “Solvency” mean, with respect to any Person or group of Persons taken together as a consolidated group on any date of determination, that on such date (a) the fair value of the property of such Person or group is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person or group, (b) the present fair salable value of the assets of such Person or group is not less than the amount that will be required to pay the probable liability of such Person or group on its debts as they become absolute and matured, (c) such Person or group does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s or group’s ability to generally pay such debts and liabilities as they mature and (d) such Person or group is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s or group’s property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
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“SONIA” means a rate equal to the Sterling Overnight Index Average as administered by the SONIA Administrator.
“SONIA Adjustment” means a percentage equal to 0.0326% (3.26 basis points) per annum.
“SONIA Administrator” means the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
“SONIA Administrator’s Website” means the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time.
“SONIA Business Day” means any day that is not a Saturday, Sunday or other day on which banks are closed for general business in London.
“SONIA Daily Simple Loan” means any Revolving Credit Loan that bears interest at a rate based on the applicable Adjusted Daily Simple SONIA for Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to Sterling.
“SPC” has the meaning specified in Section 10.07(g).
“Specified Asset Sale” has the meaning specified in Section 2.05(b)(vi).
“Specified Discount” has the meaning specified in Section 2.05(a)(iv)(B)(1).
“Specified Discount Prepayment Amount” has the meaning specified in Section 2.05(a)(iv)(B)(1).
“Specified Discount Prepayment Notice” means a written notice of the Borrower Offer of Specified Discount Prepayment made pursuant to Section 2.05(a)(iv)(B) substantially in the form of Exhibit L.
“Specified Discount Prepayment Response” means the irrevocable written response by each Lender, substantially in the form of Exhibit M, to a Specified Discount Prepayment Notice.
“Specified Discount Prepayment Response Date” has the meaning specified in Section 2.05(a)(iv)(B)(1).
“Specified Discount Proration” has the meaning specified in Section 2.05(a)(iv)(B)(3).
“Specified Event of Default” means any Event of Default under Section 8.01(a), (f) or (g).
“Specified Foreign Guarantor” means each Foreign Guarantor except STBV.
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“Specified Junior Financing Obligations” means any obligations of STBV or any of its Restricted Subsidiaries in respect of any Junior Financing.
“Specified RCF Obligations” means any and all Obligations of the Borrower and/or any other Loan Party constituting or relating to (A) the principal of, and interest or premium owed on, the Revolving Credit Loans or any Swingline Loans, (B) any Letter of Credit (including any reimbursement or indemnity obligations relating thereto) and/or (C) the fees owed under Sections 2.03(i) and (j) and 2.09(a).
“Specified RCF Obligations Reinstatement Event” has the meaning specified in Section 10.25(c).
“Specified Transaction” means any (a) Disposition of all or substantially all the assets of or all the Equity Interests of any Restricted Subsidiary or of any division or product line of STBV or any of its Restricted Subsidiaries, (b) Permitted Acquisition, (c) designation of any Restricted Subsidiary as an Unrestricted Subsidiary, or of any Unrestricted Subsidiary as a Restricted Subsidiary, in each case in accordance with Section 6.15 or (d) the proposed incurrence of Indebtedness or making of a Restricted Payment in respect of which compliance with the Senior Secured Net Leverage Ratio or the First Lien Net Leverage Ratio, as applicable, is by the terms of this Agreement required to be calculated on a Pro Forma Basis.
“Standard Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by STBV or any Subsidiary of STBV which STBV or such Subsidiary has determined in good faith to be customary in a Securitization Financing, including, without limitation, those relating to the servicing of the assets of a Securitization Subsidiary, it being understood that any Securitization Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking.
“Sterling” and “£” mean the lawful currency of the United Kingdom.
“Sterling Letter of Credit” means a Letter of Credit denominated in Sterling.
“Sterling Loan” means a Loan, other than a Revolving Credit Loan, that is a Eurodollar Rate Loan and is made in Sterling pursuant to the applicable Committed Loan Notice.
“Sterling Revolving Credit Borrowing” means a borrowing consisting of simultaneous Sterling Revolving Credit Loans of the same type made by each of the Sterling Revolving Credit Lenders pursuant to Section 2.01(b).
“Sterling Revolving Credit Commitment” means, as to each Sterling Revolving Credit Lender, its obligation to (a) make Sterling Revolving Credit Loans to the Borrower pursuant to Section 2.01(b), (b) purchase participations in L/C Obligations and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “Dollar Amount of Sterling Revolving Credit Commitment” or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate Dollar Amount of Sterling Revolving Credit Commitments of all Sterling Revolving Credit Lenders shall be $750,000,000 on the Eleventh Amendment Effective Date, as such amount may be adjusted from time to time in accordance with the terms of this Agreement.
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“Sterling Revolving Credit Exposure” means, as to each Sterling Revolving Credit Lender, the sum of the outstanding principal amount of such Sterling Revolving Credit Lender’s Sterling Revolving Credit Loans and its Pro Rata Share of the L/C Obligations at such time.
“Sterling Revolving Credit Facility” means, at any time, the aggregate Dollar Amount of the Sterling Revolving Credit Commitments at such time. The Sterling Revolving Credit Facility is part of, not in addition to, the Revolving Credit Facility.
“Sterling Revolving Credit Loan” has the meaning specified in Section 2.01(b).
“Sterling Revolving Credit Lender” means, at any time, any Lender that has a Sterling Revolving Credit Commitment at such time.
“Sterling Sublimit” means an amount equal to the lesser of (a) $750,000,000 and (b) the aggregate Dollar Amount of the Sterling Revolving Credit Commitments. The Sterling Sublimit is part of, not in addition to, the Revolving Credit Facility.
“Subsequent Transaction” has the meaning specified in Section 1.111.12.
“Subsidiary” of a Person means a corporation, partnership, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of STBV.
“Supported QFC” has the meaning specified in Section 10.28.
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward contracts, future contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, repurchase agreements, reverse repurchase agreements, sell buy back and buy sell back agreements, and securities lending and borrowing agreements or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
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“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.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).
“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.
“Swing Line Facility” means the revolving credit facility made available by the Swing Line Lender pursuant to Section 2.04.
“Swing Line Lender” means the Initial Swing Line Lender in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
“Swing Line Loan” has the meaning specified in Section 2.04(a).
“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit B.
“Swing Line Note” means a promissory note of the Borrower payable to the Swing Line Lender or its registered assigns, in substantially the form of Exhibit C hereto, as amended by the Tenth Amendment, evidencing the aggregate indebtedness of the Borrower to such Swing Line Lender resulting from the Swing Line Loans made by the Swing Line Lender.
“Swing Line Sublimit” means $75,000,000. The Swing Line Sublimit is part of, and not in addition to, the Revolving Credit Facility.
“Syndication Agent” means Barclays Bank PLC, as syndication agent under this Agreement.
“Synthetic Indebtedness” means, with respect to any Person as of any date of determination thereof, all Obligations of such Person in respect of transactions entered into by such Person that are intended to function primarily as a borrowing of funds (including, without limitation, any minority interest transactions that function primarily as a borrowing) but are not otherwise included in the definition of “Indebtedness” or as a liability on the consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP.
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“Target” has the meaning specified in the preliminary statements to this Agreement.
“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007.
“TARGET Day” means any day on which TARGET2 is open for the settlement of payments in Euros.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Tenth Amendment” means that certain Amendment No. 10 to Credit Agreement, dated as of September 20, 2019, among the Borrower, the Parent, the other Guarantors party thereto, Morgan Stanley Senior Funding, Inc., as Administrative Agent, the L/C Issuer and the Swingline Lender, and the Lenders party thereto.
“Tenth Amendment Effective Date” means the date on which all of the conditions contained in Section 4 of the Tenth Amendment have been satisfied or waived by the Administrative Agent.
“Tenth Amendment Term Commitment” means, as to each Lender, its obligation to make a Tenth Amendment Term Loan to the Borrower pursuant to Section 2.01(a) in an aggregate amount not to exceed the amount set forth for such Lender in the Tenth Amendment. On the Tenth Amendment Effective Date, $463,041,096.90 of Tenth Amendment Term Commitments are available to the Borrower.
“Tenth Amendment Term Loans” has the meaning given to such term in Section 2.01(a).
“Term Borrowing” means, as of a borrowing consisting of simultaneous Term Loans of the same Type (if applicable) and, in the case of Eurodollar RateTerm SOFR Loans, having the same Interest Period made by each of the Term Lenders pursuant to Section 2.01(a).
“Term Commitment” means, as of the Tenth Amendment Effective Date, a Tenth Amendment Term Commitment.
“Term Lender” means, at any time, any Lender that has a Term Commitment or holds a Term Loan at such time.
“Term Loan Facility” means the Term Loans or the Additional Term Loans, as the context may require.
“Term Loan Facility Refinancing” means the refinancing or repayment in full of the Tenth Amendment Term Loans with Indebtedness that has a maturity date on or after June 23, 2027.
“Term Loans” has the meaning specified in Section 2.01(a).
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“Term Note” means a promissory note of the Borrower payable to any Term Lender or its registered assigns, in substantially the form of Exhibit C-1 hereto, as amended by the Tenth Amendment, evidencing the aggregate indebtedness of the Borrower to such Term Lender resulting from the Term Loans made by such Term Lender.
“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) RFR 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. (New York City 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 Revolving Credit Facility 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 RFR 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 that is a Revolving Credit Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “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. (New York City time) on any 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 Revolving Credit Facility 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) RFR Business Days prior to such Base Rate Term SOFR Determination Day.
“Term SOFR Adjustment” means, for any calculation with respect to a Base Rate Loan or a Term SOFR Loan, (a) with respect to the Revolving Credit Loans, 0.10% per annum and (b) with respect to the Term Loans, 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).
“Term SOFR Borrowing” means, as to any Revolving Credit Borrowing, the Term SOFR Loans comprising such Borrowing.
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“Term SOFR Loan” means a Revolving Credit Loan that bears interest at a rate based on Adjusted Term SOFR, other than pursuant to clause (v) of the definition of “Base Rate”.
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Test Period” means, at any date of determination, the most recently completed four consecutive fiscal quarters of STBV ending on or prior to such date.
“Third Amendment” means that certain Amendment No. 3 to Credit Agreement, dated as of October 14, 2014, among the Original BV Borrower, the Original US Borrower, the Parent, the other Guarantors party thereto, Morgan Stanley Senior Funding, Inc., as administrative agent, Barclays Bank PLC, Morgan Stanley Senior Funding, Inc., Royal Bank of Canada and Goldman Sachs Bank USA, as joint lead arrangers and joint bookrunners, and certain Lenders party thereto.
“Third Amendment Effective Date” has the meaning given to such term in Section 7 of the Third Amendment.
“Threshold Amount” means $50,000,000.
“Total Leverage Ratio” means, with respect to the Borrower Parties on a consolidated basis, as of the end of any fiscal quarter of STBV for the Test Period ending on such date, the ratio of (a) Adjusted Consolidated Funded Indebtedness (net of Cash on Hand) of the Borrower Parties on the last day of such period to (b) Consolidated EBITDA of the Borrower Parties for such period.
“Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.
“Transactions” means, collectively, (a) the execution and delivery and performance by the Loan Parties of each Loan Document to which they are a party executed and delivered or to be executed and delivered on or prior to the Closing Date, and, in the case of the Original Borrowers, the making of the initial Borrowings hereunder, (b) the execution, delivery and performance by the Loan Parties of the Senior Note Documents (as defined herein on the Closing Date) to which they are a party and, in the case of the Original BV Borrower, the issuance of the Senior Notes (as defined herein on the Closing Date), (c) the repayment on the Closing Date of the loans outstanding under the Existing Credit Agreement and of the Existing Senior Notes and Existing Senior Subordinated Notes with the proceeds of the Loans made on the Closing Date and the Senior Notes (as defined herein on the Closing Date), (d) the execution, delivery and performance of the Tenth Amendment and all Loan Documents entered into in connection therewith and the repayment of the Sixth Amendment Term Loans with the proceeds of the Tenth Amendment Term Loans, (e) the consummation of any other transactions in connection with the foregoing, and (f) the payment of the fees and expenses incurred in connection with any of the foregoing.
“Twelfth Amendment” means that certain Amendment No. 12 to Credit Agreement, dated as of January 4, 2023, among the Borrower, the Parent, the other Guarantors party thereto and Morgan Stanley Senior Funding, Inc., as the Administrative Agent.
“Type” means (i) with respect to a Loan, other than a Revolving Credit Loan, denominated in Dollars, its character as a Base Rate Loan or a Eurodollar Rate Loan or (ii) with
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respect to a Revolving Credit Loan denominated in Dollars, its character as a Base Rate Loan or a Term SOFR Loan.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form 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.
“Ultimate Parent” means Sensata Technologies Holding plc and any successor or assign thereof (including any such successor or assign pursuant to a change of the Ultimate Parent’s jurisdiction of organization from the United Kingdom to another jurisdiction).
“Ultimate Parent Entity” means each of Sensata Technologies Intermediate UK Limited and Sensata Technologies Intermediate Holding B.V., and any successor or assign thereof, and including any other intermediate holding company that is a Subsidiary of the Ultimate Parent and a direct or indirect parent company of the Parent.
“Unadjusted Benchmark Replacement” means (i) the Benchmark Replacement excluding the Benchmark Replacement Adjustment or (ii) in the case of a Revolving Credit Facility Benchmark Replacement Adjustment, the Revolving Credit Facility Benchmark Replacement excluding the Revolving Credit Facility Benchmark Replacement Adjustment.
“Unfunded Advances/Participations” means (a) with respect to the Administrative Agent, the aggregate amount, if any (i) made available to the Borrower on the assumption that each Appropriate Lender has made its Pro Rata Share of the applicable Borrowing available to the Administrative Agent and (ii) with respect to which a corresponding amount shall not in fact have been made available to the Administrative Agent by any such Lender, (b) with respect to the Swing Line Lender, the aggregate amount, if any, of participations in respect of any outstanding Swing Line Loan that shall not have been funded by the Appropriate Lenders in accordance with Section 2.04(c) and (c) with respect to the L/C Issuer, the aggregate amount of L/C Borrowings.
“Uniform Commercial Code” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to the creation or perfection of a security interest in any item or items of Collateral.
“United States” and “US” mean the United States of America.
“Unreimbursed Amount” has the meaning set forth in Section 2.03(c)(i).
“Unrestricted Subsidiary” means any Subsidiary of STBV designated by the board of directors of STBV as an Unrestricted Subsidiary pursuant to Section 6.15 subsequent to the date hereof.
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“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 Associate recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Person” means a United States person within the meaning of Section 7701(a)(30) of the Code.
“U.S. Special Resolution Regimes” has the meaning specified in Section 10.28.
“Voting Stock” means, as to any Person, the Equity Interests of such Person that are at the time ordinarily entitled to vote in the election of the board of directors (or board of managers) of such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.
“Withholding Agent” means the Borrower and the Administrative Agent.
“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 such 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.
SECTION 1.02.Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a)The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b)(i) The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears.
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(iii) The term “including” is by way of example and not limitation.
(c)In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”
(d)Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
(e)Any definition of or reference to any Loan Document or any other agreement, instrument or document herein shall be construed as referring to such Loan Document or other agreement, instrument or document as from time to time amended, amended and restated, supplemented or otherwise modified (including pursuant to any permitted refinancing, extension, renewal, replacement, restructuring or increase (in each case, whether pursuant to one or more agreements or with different lenders or different agents), but subject to any restrictions on such amendments, supplements or modifications set forth herein).
(f)Any reference to a Person shall be construed to include such Person’s successors and permitted assigns.
SECTION 1.03.Accounting Terms. (a) All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, as in effect from time to time, except as otherwise specifically prescribed herein. All financial ratios calculated pursuant to Section 7.11 shall be calculated in a manner consistent with that used in preparing the Historical Financial Statements for the fiscal year ended December 31, 2010, except as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation of any financial ratio set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent and the Borrower shall negotiate in good faith to amend such ratio to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders and Borrower); provided that, until so amended, (i) such ratio shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders a written reconciliation in form and substance reasonably satisfactory to the Administrative Agent, between calculations of such ratio made before and after giving effect to such change in GAAP.
(c) Notwithstanding anything to the contrary contained herein, financial ratios and other financial calculations pursuant to this Agreement shall, following any Specified Transaction, be calculated on a Pro Forma Basis. In addition, the financial ratios and related definitions set forth in the Loan Documents shall be computed to exclude the application of ASC 480, ASC 815, ASC 805, and ASC 718 (to the extent these pronouncements under ASC 718 result in recording an equity award as a liability on the consolidated balance sheet of STBV and its Restricted Subsidiaries in the circumstance where, but for the application of the pronouncements, such award would have been classified as equity).
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(d) Notwithstanding any provision to the contrary herein or in any other Loan Document, all leases of any Person that are or would be characterized as operating leases in accordance with GAAP immediately prior to December 31, 2018 (whether or not such operating leases were in effect on such date) shall, in the sole discretion of the Borrower, continue to be accounted for as operating leases (and not as Capitalized Leases) for all purposes of this Agreement and the other Loan Documents, including for the purposes of determining compliance with any financial covenants and of all other pertinent financial and accounting determinations, regardless of any change in GAAP (pursuant to ASC 842 or otherwise) following the date that would otherwise require such leases to be recharacterized as Capitalized Leases.
SECTION 1.04.Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
SECTION 1.05.References to Agreements and Laws. Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.
SECTION 1.06.Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
SECTION 1.07.Timing of Payment or Performance. When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment (other than as described in the definition of Interest Period) or performance shall extend to the immediately succeeding Business Day and such extension of time shall be reflected in computing interest or fees, as the case may be.
SECTION 1.08.Currency Equivalents Generally. (a) Any amount specified in this Agreement (other than in Articles 2, 9 and 10 or as set forth in paragraph (b) of this Section) or any of the other Loan Documents to be in Dollars shall also include the equivalent of such amount in any currency other than Dollars, such equivalent amount to be determined at the rate of exchange quoted by the Reuters World Currency Page for the applicable currency at 11:00 a.m. (London time) on such day (or, in the event such rate does not appear on any Reuters World Currency Page, by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent and the Borrower, or, in the absence of such agreement, such rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency exchange operations in respect of such currency are then being conducted, at or about 10:00 a.m. (New York City time) on such date for the purchase of Dollars for delivery two Business Days later); provided that in determining compliance with Sections 7.01, 7.02 and 7.03 with respect to any amount of Indebtedness or Investment in a currency other than Dollars, no Default shall be deemed to have occurred solely as a result of changes in rates of exchange occurring after the time such Indebtedness or Investment is incurred; provided that, for the avoidance of doubt, the foregoing
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provisions of this Section 1.08 shall otherwise apply to such Sections, including with respect to determining whether any Indebtedness or Investment may be incurred at any time under such Sections.
(b) For purposes of determining compliance under Sections 7.02, 7.05, 7.06 and 7.11, any amount in a currency other than Dollars will be converted to Dollars based on the average Exchange Rate for such currency for the most recent twelve-month period immediately prior to the date of determination determined in a manner consistent with that used in calculating EBITDA for the applicable period; provided, however, that the foregoing shall not be deemed to apply to the determination of any amount of Indebtedness. For purposes of determining compliance with Section 7.11, the Dollar Amount of each Euro Loan and each Sterling Revolving Credit Loan and the equivalent in Dollars of any other Indebtedness denominated in a currency other than Dollars will reflect the currency translation effects, determined in accordance with GAAP, of Swap Contracts for currency exchange risks with respect to the applicable currency in effect on the date of determination of the Dollar Amount of such Euro Loan or Sterling Revolving Credit Loan (as applicable) or the Dollar equivalent of such other Indebtedness.
(c) Wherever in this Agreement in connection with a Revolving Credit Borrowing, conversion, continuation or prepayment of an SONIA Daily Simple Loan or EURIBOR Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Borrowing, SONIA Daily Simple Loan, EURIBOR Loan or Letter of Credit is denominated in a currency other than Dollars, such amount shall be the Dollar equivalent amount thereof, as determined by the Administrative Agent or the applicable Issuing Bank, as the case may be.
SECTION 1.09.Certain Calculations. Notwithstanding anything to the contrary herein, from the Closing Date until the first delivery of financial statements pursuant to Section 6.01, the calculation of the Senior Secured Net Leverage Ratio for any purpose hereunder shall be determined as of the date of the then most recent financial statements internally available to STBV as of such date of determination, subject to all pro forma adjustments, if any, required in accordance with and as set forth in the applicable provision pursuant to which such Senior Secured Net Leverage Ratio is so calculated.
SECTION 1.10.Delaware LLC Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.
SECTION 1.11.Effect of a Benchmark Transition EventReplacement Setting.
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(a) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace the Benchmark Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrower 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. Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of the Benchmark Rate with a Benchmark Replacement pursuant to this Section 1.11 will occur prior to the applicable Benchmark Transition Start Date.
(b) Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make, in consultation with the Borrower, Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(c) Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 1.11, 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, 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 hereto, except, in each case, as expressly required pursuant to this Section 1.11.
(d) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During any Benchmark Unavailability Period, the component of Base Rate based upon the Eurodollar Rate will not be used in any determination of the Base Rate.
SECTION 1.12. Limited Condition Transactions
. Notwithstanding anything to the contrary in this Agreement, in connection with any action being taken in connection with a Limited Condition Transaction, for purposes of:
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(a) determining compliance with any provision of this Agreement which requires the calculation of any financial ratio or test, including any ratio;
(b) testing availability under baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated EBITDA); or
(c) determining other compliance with this Agreement, including (i) the accuracy of any representation or warranty (other than customary “specified representations” and in the case of any Permitted Acquisition that is a Limited Condition Transaction, those representations of any applicable seller or target company included in the relevant acquisition agreement for such Limited Condition Transaction that are material to the interests of the interests of the Lenders and only to the extent the relevant acquirer has the right to terminate its obligations under such acquisition agreement as a result of the inaccuracy of such representation (which representations for the avoidance of doubt, shall be required to be accurate as of the date of the consummation of any Limited Condition Acquisition)) or (ii) whether any Default or Event of Default (other than a Specified Event of Default, the absence of which, for the avoidance of doubt, shall be required on the date of any Limited Condition Transaction) has occurred, is continuing or would result therefrom or other compliance requirement;
in each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder (the “LCT Test Date”) shall be made at the time of (or, in the case of any calculation of any financial ratio or test, at the time of the most recently ended Test Period) either (x) the execution of the definitive agreement with respect to such Limited Condition Transaction, (y) the public announcement of an intention to make an offer in respect of the target of such Limited Condition Transaction or (z) the consummation of such Limited Condition Transaction, and if, for the Limited Condition Transaction (and the other transactions to be entered into in connection therewith), the Borrower or the Person subject to such Limited Condition Transaction would have been permitted to take such action on the LCT Test Date in compliance with such ratio, test, basket or other compliance requirement (after giving effect to such Limited Condition Transaction on a Pro Forma Basis), such ratio, test, basket or other compliance requirement shall be deemed to have been complied with on the date such action or transaction is actually taken. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date would have failed to have been complied with as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA of STBV or the Person subject to such Limited Condition Transaction, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have failed to have been complied with as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any calculation of any ratio, test or basket availability with respect to the incurrence of Indebtedness or Liens, the making of Restricted Payments, any Permitted Acquisition or permitted Investment, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Borrower, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary (each, a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement, public announcement or irrevocable notice for such Limited Condition Transaction is terminated, revoked or expires without consummation of such Limited Condition Transaction, for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such ratio, test or basket shall be required to be satisfied on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of the use of proceeds thereof) have been consummated.
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SECTION 1.13. Revolving Credit Facility Benchmark Replacement Setting
(a)Revolving Credit Facility Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, if a Revolving Credit Facility Benchmark Transition Event and its related Revolving Credit Facility Benchmark Replacement Date have occurred prior to any setting of any Revolving Credit Facility Benchmark Rate, then (x) if a Revolving Credit Facility Benchmark Replacement is determined in accordance with clause (a) of the definition of “Revolving Credit Facility Benchmark Replacement” for such Revolving Credit Facility Benchmark Replacement Date, such Revolving Credit Facility Benchmark Replacement will replace such Revolving Credit Facility Benchmark Rate for all purposes hereunder and under any Loan Document in respect of such Revolving Credit Facility Benchmark Rate setting and subsequent Revolving Credit Facility Benchmark Rate settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Revolving Credit Facility Benchmark Replacement is determined in accordance with clause (b) of the definition of “Revolving Credit Facility Benchmark Replacement” for such Revolving Credit Facility Benchmark Replacement Date, such Revolving Credit Facility Benchmark Replacement will replace such Revolving Credit Facility Benchmark Rate for all purposes hereunder and under any Loan Document in respect of any Revolving Credit Facility Benchmark Rate setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Revolving Credit Facility Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Revolving Credit Facility Benchmark Replacement from Revolving Credit Lenders comprising the Required Lenders. If the Revolving Credit Facility Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a monthly basis.
(b)(b) Revolving Credit Facility Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Revolving Credit Facility Benchmark Replacement, the Administrative Agent will have the right (in consultation with the Borrower) to make Revolving Credit Facility Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Revolving Credit Facility Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(c)(c) Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Revolving Credit Lenders of (i) the implementation of any Revolving Credit Facility Benchmark Replacement and (ii) the effectiveness of any Revolving Credit Facility Benchmark Replacement Conforming Changes in connection with the use, administration, adoption or implementation of a Revolving Credit Facility Benchmark Replacement. The Administrative Agent will notify the Borrower of (x) the removal or reinstatement of any tenor of a Revolving Credit Facility Benchmark Rate pursuant to Section 1.131.11(d) and (y) the commencement of any Revolving Credit Facility Benchmark Unavailability Period. 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 1.131.11, 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 Loan Document, except, in each case, as expressly required pursuant to this Section 1.131.11.
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(d)(d) Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Revolving Credit Facility Benchmark Replacement), (i) if any then-current Benchmark Rate is a term rate (including the Term SOFR Reference Rate or EURIBOR) and either (A) any tenor for such Revolving Credit Facility Benchmark Rate 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 Revolving Credit Facility Benchmark Rate has provided a public statement or publication of information announcing that any tenor for such Revolving Credit Facility Benchmark Rate 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 Revolving Credit Facility Benchmark Rate 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 Revolving Credit Facility Benchmark Rate (including a Revolving Credit Facility 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 Revolving Credit Facility Benchmark Rate (including a Revolving Credit Facility Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Revolving Credit Facility Benchmark Rate settings at or after such time to reinstate such previously removed tenor.
(e)(e) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Revolving Credit Facility Benchmark Unavailability Period with respect to a given Revolving Credit Facility Benchmark Rate, (i) the Borrower may revoke any pending request for an RFR Borrowing of, conversion to or continuation of RFR Loans, or a EURIBOR Borrowing of, conversion to or continuation of EURIBOR Loans, in each case, to be made, converted or continued during any Revolving Credit Facility Benchmark Unavailability Period denominated in the applicable currency and, failing that, (A) in the case of any request for any affected Term SOFR Borrowing, if applicable, the Borrower will be deemed to have converted any such request into a request for an Base Rate Borrowing or conversion to Base Rate Loans in the amount specified therein and (B) in the case of any request for any affected RFR Borrowing or EURIBOR Borrowing, in each case, in any currency other than Dollars, if applicable, then such request shall be ineffective and (ii)(A) 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 and (B) any outstanding affected RFR Loans or EURIBOR Loans, in each case, denominated in any currency other than Dollars, at the Borrower’s election, shall either (I) be converted into Base Rate Loans denominated in Dollars (in an amount equal to the Dollar equivalent of such currency) immediately or, in the case of EURIBOR Loans, at the end of the applicable Interest Period or (II) be prepaid in full immediately or, in the case of EURIBOR Loans, at the end of the applicable Interest Period; provided that, with respect to any SONIA Daily Simple Loan, if no election is made by the Borrower by the date that is three (3) Business Days after receipt by the Borrower of such notice, the Borrower shall be deemed to have elected clause (I) above; provided, further that, with respect to any EURIBOR Loan, if no election is made by the Borrower by the earlier of (x) the date that is three (3) Business Days after receipt by the Borrower of such notice and (y) the last day of the current Interest Period for the applicable EURIBOR Loan, the Borrower shall be deemed to have elected clause (I) above. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest (except with respect to any prepayment or conversion of a SONIA Daily Simple Loan) on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 3.05. During a Revolving Credit Facility Benchmark Unavailability Period with respect to any Revolving Credit Facility Benchmark Rate or at any time that a tenor for any then-current Revolving Credit Facility Benchmark Rate is not an Available Tenor, the component of Base Rate based upon the then-current Revolving Credit Facility Benchmark Rate that is the subject
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of such Revolving Credit Facility Benchmark Unavailability Period or such tenor for such Revolving Credit Facility Benchmark Rate, as applicable, will not be used in any determination of Base Rate.
SECTION 1.12.Limited Condition Transactions
. Notwithstanding anything to the contrary in this Agreement, in connection with any action being taken in connection with a Limited Condition Transaction, for purposes of:
(a)determining compliance with any provision of this Agreement which requires the calculation of any financial ratio or test, including any ratio;
(b)testing availability under baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated EBITDA); or
(c)determining other compliance with this Agreement, including (i) the accuracy of any representation or warranty (other than customary “specified representations” and in the case of any Permitted Acquisition that is a Limited Condition Transaction, those representations of any applicable seller or target company included in the relevant acquisition agreement for such Limited Condition Transaction that are material to the interests of the interests of the Lenders and only to the extent the relevant acquirer has the right to terminate its obligations under such acquisition agreement as a result of the inaccuracy of such representation (which representations for the avoidance of doubt, shall be required to be accurate as of the date of the consummation of any Limited Condition Acquisition)) or (ii) whether any Default or Event of Default (other than a Specified Event of Default, the absence of which, for the avoidance of doubt, shall be required on the date of any Limited Condition Transaction) has occurred, is continuing or would result therefrom or other compliance requirement;
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in each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder (the “LCT Test Date”) shall be made at the time of (or, in the case of any calculation of any financial ratio or test, at the time of the most recently ended Test Period) either (x) the execution of the definitive agreement with respect to such Limited Condition Transaction, (y) the public announcement of an intention to make an offer in respect of the target of such Limited Condition Transaction or (z) the consummation of such Limited Condition Transaction, and if, for the Limited Condition Transaction (and the other transactions to be entered into in connection therewith), the Borrower or the Person subject to such Limited Condition Transaction would have been permitted to take such action on the LCT Test Date in compliance with such ratio, test, basket or other compliance requirement (after giving effect to such Limited Condition Transaction on a Pro Forma Basis), such ratio, test, basket or other compliance requirement shall be deemed to have been complied with on the date such action or transaction is actually taken. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date would have failed to have been complied with as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA of STBV or the Person subject to such Limited Condition Transaction, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have failed to have been complied with as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any calculation of any ratio, test or basket availability with respect to the incurrence of Indebtedness or Liens, the making of Restricted Payments, any Permitted Acquisition or permitted Investment, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Borrower, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary (each, a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement, public announcement or irrevocable notice for such Limited Condition Transaction is terminated, revoked or expires without consummation of such Limited Condition Transaction, for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such ratio, test or basket shall be required to be satisfied on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of the use of proceeds thereof) have been consummated.
SECTION 1.13.RatesSECTION 1.14 Rates. With respect to the InterestBenchmark Rates applicable to Revolving Credit Loans only, 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 Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, Adjusted Daily Simple SONIA, Daily Simple SONIA, the EURIBOR Rate or any other Revolving Credit Facility Benchmark Rate, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Revolving Credit Facility Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Revolving Credit Facility Benchmark Replacement), will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, Adjusted Daily Simple SONIA, Daily Simple SONIA, the EURIBOR Rate, such Benchmark or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Revolving Credit Facility Benchmark Replacement Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions that affect the calculation of Base Rate or a Revolving Credit Facility Benchmark Rate, any alternative,
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successor or replacement rate (including any Revolving Credit Facility Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain Base Rate, any Revolving Credit Facility Benchmark Rate, 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.
Article 2
THE COMMITMENTS AND CREDIT EXTENSIONS
SECTION 2.01 The Loans. (a) The Term Borrowing. Subject to the terms and conditions set forth herein, each Lender severally agrees to make to the Borrower a single Dollar Loan on the Tenth Amendment Effective Date (each, a “Tenth Amendment Term Loan” and, collectively, the “Tenth Amendment Term Loans”) in an amount equal to such Lender’s Tenth Amendment Term Commitments as of the Tenth Amendment Effective Date. The Sixth Amendment Term Loans and the Tenth Amendment Term Loans are for purposes of this Agreement, each, a “Term Loan” and, collectively, the “Term Loans”, and from and after the Tenth Amendment Effective Date, all references to a “Term Loan” or to “Term Loans” shall be deemed to refer to Sixth Amendment Term Loans or Tenth Amendment Term Loans, as applicable. On April 1, 2023, all Tenth Amendment Term Loans shall be Term SOFR Loans or Base Rate Loans as selected by the Borrower by advance notice to the Administrative Agent in accordance with Section 2.02.
Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans or Eurodollar RateTerm SOFR Loans, as further provided herein.
(b) The Revolving Credit Borrowings. Subject to the terms and conditions set forth herein, (i) each Dollar Revolving Credit Lender severally agrees to make loans denominated in Dollars to the Borrower as elected by the Borrower pursuant to Section 2.02 (each such loan, a “Dollar Revolving Credit Loan”) from time to time, on any RFR Business Day, or, in the case of a Base Rate Loan, a Business Day, until the Maturity Date during the Revolving Credit Commitment Period, in an aggregate Dollar Amount not to exceed at any time outstanding the amount of such Lender’s Revolving Credit Commitment, (ii) each Euro Revolving Credit Lender severally agrees to make loans denominated in Euros to the Borrower as elected by the Borrower pursuant to Section 2.02 (each such loan, an “Euro Revolving Credit Loan”) from time to time, on any TARGET Day until the Maturity Date, in an aggregate Dollar Amount not to exceed at any time outstanding the amount of such Lender’s Revolving Credit Commitment, and (iii) each Sterling Revolving Credit Lender severally agrees to make loans denominated in Sterling to the Borrower as elected by the Borrower pursuant to Section 2.02 (each such loan, ana “Sterling Revolving Credit Loan”) from time to time, on any RFR Business Day until the Maturity Date, in an aggregate Dollar Amount not to exceed at any time outstanding the amount of such Lender’s Revolving Credit Commitment; provided that after giving effect to any Revolving Credit Borrowing, (i) the aggregate Dollar Amount of the Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such Dollar Amount of the Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans, shall not exceed such Lender’s Revolving
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Credit Commitment, (ii) the aggregate Dollar Amount of Euro Revolving Credit Loans and L/C Obligations in respect of Euro Letters of Credit shall not exceed the Euro Sublimit and (iii) the aggregate Dollar Amount of Sterling Revolving Credit Loans and L/C Obligations in respect of Sterling Letters of Credit shall not exceed the Sterling Sublimit. Within the limits of each Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01(b), prepay under Section 2.05, and reborrow under this Section 2.01(b). Dollar Revolving Credit Loans may be Base Rate Loans or Term SOFR Loans, Euro Revolving Credit Loans must be EURIBOR Loans, and Sterling Revolving Credit Loans must be SONIA Daily Simple Loans, in each case as further provided herein; provided that all Dollar Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type made to the Borrower.
SECTION 2.02 Borrowings, Conversions and Continuations of Loans. (a) Each Term Borrowing, each Revolving Credit Borrowing, each conversion of Term Loans or Dollar Revolving Credit Loans from one Type to the other, and each continuation of Eurodollar RateTerm SOFR Loans and EURIBOR Loans shall be made upon the Borrower’s irrevocable (except as provided in Section 3.02, Section 3.03 and Section 3.04 herein) notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent (x) with respect to any Borrowing on any of the Closing Date, the Second Amendment Effective Date or the Third Amendment Effective Date, not later than 12:00 p.m. (noon) one (1) Business Day before the Closing Date, the Second Amendment Effective Date or the Third Amendment Effective Date, as applicable and (y) with respect to any Borrowing after the Closing Date, (i) not later than 12:00 p.m. (noon) three (3) Business Days prior to the requested date of any Borrowing of Eurodollar Rate Loans, continuation of Eurodollar Rate Loans or any conversion of Base Rate Loans to Eurodollar Rate Loans,Term SOFR Loans or continuation of Term SOFR Loans, (ii) not later than 12:00 p.m. (noon) one (1) Business Day before the requested date of any Borrowing of Base Rate Loans and (iii) not later than 12:00 p.m. (noon) three (3) Business Days prior to the requested date of any Borrowing of Euro Revolving Credit Loans or any continuation of EURIBOR Loans and (iv) not later than 12:00 p.m. (noon) three (3) RFR Business Days before the requested date of any Borrowing of any Sterling Revolving Credit Loans or Dollar Revolving Credit Loans (other than Base Rate Loans), as applicable. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans, EURIBOR Loans andor RFR Loans, shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof (or comparable amounts determined by the Administrative Agent in the case of Euro Loans and Sterling Loans). Except as provided in Section 2.03(c)(i) and Section 2.04(c)(i), each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Term Borrowing, a Dollar Revolving Credit Borrowing, a Euro Revolving Credit Borrowing, a Sterling Revolving Credit Borrowing, a conversion of Term Loans or Dollar Revolving Credit Loans from one Type to the other, or a continuation of Eurodollar RateTerm SOFR Loans or EURIBOR Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day or, in the case of a Revolving Credit Borrowing (other than a Base Rate Loan), conversion or continuation, aan RFR Business Day, as applicable), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Term Loans or Dollar Revolving Credit Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto and (vi) the account of the Borrower to be credited with the proceeds of such Borrowing. If, with respect to Loans denominated in Dollars the Borrower fails to specify a Type of Loan in
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a Committed Loan Notice or fails to give a timely notice requesting a conversion or continuation, then the applicable Term Loans or Dollar Revolving Credit Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans or RFRTerm SOFR Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans, a Borrowing of, conversion to, or continuation of RFR Loans denominated in Dollars,Term SOFR Loans, or a Borrowing of or continuation of EURIBOR Loans, in any such Committed Loan Notice, but fails to specify an Interest Period (or fails to give a timely notice requesting a continuation of EURIBOR Loans denominated in Euros), it will be deemed to have specified an Interest Period of one (1) month. If no currency is specified, the requested Borrowing shall be in Dollars.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Appropriate Lender of the amount of its Pro Rata Share of the applicable Class of Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans or continuation described in Section 2.02(a). In the case of each Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 12:00 p.m. (noon) on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (or, if such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent by wire transfer of such funds in accordance with instructions provided to the Administrative Agent by the Borrower.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan, EURIBOR Loan, SONIA Daily Simple Loan or Term SOFR Loan may be continued or converted only on the last day of an Interest Period, or, in the case of a SONIA Daily Simple Loan, on the applicable Interest Payment Date, for such Eurodollar Rate Loan, EURIBOR Loan, SONIA Daily Simple Loan or Term SOFR Loan, as applicable, unless the Borrower pays the amount due, if any, under Section 3.05 in connection therewith. During the continuance of an Event of Default, the Administrative Agent or the Required Lenders may require that no Loans may be converted to or continued as Eurodollar RateTerm SOFR Loans.
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(d) The Administrative Agent shall promptly notify the Borrower and the Appropriate Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans, Term SOFR Loans or EURIBOR Loans upon determination of such interest rate. The determination of the Eurodollar Rate, Term SOFR and EURIBOR by the Administrative Agent shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Appropriate Lenders of any change in the Administrative Agent’s prime rate used in determining the Base Rate promptly following the determination of such change.
(e) After giving effect to all Term Borrowings, all Revolving Credit Borrowings, all conversions of Term Loans or Revolving Credit Loans from one Type to the other, and all continuations of Term Loans or Revolving Credit Loans as the same Type, there shall not be more than fifteen (15) Interest Periods in effect.
(f) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
SECTION 2.03 Letters of Credit. (a) The Letter of Credit Commitment. (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars, Euros or Sterling for the account of the Borrower (or any Restricted Subsidiary so long as the Borrower is a joint and several co-applicant, and references to a “Borrower” in this Section 2.03 shall be deemed to include reference to such Restricted Subsidiary) and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drafts under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower; provided that the L/C Issuer shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if, as of the date of such L/C Credit Extension, (w) the aggregate Dollar Amount of Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such Lender’s Dollar Amount of Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans, would exceed such Lender’s Revolving Credit Commitment, (x) the Dollar Amount of Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit, (y) the aggregate Dollar Amount of Euro Revolving Credit Loans and L/C Obligations in respect of Euro Letters of Credit would exceed the Euro Sublimit or (z) the aggregate Dollar Amount of Sterling Revolving Credit Loans and L/C Obligations in respect of Sterling Letters of Credit would exceed the Sterling Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof; provided that to the extent any Existing Letter of Credit was issued by a Person that is not a party to this Agreement, the obligations of the Borrower to the L/C Issuer under this Section 2.03 in respect of such Existing Letter of Credit shall instead be obligations of the Borrower to such Person, and such Person shall be entitled to all the rights, remedies and protections set forth in this Agreement and the other Loan Documents in respect of such Existing Letter of Credit as though it were the L/C Issuer.
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(ii) The L/C Issuer shall be under no obligation to issue any Letter of Credit if:
(A)any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which, in each case, the L/C Issuer in good faith deems material to it;
(B)subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit, prior to giving effect to any automatic renewal, would occur more than twelve months after the date of issuance or last renewal, unless the Required Lenders have approved such expiry date;
(C)the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Credit Lenders have approved such expiry date; or
(D)the issuance of such Letter of Credit would violate any Laws or one or more policies of the L/C Issuer.
(iii) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(iv) In the case where any Revolving Credit Lender is at any time a Defaulting Lender, the Defaulting Lender’s Pro Rata Share of the L/C Obligations will be reallocated among all Revolving Credit Lenders that are not Defaulting Lenders (pro rata in accordance with their respective Pro Rata Shares) but only to the extent the total Revolving Credit Exposure of all Revolving Credit Lenders that are not Defaulting Lenders plus such Defaulting Lender’s Pro Rata Share of the L/C Obligations and any Swing Line Loans, in each case, except to the extent Cash Collateralized, does not exceed the aggregate Revolving Credit Commitments (excluding the Revolving Credit Commitment of any Defaulting Lender except to the extent of any outstanding Revolving Credit Loans of such Defaulting Lender) in which case the Revolving Credit Commitments of all Defaulting Lenders shall be deemed to be zero (except to the extent Cash Collateral has been posted by such Defaulting Lender in respect of any portion of such Defaulting Lender’s L/C Obligations or participations in Swing Line Loans) for purposes of any determination of the Revolving Credit Lenders’ respective Pro Rata Shares of L/C Obligations (including for purposes of all fee calculations hereunder).
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(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Renewal Letters of Credit. (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 1:00 p.m. at least ten (10) days, or such shorter period as mutually agreed, prior to the proposed issuance date or date of amendment, as the case may be, or such later date and time as the L/C Issuer may agree in a particular instance in its sole discretion. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the currency in which the requested Letter of Credit will denominated; and (H) such other matters as the L/C Issuer may reasonably request. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the L/C Issuer: (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may reasonably request.
(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt by the L/C Issuer of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof (such confirmation to be promptly provided by the Administrative Agent), then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or enter into the applicable amendment, as the case may be. Immediately upon the issuance of each Letter of Credit, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer an unfunded risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Pro Rata Share times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic renewal provisions (each, an “Auto-Renewal Letter of Credit”); provided that any such Auto-Renewal Letter of Credit must permit the L/C Issuer to prevent any such renewal at least once in each twelve month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Nonrenewal Notice Date”) in each such twelve month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, Borrower shall not be required to make a specific request to the L/C Issuer for any such renewal. Once an Auto-Renewal Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the renewal of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided that the L/C Issuer shall not permit any such renewal if (A) the L/C Issuer has determined that it would have no obligation at such time to issue such Letter of Credit in its renewed form under the terms hereof (by reason of the provisions of Section 2.03(a)(ii) or otherwise), or (B) it has received notice
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(which may be by telephone or in writing) on or before the day that is five (5) Business Days before the Nonrenewal Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such renewal or (2) from the Administrative Agent, any Revolving Credit Lender or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied.
(iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations. (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the Administrative Agent thereof. Not later than 12:00 p.m. (noon) on the Business Day immediately following any payment by the L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), the Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing, which amount shall be payable in the Committed Currency in which such Letter of Credit was issued. If the Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Revolving Credit Lender of the Honor Date, the amount of the unreimbursed drawing (expressed in Dollars in the Dollar Amount thereof in the case of Euros or Sterling) (the “Unreimbursed Amount”), and the amount of such Revolving Credit Lender’s Pro Rata Share thereof. In such event, the Borrower shall be deemed to have requested a Revolving Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02(a) for the principal amount of Base Rate Loans but subject to the amount of the unutilized portion of the Revolving Credit Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Committed Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if promptly confirmed in writing; provided that the lack of a prompt confirmation shall not affect the conclusiveness or binding effect of such notice.
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(ii) Each Revolving Credit Lender (including the Lender acting as the L/C Issuer) shall upon any notice pursuant to Section 2.03(c)(i) make funds available to the Administrative Agent for the account of the L/C Issuer, in Dollars, at the Administrative Agent’s Office in an amount equal to its Pro Rata Share of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Revolving Credit Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Revolving Credit Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03.
(iv) Until each Revolving Credit Lender funds its Revolving Credit Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Pro Rata Share of such amount shall be solely for the account of the L/C Issuer.
(v) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that each Revolving Credit Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the Borrower of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.
(vi) If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. A certificate of the L/C Issuer submitted to any Revolving Credit Lender (through the Administrative Agent) with respect to any amounts owing under this Section 2.03(c)(vi) shall be conclusive absent manifest error.
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(d)Repayment of Participations. (i) If, at any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving Credit Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c), the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Pro Rata Share thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in the same currency as the Letter of Credit issued by such L/C Issuer.
(ii) If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(d)(i) is required to be returned under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Revolving Credit Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect.
(e)Obligations Absolute. The obligation of the Borrower to reimburse the L/C Issuer for each drawing under each Letter of Credit issued for its account and to repay each L/C Borrowing relating to any Letter of Credit issued for its account shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(i)any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other agreement or instrument relating thereto;
(ii)the existence of any claim, counterclaim, setoff, defense or other right that the Borrower or applicable Restricted Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii)any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
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(iv)any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law;
(v)any exchange, release or nonperfection of any Collateral, or any release or amendment or waiver of or consent to departure from the Guaranty or any other guarantee, for all or any of the Obligations of the Borrower in respect of such Letter of Credit; or
(vi)any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower;
provided that the foregoing shall not excuse the L/C Issuer from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are waived by the Borrower to the extent permitted by applicable Law) suffered by the Borrower that are determined by a nonappealable judgment of a court of competent jurisdiction to have been caused by the L/C Issuer’s gross negligence, bad faith or willful misconduct when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The Borrower shall promptly examine a copy of each Letter of Credit issued for its account and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will promptly notify the L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.
(f)Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuer, any Agent-Related Person nor any of the respective correspondents, participants or assignees of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at Law or under any other agreement. None of the L/C Issuer, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of the L/C Issuer, shall be liable or responsible for any of the matters described in clauses (i) through (vi) of Section 2.03(e); provided that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by the L/C Issuer’s willful misconduct, bad faith or gross negligence or the L/C Issuer’s willful or grossly negligent or bad faith failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in
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limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
(g)Cash Collateral. Upon the request of the Administrative Agent, (i) if the L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing and the conditions set forth in Section 4.02 to a Revolving Credit Borrowing cannot then be met, or (ii) if, as of the Letter of Credit Expiration Date, any Letter of Credit may for any reason remain outstanding and partially or wholly undrawn, the Borrower shall promptly Cash Collateralize (x) in the case of clause (i), 100% and (y) in the case of clause (ii), 102%, in each case, the then Outstanding Amount of all L/C Obligations (such Outstanding Amount to be determined as of the date of such L/C Borrowing or the Letter of Credit Expiration Date, as the case may be) or, in the case of clause (ii), provide a back to back letter of credit in a face amount at least equal to 102% of the then undrawn amount of such Letter of Credit from an issuer and in form and substance reasonably satisfactory to the L/C Issuer in its reasonable discretion. Any Letter of Credit that is so Cash Collateralized or in respect of which such a back-to-back letter of credit shall have been issued shall be deemed no longer outstanding for purposes of this Agreement. For purposes hereof, “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash or deposit account balances (“Cash Collateral”) pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the L/C Issuer (which documents are hereby consented to by the Lenders). Derivatives of such term have corresponding meanings. Cash Collateral shall be maintained in deposit accounts designated by the Administrative Agent and which is under the sole dominion and control of the Administrative Agent and shall be deposited in an interest-bearing account. If at any time the Administrative Agent determines that any funds held as Cash Collateral are subject to any right or claim of any Person other than the Administrative Agent or claims of the depositary bank arising by operation of law or that the total amount of such funds is less than the amount required by the first sentence of this clause (g), the Borrower will, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited and held in the deposit accounts designated by the Administrative Agent as aforesaid, an amount equal to the excess of (x) 100% or 102%, as applicable, of such aggregate Outstanding Amount over (y) the total amount of funds, if any, then held as Cash Collateral that the Administrative Agent reasonably determines to be free and clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent permitted under applicable Law, to reimburse the L/C Issuer. To the extent the amount of any Cash Collateral exceeds 100% or 102%, as applicable, of the then Outstanding Amount of such L/C Obligations and so long as no Event of Default has occurred and is continuing, the excess shall be refunded to the Borrower.
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(h)Applicability of ISP98 and UCP. Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance shall apply to each commercial Letter of Credit.
(i)Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the account of each Revolving Credit Lender in accordance with its Pro Rata Share a Letter of Credit fee for each Letter of Credit issued for the account of the Borrower equal to (A) the Applicable Rate minus 0.125% or such other fronting fee that is charged with respect to such Letter of Credit, multiplied by (B) the daily maximum amount then available to be drawn under such Letter of Credit. Such letter of credit fees shall be computed on a quarterly basis in arrears. Such letter of credit fees shall be due and payable on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. If there is any change in the Applicable Rate during any quarter, the daily maximum amount of each Letter of Credit shall be computed and multiplied by the Applicable Rate (less 0.125% or such other fronting fee that is charged with respect to such Letter of Credit) separately for each period during such quarter that such Applicable Rate was in effect.
(j)Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to each Letter of Credit issued for the account of the Borrower equal to 0.125% per annum of the daily maximum amount then available to be drawn under such Letter of Credit. Such fronting fees shall be computed on a quarterly basis in arrears. Such fronting fees shall be due and payable on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. In addition, the Borrower shall pay directly to the L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees not related to the fronting fee and standard costs and charges are due and payable within five (5) Business Days of written demand by the L/C Issuer setting forth in reasonable detail such costs and charges and are nonrefundable.
(k)Conflict with Letter of Credit Application. In the event of any conflict between the terms hereof and the terms of any Letter of Credit Application, the terms of this Agreement shall control.
(l)Provisions Related to Extended Revolving Credit Commitments. If the maturity date in respect of any tranche of Revolving Credit Commitments occurs prior to the expiration of any Letter of Credit, then (i) if one or more other tranches of Revolving Credit Commitments in respect of which the maturity date shall not have occurred are then in effect, such Letters of Credit shall automatically be deemed to have been issued (including for purposes of the obligations of the Revolving Credit Lenders to purchase participations therein and to make Revolving Credit Loans and payments in respect thereof pursuant to Section 2.03(d)) under (and ratably participated in by Lenders pursuant to) the Revolving Credit Commitments in respect of such non-terminating tranches up to an aggregate amount not to exceed the aggregate principal amount of the unutilized Revolving Credit Commitments thereunder at such time and (ii) to the extent not reallocated pursuant to immediately preceding clause (i), the Borrower shall Cash Collateralize any such Letter of Credit in accordance with Section 2.03(g). If, for any reason,
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such Cash Collateral is not provided or the reallocation does not occur, the Revolving Credit Lenders under the maturing tranche shall continue to be responsible for their participating interests in the Letters of Credit. Except to the extent of reallocations of participations pursuant to clause (i) of the second preceding sentence, the occurrence of a maturity date with respect to a given tranche of Revolving Credit Commitments shall have no effect upon (and shall not diminish) the percentage participations of the Revolving Credit Lenders in any Letter of Credit issued before such maturity date. Commencing with the maturity date of any tranche of Revolving Credit Commitments, the sublimit for Letters of Credit shall be agreed with the Lenders under the extended tranches.
SECTION 2.04 Swing Line Loans. (a) The Swing Line. (i) Subject to the terms and conditions set forth herein, the Swing Line Lender agrees to make loans (each such loan, a “Swing Line Loan”) to the Borrower from time to time on any Business Day (other than the Closing Date) during the Revolving Credit Commitment Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Pro Rata Share of the Outstanding Amount of Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Commitment; provided that after giving effect to any Swing Line Loan, the aggregate Dollar Amount of the Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the Dollar Amount of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Credit Commitment; provided further that Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan. Swing Line Loans shall only be denominated in Dollars. Immediately upon the making of a Swing Line Loan, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender an unfunded risk participation in such Swing Line Loan in an amount equal to the product of such Lender’s Pro Rata Share times the amount of such Swing Line Loan.
(ii) Notwithstanding the foregoing, if at any time any Revolving Credit Lender is a Defaulting Lender, such Defaulting Lender’s Pro Rata Share of the Swing Line Loans will be reallocated among all Revolving Credit Lenders that are not Defaulting Lenders (pro rata in accordance with their respective Pro Rata Shares) but only to the extent the total Revolving Credit Exposure of all Revolving Credit Lenders that are not Defaulting Lenders plus such Defaulting Lender’s Pro Rata Share of the Swing Line Loans and any L/C Obligations, in each case, except to the extent Cash Collateralized, does not exceed the aggregate Revolving Credit Commitments (excluding the Revolving Credit Commitment of any Defaulting Lender except to the extent of any outstanding Revolving Credit Loans of such Defaulting Lender), in which case the Revolving Credit Commitments of all Defaulting Lenders shall be deemed to be zero (except to the extent Cash Collateral has been posted by such Defaulting Lender in respect of any portion of such Defaulting Lender’s participations in Swing Line Loans or L/C Obligations) for purposes of any determination of the Revolving Credit Lenders’ respective Pro Rata Shares of the Swing Line Loans (including for purposes of all fee calculations hereunder).
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(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $1,000,000 (ii) the requested borrowing date, which shall be a Business Day and (iii) the account of the Borrower to be credited with the proceeds of such Swing Line Borrowing. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Revolving Credit Lender) prior to 2:00 p.m. on the date of such proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower.
(c) Refinancing of Swing Line Loans. (i) The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrower (each of which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Revolving Credit Lender make a Base Rate Loan in an amount equal to such Lender’s Pro Rata Share of the amount of Swing Line Loans then outstanding. Each such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02(a), without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the aggregate Revolving Credit Commitments and the conditions set forth in Section 4.02. The Swing Line Lender shall furnish the Borrower with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent. Each Revolving Credit Lender shall make an amount equal to its Pro Rata Share of the amount specified in such Committed Loan Notice available to the Administrative Agent in immediately available funds for the account of the Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Revolving Credit Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.
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(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving Credit Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Revolving Credit Lenders fund its risk participation in such Swing Line Loan and each such Revolving Credit Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.
(iii) If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.
(iv) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that each Revolving Credit Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the Borrower of a Committed Loan Notice). No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.
(d) Repayment of Participations. (i) At any time after any Revolving Credit Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Pro Rata Share of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s risk participation was funded) in the same currency as such Swing Line Loan funded by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Revolving Credit Lender shall pay to the Swing Line Lender its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the applicable Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender.
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(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Revolving Credit Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such Lender’s Pro Rata Share of any Swing Line Loan, interest in respect of such Pro Rata Share shall be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.
(g) Provisions Related to Extended Revolving Credit Commitments. If the maturity date shall have occurred in respect of any tranche of Revolving Credit Commitments at a time when another tranche or tranches of Revolving Credit Commitments is or are in effect with a longer maturity date, then on the earliest occurring maturity date all then outstanding Swingline Loans shall be repaid in full on such date (and there shall be no adjustment to the participations in such Swingline Loans as a result of the occurrence of such maturity date); provided, however that if on the occurrence of such earliest maturity date (after giving effect to any repayments of Revolving Credit Loans and any reallocation of Letter of Credit participations as contemplated in Section 2.03(l)), there shall exist sufficient unutilized Extended Revolving Credit Commitments so that the respective outstanding Swingline Loans could be incurred pursuant to the Extended Revolving Credit Commitments which will remain in effect after the occurrence of such maturity date, then there shall be an automatic adjustment on such date of the participations in such Swingline Loans and same shall be deemed to have been incurred solely pursuant to the relevant Extended Revolving Credit Commitments, and such Swingline Loans shall not be so required to be repaid in full on such earliest maturity date.
SECTION 2.05 Prepayments. (a) Optional. (i) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Loans, in whole or in part without premium or penalty; provided that (A) such notice must be received by the Administrative Agent not later than 12:00 p.m. (noon) (1) three (3) Business Days prior to any date of prepayment of Eurodollar Rate Loans or EURIBOR Loans, (2) on the date of prepayment of Base Rate Loans and (3) three (3) RFR Business Days prior to any date of prepayment of RFR Loans; (B) any prepayment of Eurodollar Rate Loans or EURIBOR Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof (or comparable amounts determined by the Administrative Agent in the case of Euro Loans and Sterling Loans) or, if less, the entire principal amount thereof then outstanding; (C) any prepayment of RFR Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (D) any prepayment of Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof or, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Class(es) and Type(s) of Loans to be prepaid. The Administrative Agent will promptly notify each Appropriate Lender of its receipt of each such notice, and of the amount of such Lender’s Pro Rata Share of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan, EURIBOR Loan or RFR Loan shall be accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section 3.05. Each prepayment of principal of, and interest on, Euro Loans shall be made in Euros, and each prepayment of principal of, and interest on, Sterling Revolving Credit Loans shall be made in Sterling. Each prepayment of the Loans pursuant to this Section 2.05(a) shall be applied among the Facilities to such Class(es) in such amounts and, in the case of the Term Loan Facility, in such order of maturity, as the Borrower may direct in its sole discretion. Each prepayment made by the Borrower in respect of a particular Facility shall be paid to the Administrative Agent for the account of (and to be promptly disbursed to) the Appropriate Lenders in accordance with their
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respective Pro Rata Shares provided, that notwithstanding the foregoing or anything else in this Agreement to the contrary, payments and prepayments of principal and interest in respect of the Term Loans made on the Eighth Amendment Effective Date in connection with the replacement of Non-Consenting Lenders pursuant to Section 3.07 hereof may be applied on a non-pro rata basis.
(ii) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (1) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 12:00 p.m. (noon) on the date of the prepayment, and (2) any such prepayment shall be in a minimum principal amount of $100,000 or, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(iii) Notwithstanding anything to the contrary contained in this Agreement, the Borrower may rescind any notice of prepayment under Section 2.05(a)(i) or Section 2.05(a)(ii) if such prepayment would have resulted from a refinancing of all or a portion of the Facilities, which refinancing shall not be consummated or shall otherwise be delayed.
(iv) Notwithstanding anything in this Agreement (including but not limited to Sections 2.07 and 2.13 (which provisions shall not be applicable to this Section 2.05(a)(iv)) or in any other Loan Document to the contrary, so long as (x) no Event of Default has occurred and is continuing and (y) no proceeds of Loans under the Revolving Credit Facility are used for this purpose, the Loan Parties and their Subsidiaries may prepay the outstanding Loans (which shall, for the avoidance of doubt, be automatically and permanently canceled immediately upon acquisition by the Borrower) (or the Loan Parties or any of their Subsidiaries may purchase such outstanding Loans and immediately cancel them) on the following basis:
(A)Any Loan Party or any of its Subsidiaries shall have the right to make a voluntary prepayment of Loans at a discount to par pursuant to a Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offers or Borrower Solicitation of Discounted Prepayment Offers (any such prepayment, the “Discounted Loan Prepayment”), in each case made in accordance with this Section 2.05(a)(iv).
(B)(1) Any Loan Party or any of its Subsidiaries may from time to time offer to make a Discounted Loan Prepayment by providing the Auction Agent notice in the form of a Specified Discount Prepayment Notice; provided that (I) any such offer shall be made available, at the sole discretion of the Loan Party or such Subsidiary, to (x) each Lender and/or (y) each Lender with respect to any Class of Loans on an individual tranche basis, (II) any such offer shall specify the aggregate principal amount offered to be prepaid (the “Specified Discount Prepayment Amount”) with respect to each applicable tranche, the tranche or tranches of Loans subject to such offer and the specific percentage discount to par (the “Specified Discount”) of such Loans to be prepaid (it being understood that different Specified Discounts and/or Specified Discount Prepayment Amounts may be offered with respect to different tranches of Loans
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and, in such event, each such offer will be treated as a separate offer pursuant to the terms of this Section), (III) the Specified Discount Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $1,000,000 in excess thereof and (IV) each such offer shall remain outstanding through the Specified Discount Prepayment Response Date. The Auction Agent will promptly provide each Appropriate Lender with a copy of such Specified Discount Prepayment Notice and a form of the Specified Discount Prepayment Response to be completed and returned by each such Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., New York time, on the third Business Day after the date of delivery of such notice to such Lenders (which date may be extended for a period not exceeding three Business Days upon notice by the Loan Party or the Subsidiary to the Auction Agent) (the “Specified Discount Prepayment Response Date”).
(2) Each Lender receiving such offer shall notify the Auction Agent (or its delegate) by the Specified Discount Prepayment Response Date whether or not it agrees to accept a prepayment of any of its applicable then outstanding Loans at the Specified Discount and, if so (such accepting Lender, a “Discount Prepayment Accepting Lender”), the amount and the tranches of such Lender’s Loans to be prepaid at such offered discount. Each acceptance of a Discounted Loan Prepayment by a Discount Prepayment Accepting Lender shall be irrevocable. Any Lender whose Specified Discount Prepayment Response is not received by the Auction Agent by the Specified Discount Prepayment Response Date shall be deemed to have declined to accept the applicable Borrower Offer of Specified Discount Prepayment.
(3) If there is at least one Discount Prepayment Accepting Lender, the relevant Loan Party or Subsidiary will make a prepayment of outstanding Loans pursuant to this paragraph (B) to each Discount Prepayment Accepting Lender on the Discounted Prepayment Effective Date in accordance with the respective outstanding amount and tranches of Loans specified in such Lender’s Specified Discount Prepayment Response given pursuant to subsection (2) above; provided that, if the aggregate principal amount of Loans accepted for prepayment by all Discount Prepayment Accepting Lenders exceeds the Specified Discount Prepayment Amount, such prepayment shall be made pro rata among the Discount Prepayment Accepting Lenders in accordance with the respective principal amounts accepted to be prepaid by each such Discount Prepayment Accepting Lender and the Auction Agent (in consultation with such Loan Party or such Subsidiary and subject to rounding requirements of the Auction Agent made in its reasonable discretion) will calculate such proration (the “Specified Discount Proration”). The Auction Agent shall promptly, and in any case within three (3) Business Days following the Specified Discount Prepayment Response Date, notify (I) the relevant Loan Party or Subsidiary of the respective Lenders’ responses to such offer, the Discounted Prepayment Effective Date and the aggregate principal amount of the Discounted Loan Prepayment and the tranches to be prepaid, (II) each Lender of the Discounted Prepayment Effective Date, and the aggregate principal amount and the tranches of Loans to be prepaid at the Specified Discount on such date and (III) each Discount Prepayment Accepting Lender of the Specified Discount Proration, if any, and confirmation of the principal amount, tranche and
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Type of Loans of such Lender to be prepaid at the Specified Discount on such date. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the Loan Party and such Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Loan Party or Subsidiary shall be due and payable by such Loan Party on the Discounted Prepayment Effective Date in accordance with subsection (F) below (subject to subsection (J) below).
(C)(1) Any Loan Party or any of its Subsidiaries may from time to time solicit Discount Range Prepayment Offers by providing the Auction Agent with notice in the form of a Discount Range Prepayment Notice; provided that (I) any such solicitation shall be extended, at the sole discretion of such Loan Party or such Subsidiary, to (x) each Lender and/or (y) each Lender with respect to any Class of Loans on an individual tranche basis, (II) any such notice shall specify the maximum aggregate principal amount of the relevant Loans (the “Discount Range Prepayment Amount”), the tranche or tranches of Loans subject to such offer and the maximum and minimum percentage discounts to par (the “Discount Range”) of the principal amount of such Loans with respect to each relevant tranche of Loans willing to be prepaid by such Loan Party or such Subsidiary (it being understood that different Discount Ranges and/or Discount Range Prepayment Amounts may be offered with respect to different tranches of Loans and, in such event, each such offer will be treated as separate offer pursuant to the terms of this Section), (III) the Discount Range Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $1,000,000 in excess thereof and (IV) each such solicitation by any Loan Party or any of its Subsidiaries shall remain outstanding through the Discount Range Prepayment Response Date. The Auction Agent will promptly provide each Appropriate Lender with a copy of such Discount Range Prepayment Notice and a form of the Discount Range Prepayment Offer to be submitted by a responding Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., New York time, on the third Business Day after the date of delivery of such notice to such Lenders (which date may be extended for a period not exceeding three Business Days upon notice by the Loan Party or Subsidiary to the Auction Agent) (the “Discount Range Prepayment Response Date”). Each Lender’s Discount Range Prepayment Offer shall be irrevocable and shall specify one or more (but no more than three for any Lender) discounts to par within the Discount Range (the “Submitted Discount”) at which such Lender is willing to allow prepayment of any or all of its then outstanding Loans of the applicable tranche or tranches and the maximum aggregate principal amount and tranches of such Lender’s Loans (the “Submitted Amount”) such Lender is willing to have prepaid at the Submitted Discount. Any Lender whose Discount Range Prepayment Offer is not received by the Auction Agent by the Discount Range Prepayment Response Date shall be deemed to have declined to accept a Discounted Loan Prepayment of any of its Loans at any discount to their par value within the Discount Range.
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(2) The Auction Agent shall review all Discount Range Prepayment Offers received on or before the applicable Discount Range Prepayment Response Date and shall determine (in consultation with such Loan Party or such Subsidiary and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) the Applicable Discount and Loans to be prepaid at such Applicable Discount in accordance with this subsection (C). The relevant Loan Party or Subsidiary agrees to accept on the Discount Range Prepayment Response Date all Discount Range Prepayment Offers received by Auction Agent within the Discount Range by the Discount Range Prepayment Response Date, in the order from the Submitted Discount that is the largest discount to par to the Submitted Discount that is the smallest discount to par, up to and including the Submitted Discount that is the smallest discount to par within the Discount Range (such Submitted Discount that is the smallest discount to par within the Discount Range being referred to as the “Applicable Discount”) which yields a Discounted Loan Prepayment in an aggregate principal amount equal to the lower of (I) the Discount Range Prepayment Amount and (II) the sum of all Submitted Amounts. Each Lender that has submitted a Discount Range Prepayment Offer to accept prepayment at a discount to par that is larger than or equal to the Applicable Discount shall be deemed to have irrevocably consented to prepayment of Loans equal to its Submitted Amount (subject to any required proration pursuant to the following subsection (3)) at the Applicable Discount (each such Lender, a “Participating Lender”).
(3) If there is at least one Participating Lender, the relevant Loan Party or Subsidiary will prepay the respective outstanding Loans of each Participating Lender on the Discounted Prepayment Effective Date in the aggregate principal amount and of the tranches specified in such Lender’s Discount Range Prepayment Offer at the Applicable Discount; provided that if the Submitted Amount by all Participating Lenders offered at a discount to par greater than the Applicable Discount exceeds the Discount Range Prepayment Amount, prepayment of the principal amount of the relevant Loans for those Participating Lenders whose Submitted Discount is a discount to par greater than or equal to the Applicable Discount (the “Identified Participating Lenders”) shall be made pro rata among the Identified Participating Lenders in accordance with the Submitted Amount of each such Identified Participating Lender and the Auction Agent (in consultation with such Loan Party or such Subsidiary and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) will calculate such proration (the “Discount Range Proration”). The Auction Agent shall promptly, and in any case within five (5) Business Days following the Discount Range Prepayment Response Date, notify (I) the relevant Loan Party or Subsidiary of the respective Lenders’ responses to such solicitation, the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate principal amount of the Discounted Loan Prepayment and the tranches to be prepaid, (II) each Lender of the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate principal amount and tranches of Loans to be prepaid at the Applicable Discount on such date, (III) each Participating Lender of the aggregate principal amount and tranches of such Lender to be prepaid at the Applicable Discount on such date, and (IV) if applicable, each Identified Participating Lender of the Discount
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Range Proration. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the relevant Loan Party or Subsidiary and Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Loan Party or Subsidiary shall be due and payable by such Loan Party on the Discounted Prepayment Effective Date in accordance with subsection (F) below (subject to subsection (J) below).
(D)(1) Any Loan Party or any of its Subsidiaries may from time to time solicit Solicited Discounted Prepayment Offers by providing the Auction Agent with notice in the form of a Solicited Discounted Prepayment Notice; provided that (I) any such solicitation shall be extended, at the sole discretion of such Loan Party or such Subsidiary, to (x) each Lender and/or (y) each Lender with respect to any Class of Loans on an individual tranche basis, (II) any such notice shall specify the maximum aggregate amount of the Loans (the “Solicited Discounted Prepayment Amount”) and the tranche or tranches of Loans the Loan Party or Subsidiary is willing to prepay at a discount (it being understood that different Solicited Discounted Prepayment Amounts may be offered with respect to different tranches of Loans and, in such event, each such offer will be treated as separate offer pursuant to the terms of this Section), (III) the Solicited Discounted Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $1,000,000 in excess thereof and (IV) each such solicitation by any Loan Party or any of its Subsidiaries shall remain outstanding through the Solicited Discounted Prepayment Response Date. The Auction Agent will promptly provide each Appropriate Lender with a copy of such Solicited Discounted Prepayment Notice and a form of the Solicited Discounted Prepayment Offer to be submitted by a responding Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., New York time on the third Business Day after the date of delivery of such notice to such Lenders (which date may be extended for a period not exceeding three Business Days upon notice by the Loan Party or Subsidiary to the Auction Agent) (the “Solicited Discounted Prepayment Response Date”). Each Lender’s Solicited Discounted Prepayment Offer shall (x) be irrevocable, (y) remain outstanding until the Acceptance Date, and (z) specify both one or more (but no more than three) discounts to par (the “Offered Discount”) at which such Lender is willing to allow prepayment of its then outstanding Loan and the maximum aggregate principal amount and tranches of such Loans (the “Offered Amount”) such Lender is willing to have prepaid at the Offered Discount. Any Lender whose Solicited Discounted Prepayment Offer is not received by the Auction Agent by the Solicited Discounted Prepayment Response Date shall be deemed to have declined prepayment of any of its Loans at any discount.
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(2) The Auction Agent shall promptly provide the relevant Loan Party or Subsidiary with a copy of all Solicited Discounted Prepayment Offers received on or before the Solicited Discounted Prepayment Response Date. Such Loan Party or such Subsidiary shall review all such Solicited Discounted Prepayment Offers and select the largest of the Offered Discounts specified by the relevant responding Lenders in the Solicited Discounted Prepayment Offers that is acceptable to the Loan Party or Subsidiary in its sole discretion (the “Acceptable Discount”), if any. If the Loan Party or Subsidiary elects, in its sole discretion, to accept any Offered Discount as the Acceptable Discount, in no event later than by the third Business Day after the date of receipt by such Loan Party or such Subsidiary from the Auction Agent of a copy of all Solicited Discounted Prepayment Offers pursuant to the first sentence of this subsection (2) (the “Acceptance Date”), the Loan Party or Subsidiary may submit an Acceptance and Prepayment Notice to the Auction Agent setting forth the Acceptable Discount. If the Auction Agent shall fail to receive an Acceptance and Prepayment Notice from the Loan Party or Subsidiary by the Acceptance Date, such Loan Party or such Subsidiary shall be deemed to have rejected all Solicited Discounted Prepayment Offers.
(3) Based upon the Acceptable Discount and the Solicited Discounted Prepayment Offers received by Auction Agent by the Solicited Discounted Prepayment Response Date, within three (3) Business Days after receipt of an Acceptance and Prepayment Notice (the “Discounted Prepayment Determination Date”), the Auction Agent will determine (in consultation with such Loan Party or such Subsidiary and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) the aggregate principal amount and the tranches of Loans (the “Acceptable Prepayment Amount”) to be prepaid by the relevant Loan Party or Subsidiary at the Acceptable Discount in accordance with this Section 2.05(a)(iv)(D). If the Loan Party or Subsidiary elects to accept any Acceptable Discount, then the Loan Party or Subsidiary agrees to accept all Solicited Discounted Prepayment Offers received by Auction Agent by the Solicited Discounted Prepayment Response Date, in the order from largest Offered Discount to smallest Offered Discount, up to and including the Acceptable Discount. Each Lender that has submitted a Solicited Discounted Prepayment Offer with an Offered Discount that is greater than or equal to the Acceptable Discount shall be deemed to have irrevocably consented to prepayment of Loans equal to its Offered Amount (subject to any required pro-rata reduction pursuant to the following sentence) at the Acceptable Discount (each such Lender, a “Qualifying Lender”). The Loan Party or Subsidiary may prepay outstanding Loans pursuant to this subsection (D) to each Qualifying Lender in the aggregate principal amount and of the tranches specified in such Lender’s Solicited Discounted Prepayment Offer at the Acceptable Discount; provided that if the aggregate Offered Amount by all Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount exceeds the Solicited Discounted Prepayment Amount, prepayment of the principal amount of the Loans for those Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount (the “Identified Qualifying Lenders”) shall be made pro rata among the Identified Qualifying Lenders in accordance with the Offered
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Amount of each such Identified Qualifying Lender and the Auction Agent (in consultation with such Loan Party or such Subsidiary and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) will calculate such proration (the “Solicited Discount Proration”). On or prior to the Discounted Prepayment Determination Date, the Auction Agent shall promptly notify (I) the relevant Loan Party or Subsidiary of the Discounted Prepayment Effective Date and Acceptable Prepayment Amount comprising the Discounted Loan Prepayment and the tranches to be prepaid, (II) each Lender of the Discounted Prepayment Effective Date, the Acceptable Discount, and the Acceptable Prepayment Amount of all Loans and the tranches to be prepaid at the Applicable Discount on such date, (III) each Qualifying Lender of the aggregate principal amount and the tranches of such Lender to be prepaid at the Acceptable Discount on such date, and (IV) if applicable, each Identified Qualifying Lender of the Solicited Discount Proration. Each determination by the Auction Agent of the amounts stated in the foregoing notices to such Loan Party or such Subsidiary and Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to such Loan Party or such Subsidiary shall be due and payable by such Loan Party or such Subsidiary on the Discounted Prepayment Effective Date in accordance with subsection (F) below (subject to subsection (J) below).
(E)In connection with any Discounted Loan Prepayment, the Loan Parties and the Lenders acknowledge and agree that the Auction Agent may require as a condition to any Discounted Loan Prepayment, the payment of customary and documented fees and out-of-pocket expenses from a Loan Party or Subsidiary in connection therewith.
(F)If any Loan is prepaid in accordance with paragraphs (B) through (D) above, a Loan Party or Subsidiary shall prepay such Loans on the Discounted Prepayment Effective Date without premium or penalty. The relevant Loan Party or Subsidiary shall make such prepayment to the Administrative Agent, for the account of the Discount Prepayment Accepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable, at the Administrative Agent’s Office in immediately available funds not later than 1:00 p.m. (New York time) on the Discounted Prepayment Effective Date and all such prepayments shall be applied to the remaining principal installments of the relevant tranche of Loans on a pro-rata basis across such installments. The Loans so prepaid shall be accompanied by all accrued and unpaid interest on the par principal amount so prepaid up to, but not including, the Discounted Prepayment Effective Date. Each prepayment of the outstanding Loans pursuant to this Section 2.05(a)(iv) shall be paid to the Discount Prepayment Accepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable, and shall be applied to the relevant Loans of such Lenders in accordance with their respective Pro Rata Share. The aggregate principal amount of the tranches and installments of the relevant Loans outstanding shall be deemed reduced by the full par value of the aggregate principal amount of the tranches of Loans prepaid on the Discounted Prepayment Effective Date in any Discounted Loan Prepayment. In connection with each prepayment pursuant to this Section 2.05(a)(iv), each relevant Loan Party shall represent and warrant as of the date of any such prepayment pursuant to this Section 2.05(a)(iv) that such Loan Party has no material non-public information (“MNPI”) with respect to any Loan Party that both (x) has not been disclosed to the applicable Lenders (other
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than because any such Lender does not wish to receive MNPI with respect to any Loan Party) prior to such date and (y) could reasonably be expected to have a material effect upon, or otherwise be material to, a Lender’s decision to accept any prepayment pursuant to this Section 2.05(a)(iv).
(G)To the extent not expressly provided for herein, each Discounted Loan Prepayment (which for the avoidance of doubt, shall not include any open market purchases of Loans or Commitments otherwise permitted by the terms hereof) shall be consummated pursuant to procedures consistent with the provisions in this Section 2.05(a)(iv) or as otherwise established by the Auction Agent acting in its reasonable discretion and as reasonably agreed by the Borrower.
(H)Notwithstanding anything in any Loan Document to the contrary, for purposes of this Section 2.05(a)(iv), to the extent the Administrative Agent is the Auction Agent, each notice or other communication required to be delivered or otherwise provided to the Auction Agent (or its delegate) shall be deemed to have been given upon Auction Agent’s (or its delegate’s) actual receipt during normal business hours of such notice or communication; provided that any notice or communication actually received outside of normal business hours shall be deemed to have been given as of the opening of business on the next Business Day.
(I)Each of the Loan Parties and the Lenders acknowledge and agree that the Auction Agent may perform any and all of its duties under this Section 2.05(a)(iv) by itself or through any Affiliate of the Auction Agent and expressly consents to any such delegation of duties by the Auction Agent to such Affiliate and the performance of such delegated duties by such Affiliate. The exculpatory provisions pursuant to this Agreement shall apply to each Affiliate of the Auction Agent and its respective activities in connection with any Discounted Loan Prepayment provided for in this Section 2.05(a)(iv) as well as activities of the Auction Agent.
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(J) Each Loan Party and any of its Subsidiaries shall have the right, by written notice to the Auction Agent, to revoke or modify its offer to make a Discounted Loan Prepayment and rescind the applicable Specified Discount Prepayment Notice, Discount Range Prepayment Notice or Solicited Discounted Prepayment Notice therefor at its discretion at any time on or prior to the applicable Specified Discount Prepayment Response Date.
(K) Any failure by such Loan Party or such Subsidiary to make any prepayment to a Lender, pursuant to this Section 2.05(a)(iv) shall not constitute a Default or Event of Default under Section 8.01 or otherwise.
(L) To the extent the Auction Agent is required to deliver notices or communicate such other information to the Lenders pursuant to this Section 2.05(a)(iv), the Auction Agent will work with the Administrative Agent (and the Administrative Agent will cooperate with the Auction Agent) in order to procure the delivery of such notices and/or the communication of such information to the applicable Lenders.
(M) Nothing in this Section 2.05(a)(iv) shall require the Loan Parties or any of their Subsidiaries to undertake any Discounted Loan Prepayment.
(v) At the time of the effectiveness of any Repricing Transaction that is consummated prior to the 6-month anniversary of the Tenth Amendment Effective Date, the Borrower agrees to pay to the Administrative Agent, for the ratable account of each Lender with outstanding Term Loans which are repaid or prepaid pursuant to such Repricing Transaction, a fee in an amount equal to 1.00% of the aggregate principal amount of all Term Loans prepaid (or converted) in connection with such Repricing Transaction. Such fees shall be due and payable upon the date of the effectiveness of such Repricing Transaction.
(b) Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(b), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans, in accordance with Section 2.05(b)(vi), in an amount equal to (A) the Prepayment Percentage of Excess Cash Flow, if any, for the fiscal year covered by such financial statements (commencing with the fiscal year ended December 31, 2013) minus (B) the sum of (1) the amount of any voluntary prepayments of Term Loans made pursuant to Section 2.05(a) during such fiscal year and (2) solely to the extent the amount of the Revolving Credit Commitments are reduced pursuant to Section 2.06 in connection therewith (and solely to the extent of the amount of such reduction), the amount of any voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.05(a) during such fiscal year.
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(ii) (A) If (x) STBV or any Restricted Subsidiary Disposes of any property or assets (other than any Disposition of any property or assets permitted by Section 7.05(a), (b), (c), (d), (e), (f) (except to the extent clause (iii) of the proviso thereto is applicable to such Disposition), (g), (h), (i), (j), (m), (n), (p), (q), (r), (s), (t) or (u)) or (y) any Casualty Event occurs, which results in the realization or receipt by STBV or such Restricted Subsidiary of Net Cash Proceeds, the Borrower shall cause to be prepaid on or prior to the date which is ten (10) Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Term Loans, in accordance with Section 2.05(b)(vi), in an amount equal to 100% of all Net Cash Proceeds received; provided that no such prepayment shall be required pursuant to this Section 2.05(b)(ii)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest or cause to be reinvested all or a portion of such Net Cash Proceeds in accordance with Section 2.05(b)(ii)(B) (which, except in the case of a Casualty Event, election may only be made if no Event of Default has occurred and is then continuing);
(B) With respect to any Net Cash Proceeds realized or received with respect to any Disposition (other than any Disposition specifically excluded from the application of Section 2.05(b)(ii)(A)) or any Casualty Event, at the option of the Borrower, and with respect to a Disposition, so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest or cause to be reinvested all or any portion of such Net Cash Proceeds in assets useful for its business within (x) three hundred and sixty-five (365) days of the receipt of such Net Cash Proceeds or (y) if STBV or the relevant Restricted Subsidiary enters into a contract to reinvest such Net Cash Proceeds within three hundred and sixty-five (365) days of the receipt thereof, within one hundred and eighty (180) days of the date of such contract; provided that if any Net Cash Proceeds are not so reinvested within the applicable time periods set forth above in this Section 2.05(b)(ii)(B) or are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election, an amount equal to any such Net Cash Proceeds shall be promptly applied to the prepayment of the Term Loans as set forth in this Section 2.05.
(iii) If for any reason the aggregate Outstanding Amount of the Revolving Credit Loans, the L/C Obligations and Swing Line Loans at any time exceeds the aggregate Revolving Credit Commitments then in effect, the Borrower shall promptly prepay Revolving Credit Loans or Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(iii) unless after the prepayment in full of the Revolving Credit Loans and Swing Line Loans such aggregate Outstanding Amount exceeds such aggregate Revolving Credit Commitments then in effect.
(iv) If STBV or any Restricted Subsidiary incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03, the Borrower shall cause to be prepaid an aggregate amount of Term Loans, in accordance with Section 2.05(b)(vii), in an amount equal to the Prepayment Percentage of all Net Cash Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt of such Net Cash Proceeds.
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(v) The Borrower shall cause to be prepaid an aggregate amount of Term Loans, in accordance with Section 2.05(b)(vii), in an amount equal to the Net Cash Proceeds received from the issuance of the 2030 Senior Notes.
(vi) Notwithstanding any other provisions of this Section 2.05(b), (A) to the extent that (and for so long as) any of Excess Cash Flow or all the Net Cash Proceeds of any asset sale or other Disposition or any Casualty Event by a Restricted Subsidiary (other than the Borrower) giving rise to mandatory prepayment pursuant to Section 2.05(b)(ii)(A) or Section 2.05(b)(ii)(B) (each such Disposition and Casualty Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of organization of the Borrower, the portion of such Excess Cash Flow or Net Cash Proceeds so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable Restricted Subsidiary so long as the applicable local Law will not permit such repatriation to the Borrower (the Borrower hereby agreeing to cause the applicable Restricted Subsidiary to promptly take all actions reasonably required by applicable local Law to permit such repatriation), and once such repatriation of any of such affected Excess Cash Flow or Net Cash Proceeds is permitted under the applicable local Law, such repatriation will be promptly effected and such repatriated Excess Cash Flow or Net Cash Proceeds will be promptly (and in any event not later than five (5) Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Excess Cash Flow or Net Cash Proceeds of any Specified Asset Sale to the jurisdiction of organization of the Borrower would have a material adverse tax consequence with respect to such Excess Cash Flow or Net Cash Proceeds, the Excess Cash Flow or Net Cash Proceeds so affected may be retained by the applicable Restricted Subsidiary, provided that, in the case of this clause (iv), on or before the date on which any Excess Cash Flow or Net Cash Proceeds so retained would otherwise have been required to be applied to prepayments pursuant to Section 2.05(b)(i), the Borrower causes to be applied an amount equal to such Excess Cash Flow or Net Cash Proceeds to such prepayments as if such Excess Cash Flow or Net Cash Proceeds had been received by the Borrower rather than such Restricted Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Excess Cash Flow or Net Cash Proceeds had been so repatriated (or, if less, the Excess Cash Flow or Net Cash Proceeds that would be calculated if received by such Restricted Subsidiary) in satisfaction of such prepayment requirement.
(vii) Any prepayment of any Term Loans pursuant to this Section 2.05(b) shall be applied to repay Term Loans of each then outstanding Class; provided, that any prepayment of any Term Loans pursuant to this Section 2.05(b) shall be applied to repay Term Loans of each Class with an earlier maturity date prior to being applied to repay any Term Loans of any other Class with a later maturity date (and if two or more Classes of Term Loans have the same maturity date, shall be applied on a pro rata basis to such Classes). Any prepayment of any Class of Term Loans pursuant to this Section 2.05(b) shall be applied, first, in direct order of maturities, to any principal repayment installments of such Term Loans that are due within twenty-four (24) months after the date of such prepayment and second, on a pro-rata basis, to the other principal repayment installments of such Term Loans of such Class; and each such prepayment shall be paid to the Lenders in accordance with their respective Pro Rata Share (prior to giving effect to any rejection by any Term Lender of any such prepayment pursuant to clause (viii) below), subject to clause (vi) of this Section 2.05(b).
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(vii) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (i), (ii) and (iii) of this Section 2.05(b) at least three (3) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of any such prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Any Term Lender (a “Declining Lender,” and any Term Lender which is not a Declining Lender, an “Accepting Lender”) may elect, by delivering not less than two (2) Business Days prior to the proposed prepayment date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Lender pursuant to clauses (i), (ii) and (iii) of this Section 2.05(b) not be made, in which event the portion of such prepayment which would otherwise have been applied to the Term Loans of the Declining Lenders shall instead be retained by the Borrower.
(ix) Funding Losses, Etc. All prepayments under this Section 2.05 shall be made together with, in the case of any such prepayment of a Eurodollar Rate Loan, an RFR Loan or a EURIBOR Loan on a date other than the last day of an Interest Period, or on a date other than the Interest Payment Date, therefor, as applicable, any amounts owing in respect of such Eurodollar Rate Loan, RFR Loan or EURIBOR Loan, as the case may be, pursuant to Section 3.05. Notwithstanding any of the other provisions of Section 2.05(b), so long as no Event of Default shall have occurred and be continuing, if any prepayment of Eurodollar Rate Loans, RFR Loans or EURIBOR Loans is required to be made under this Section 2.05(b), other than on the last day of the Interest Period therefor, the Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder into a Cash Collateral Account until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of such Loans in accordance with this Section 2.05(b). Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of the outstanding Loans in accordance with this Section 2.05(b).
SECTION 2.06 Termination or Reduction of Revolving Credit Commitments. (a) Optional. The Borrower may, upon written notice to the Administrative Agent, terminate all or any portion of the unused Commitments under the Revolving Credit Facility; provided that (i) any such notice shall be received by the Administrative Agent three (3) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount (A) of $1,000,000 or any whole multiple of $100,000 in excess thereof or (B) equal to the entire remaining amount of the Revolving Credit Commitments and (iii) if, after giving effect to any reduction of the Revolving Credit Commitments, (1) the Letter of Credit Sublimit or the Swing Line Sublimit, as the case may be, exceeds the amount of the Revolving Credit Commitments, such sublimit shall be automatically reduced by the amount of such excess, (2) the Euro Sublimit exceeds the Euro Revolving Credit Facility, such sublimit shall be automatically reduced by the amount of such excess and (3) the Sterling Sublimit exceeds the Sterling Revolving Credit Facility, such sublimit shall be automatically reduced by the amount of such excess. The amount of any such Revolving Credit Commitment reduction shall not be applied to the Letter of Credit Sublimit, the Swing Line Sublimit, the Euro Sublimit or Sterling Sublimit unless otherwise specified by the Borrower. Notwithstanding the foregoing, the Borrower may rescind or postpone any notice of termination of the Revolving Credit Commitments if such termination would have resulted from a refinancing of all or a portion of the Facilities, which refinancing shall not be consummated or otherwise shall be delayed.
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(b) Mandatory. (i) The Term Commitment of each Term Lender shall be automatically and permanently reduced to $0 at 5:00 p.m. on the Closing Date upon the funding of the Term Loans.
(ii) The Revolving Credit Commitment of each Revolving Credit Lender shall be automatically and permanently reduced to $0 on the Maturity Date for the Revolving Credit Facility.
(c) Application of Commitment Reductions; Payment of Fees. The Administrative Agent will promptly notify the Appropriate Lenders of any termination or reduction of unused portions of the Letter of Credit Sublimit, the Swing Line Sublimit, the Euro Sublimit or the Sterling Sublimit or the unused Commitments of any Class under this Section 2.06 as the Borrower may direct in its sole discretion. Upon any reduction of unused Commitments of any Class, the Commitment of each Lender of such Class shall be reduced by such Lender’s Pro Rata Share of the amount by which such Commitments are reduced (other than the termination of the Commitment of any Lender as provided in Section 3.07). All commitment fees accrued until the effective date of any termination of the Aggregate Commitments of any Class shall be paid to the Appropriate Lenders on the effective date of such termination.
SECTION 2.07 Repayment of Loans. (a) Term Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the Term Lenders the aggregate outstanding principal amount of the Term Loans in quarterly installments payable on the last Business Day of each March, June, September and December, commencing on June 30, 2015, in an amount equal to (x) on each such date occurring on or prior to the Maturity Date, 0.25% of the sum of the aggregate principal amount of the Term Loans outstanding and (y) the balance on the Maturity Date for the Term Loan Facility, which amount, in each case, shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.05; provided, however, that the final principal installment shall be repaid on the Maturity Date for the Term Loans and in any event shall be in an amount equal to the aggregate principal amount of the Term Loans outstanding on such date.
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(b) Revolving Credit Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the applicable Revolving Credit Lenders on the Maturity Date for the Revolving Credit Facility the aggregate principal amount of all of its Revolving Credit Loans outstanding on such date.
(c) Swing Line Loans. The Borrower shall repay the aggregate principal amount of all of its Swing Line Loans on the Maturity Date for the Revolving Credit Facility.
(d) Additional Term Loans and Extended Term Loans. The Borrower shall repay the aggregate amount of any Additional Term Loans or Extended Term Loans to the Administrative Agent in accordance with a repayment schedule to be agreed by the Borrower and the relevant Additional Term Lenders or relevant Extended Term Lenders, as applicable.
(e) Additional Revolving Credit Loans and Extended Revolving Credit Loans. The Borrower shall repay the aggregate amount of any Additional Revolving Credit Loans or Extended Revolving Credit Loans to the Administrative Agent on the maturity date to be agreed by the Borrower and the relevant Additional Revolving Credit Lenders or relevant Extending Revolving Credit Lenders, as applicable.
SECTION 2.08 Interest. (a) (i) Each Eurodollar RateTerm SOFR Loan or EURIBOR Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar RateAdjusted Term SOFR or EURIBOR, as applicable, for such Interest Period plus the Applicable Rate; (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate; (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for Revolving Credit Loans, and (iv) each Term SOFR Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to Adjusted Term SOFR plus the Applicable Rate, and (v) each SONIA Daily Simple Loan will bear interest at a rate per annum for each day equal to the sum of Adjusted Daily Simple SONIA for such day plus the Applicable Rate.
(b) While any Event of Default set forth in Section 8.01(a) exists, the Borrower shall pay interest on the principal amount of all of its outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate (plus Mandatory Costs, if any) to the fullest extent permitted by applicable Laws. Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
SECTION 2.09 Fees. In addition to certain fees described in Section 2.03(i) and Section 2.03(j):
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(a) Revolving Credit Commitment Fee. The Borrower shall pay to the Administrative Agent for the account of each Revolving Credit Lender a commitment fee (each, a “Revolving Credit Commitment Fee” and, collectively, the “Revolving Credit Commitment Fees”) equal to the Applicable Rate times the unused portion of such Revolving Credit Lender’s Dollar Revolving Credit Commitment or, if greater, the Dollar Amount of the unused portion of such Revolving Credit Lender’s Euro Revolving Credit Commitment or Sterling Revolving Credit Commitment; provided that any Revolving Credit Commitment Fee accrued with respect to the unused portion of the Revolving Credit Commitment of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender except to the extent that such Revolving Credit Commitment Fee shall otherwise have been due and payable by the Borrower prior to such time; and provided further that no Revolving Credit Commitment Fee shall accrue on the unused portion of the Revolving Credit Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting Lender. The Revolving Credit Commitment Fees shall accrue at all times from the date hereof until the Maturity Date for the Revolving Credit Facility, including at any time during which one or more of the conditions in Article 4 is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the Maturity Date for the Revolving Credit Facility. The Revolving Credit Commitment Fees shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.
(b) Other Fees. The Borrower shall pay or cause to be paid to the Agents such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever (except as expressly agreed between the Borrower and the applicable Agent).
(c) Upfront Fees. The Original Borrowers shall pay to the Administrative Agent for the account of each Revolving Credit Lender in accordance with its Pro Rata Share, an upfront fee in respect of the Revolving Credit Commitments equal to 0.50% of the aggregate amount of the Revolving Credit Commitments provided to the Original Borrowers under this Agreement on the Closing Date, which shall be payable in full on the Closing Date.
SECTION 2.10 Computation of Interest and Fees. All computations of interest for Base Rate Loans when the Base Rate is determined by reference to the “prime rate” as published in the Wall Street Journal shall be made on the basis of a year of three hundred and sixty-five (365) or three hundred and sixty-six (366) days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a three hundred and sixty (360) day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a three hundred and sixty-five (365) day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one (1) day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
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SECTION 2.11 Evidence of Indebtedness. (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and evidenced by one or more entries in the Register maintained by the Administrative Agent, acting solely for purposes of Treasury Regulation Section 5f.103-1(c), as agent for the Borrower, in each case in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be prima facie evidence absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note payable to such Lender, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto. The Borrower and each Lender agrees from time to time after the occurrence and during the continuance of an Event of Default under Section 8.01(f) or Section 8.01(g)(i) to execute and deliver to the Administrative Agent all such Notes or other promissory notes and other instruments and documents as the Administrative Agent shall reasonably request to evidence and confirm the respective interests and obligations of the Lenders after giving effect to any exchange of Lenders’ interests pursuant to arrangements relating thereto among the Lenders, and each Lender agrees to surrender any Notes or other promissory notes originally received by it in connection with its Loans hereunder to the Administrative Agent against delivery of any Notes or other promissory notes so executed and delivered.
(b) In addition to the accounts and records referred to in Section 2.11(a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records and, in the case of the Administrative Agent, entries in the Register, evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
(c) Entries made in good faith by the Administrative Agent in the Register pursuant to Section 2.11(a) and Section 2.11(b), and by each Lender in its account or accounts pursuant to Section 2.11(a) and Section 2.11(b), shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement and the other Loan Documents, absent manifest error; provided that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement and the other Loan Documents.
SECTION 2.12 Payments Generally. (a) All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense (other than payment in full), recoupment or setoff. Except as otherwise expressly provided herein and except with respect to principal of and interest on Loans denominated in Euros or Sterling, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. Except as otherwise expressly provided herein, all payments by the Borrower hereunder
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with respect to principal and interest on Loans denominated in Euros or Sterling shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in such Euros or Sterling (as applicable) and in same day funds not later than 2:00 p.m. (London time) on the dates specified herein. If, for any reason, the Borrower is prohibited by any Law from making any required payment hereunder in Euros or Sterling, the Borrower shall make such payment in Dollars in the Dollar Amount of the Euro or Sterling (as applicable) payment amount. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 4:00 p.m. shall be deemed received on the next succeeding Business Day in the Administrative Agent’s sole discretion and any applicable interest or fee shall continue to accrue to the extent applicable.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day in relation to the Borrower, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurodollar Rate Loans, EURIBOR Loans, SONIA Daily Simple Loans or Term SOFR Loans, as the case may be, to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(c) Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto. If and to the extent that such payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i)if the Borrower failed to make such payment, each Lender shall forthwith on demand repay to the Administrative Agent the portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in immediately available funds at the applicable Federal Funds Rate from time to time in effect; and
(ii)if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the
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Borrower may have against any Lender as a result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this Section 2.12(c) shall be conclusive, absent manifest error.
(d) 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 2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article 4 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Loan or to fund any such participation 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 purchase its participation.
(f) 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.
(g) Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (i) the Outstanding Amount of all Loans outstanding at such time and (ii) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
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SECTION 2.13 Sharing of Payments. If, other than as expressly provided elsewhere herein (including, without limitation, any prepayments made in connection with Section 2.05(a)(iv), Section 2.17, Section 2.18 or Section 10.07), any Lender shall obtain on account of the Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it, any payment (whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in the Loans made by them and/or such subparticipations in the participations in L/C Obligations or Swing Line Loans held by them, as the case may be, as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Loans or such participations, as the case may be, pro rata with each of them; provided that if all or any portion of such excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon. The Borrower agrees that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by Law, exercise all its rights of payment (including the right of setoff, but subject to Section 10.09) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 2.13 and will in each case notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section 2.13 shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased.
SECTION 2.14 Increase in Commitments. (a) Upon notice to the Administrative Agent, at any time after the Closing Date, the Borrower may request Additional Term Commitments or Additional Revolving Credit Commitments; provided that (i) after giving effect to any such addition, the aggregate amount of Additional Term Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed (A) in the case of this Clause (A), on and after the Tenth Amendment Effective Date, the greater of (i) $920,000,000 and (ii) 100% of Consolidated EBITDA of the Borrower Parties for the most recent Test Period for which financial statements have been (or are required to have been) furnished pursuant to Section 6.01 ended on or prior to the date of the incurrence of such Additional Term Commitments or Additional Revolving Credit Commitments, (the “General Incremental Availability”), plus (B) additional amounts to the extent that in the case of this clause (B) only the Senior Secured Net Leverage Ratio as of the last day of the most recently ended Test Period for which financial statements are internally available, after giving Pro Forma Effect to any such Additional Term Commitments or Additional Revolving Credit Commitments (calculated as if such Additional Revolving Credit Commitments were fully drawn on the applicable test date), as applicable, shall not exceed, on the date of the closing date with respect thereto or, if the Borrower has made an LCT Election with respect thereto, on the LCT Test Date with respect thereto, 2.50:1.00 (such amounts, the “Ratio Incremental Availability”) (it being agreed that (I) the Borrower may designate any such Additional Term Commitments and Additional Revolving Credit Commitments as being incurred pursuant to the General Incremental Availability or Ratio Incremental Availability in this sole discretion, and (II) so long as the all-in yield did not require a change to the interest rate margins pursuant to clause (vi)
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below when incurred, the Borrower may re-designate any such Additional Term Commitments and Additional Revolving Credit Commitments (or corresponding Additional Term Loans or Additional Revolving Credit Loans, as applicable) originally designated to be incurred under the General Incremental Availability to be incurred under Ratio Incremental Availability if, at the time of such re-designation, the Borrower would be permitted to incur under this Section 2.14 the aggregate principal amount of such Indebtedness being so re-designated), (ii) any such addition shall be in an aggregate amount of $50,000,000 or any whole multiple of $1,000,000 in excess thereof (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term Commitments and Additional Revolving Credit Commitments set forth in clause (i) to this proviso), (iii) (A) the final maturity date of any Additional Term Loans shall be no earlier than the latest Maturity Date for any then outstanding Term Loans and (B) the final maturity date of any Additional Revolving Credit Loans shall be no earlier than the latest Maturity Date for any then outstanding Revolving Credit Commitments; provided that the amortization schedule with respect to any Additional Term Loans shall be determined by the Borrower and the Additional Term Lenders of such Additional Term Loans, (iv) the weighted average life to maturity of the Additional Term Loans shall be no shorter than the remaining weighted average life to maturity of the then-existing tranche of Term Loans with the latest Maturity Date, (v) the loans made pursuant to any Additional Term Loan Commitments may rank junior in right of security with the Term Loan Facility or may be unsecured, in which case such Additional Term Loan Commitments and corresponding loans will be established as a separate facility than the Facilities hereunder and (vi) solely with respect to any Additional Term Commitments incurred less than six months after the Tenth Amendment Effective Date that utilize the Ratio Incremental Availability, the all-in yield (whether in the form of interest rate margins, original issue discount, upfront fees or a Eurodollar Rate (used herein as defined in this Agreement prior to giving effect to the Twelfth Amendment) floor greater than 0.75%, with such increased amount being equated to interest margin for purposes of determining any increase to the applicable interest margin under the Term Loan Facility) applicable to any such Additional Term Commitments will be determined by the Borrower and the lenders providing such Additional Term Commitments, but will not be more than 0.50% higher than the corresponding all-in yield (after giving effect to interest rate margins (including the Eurodollar Rate floor), original issue discount and upfront fees) for each then-existing tranche under the Term Loan Facility unless the interest rate margins with respect to such existing Term Loan Facility are increased by an amount equal to the difference between the all-in yield with respect to such Additional Term Commitments and the corresponding all-in yield on the existing Term Loan Facility minus 0.50%.
(b) If any Additional Term Commitments or Additional Revolving Credit Commitments are added in accordance with this Section 2.14, the Administrative Agent and the Borrower shall determine the effective date (the “Additional Commitments Effective Date”) and the final amount of such addition. The Administrative Agent shall promptly notify the Borrower and the Lenders (which may include Persons reasonably acceptable to the Administrative Agent and the Borrower that were not Lenders prior to the Additional Commitments Effective Date) of the final amount of such addition and the Additional Commitments Effective Date. As a condition precedent to such addition, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (i) the representations and warranties contained in Article 5 and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.14(b), the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a)
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and (b), respectively, of Section 6.01 and (ii) no Default or Event of Default exists immediately before or immediately after giving effect to such addition; provided that if the Borrower has made an LCT Election in the case of any Borrowing of Additional Term Loans incurred to finance a Limited Condition Transaction, the foregoing conditions shall instead be (1)(A) the representations and warranties specified in the foregoing clause (i) shall be true and correct to the extent required therein as of the LCT Test Date and (B) representations of the type specified in the parenthetical to Section 1.11(c)(ii) shall be true and correct (to the extent required in Section 1.11(c)(ii)) as of the Additional Commitments Effective Date and (2)(A) no Default or Event of Default exists as of the LCT Test Date and (B) no Specified Event of Default exists immediately before or would exist immediately after such addition and the consummation of the Limited Condition Transaction. On each Additional Commitments Effective Date, each applicable Lender, Eligible Assignee or other Person which is providing an Additional Term Commitment or Additional Revolving Credit Commitment (i) shall become a “Term Lender” or “Revolving Credit Lender,” as applicable, for all purposes of this Agreement and the other Loan Documents and (ii) in the case of any Additional Term Commitment, shall make an Additional Term Loan to the Borrower in a principal amount equal to such Additional Term Commitment, and such Additional Term Loan shall be a “Term Loan” for all purposes of this Agreement and the other Loan Documents.
(c) Any other terms of and documentation entered into in respect of any Additional Term Loans made or any Additional Revolving Credit Commitments provided, in each case pursuant to this Section 2.14, to the extent not consistent with the Term Loans or the Revolving Credit Commitments, as the case may be, shall be reasonably satisfactory to the Administrative Agent. Any Additional Term Loans or Additional Revolving Credit Commitments, as applicable, made or provided pursuant to this Section 2.14 shall be evidenced by one or more entries in the Register maintained by the Administrative Agent in accordance with the provisions set forth in Section 2.11.
(d) This Section 2.14 shall supersede any provisions in Section 10.01 to the contrary. Notwithstanding any other provision of any Loan Document, the Loan Documents may be amended by the Agent and the Loan Parties, if necessary, to provide for terms applicable to each Additional Term Commitment and/or Additional Revolving Credit Commitment, as the case may be.
SECTION 2.15 [Intentionally omitted].
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SECTION 2.16 Currency Equivalents. (a) The Administrative Agent shall determine the Dollar Amount of each Euro Loan, Sterling Revolving Credit Loan and L/C Obligation in respect of Letters of Credit denominated in Euros or Sterling (i) in the case of any Term Loan, as of the Closing Date, and (ii) otherwise, (A) as of the first day of each Interest Period applicable thereto and (B) as of the end of each fiscal quarter of the Borrower, and shall promptly notify the Borrower and the Lenders of each Dollar Amount so determined by it. Each such determination shall be based on the Exchange Rate (x) on the date of the related Borrowing Request for purposes of the initial such determination for any Euro Loan or Sterling Revolving Credit Loan and (y) on the fourth Business Day prior to the dates as of which such Dollar Amount is to be determined, for purposes of any subsequent determination.
(b) If after giving effect to any such determination of a Dollar Amount, the aggregate Outstanding Amount of the Revolving Credit Loans, the Swing Line Loans and the L/C Obligations exceeds the aggregate Revolving Credit Commitments then in effect by 5% or more, the Borrower shall, within five (5) Business Days of receipt of notice thereof from the Administrative Agent setting forth such calculation in reasonable detail, prepay or cause to be prepaid outstanding Revolving Credit Loans and/or Swing Line Loans (as selected by the Borrower and notified to the Lenders through the Administrative Agent not less than three (3) Business Days prior to the date of prepayment) or take other action (including, in the Borrower’s discretion, cash collateralization of L/C Obligations in amounts from time to time equal to such excess) to the extent necessary to eliminate any such excess.
SECTION 2.17 Refinancing Amendments. At any time after the Closing Date, the Borrower may obtain, from any Lender or any Affiliates thereof or any other lender that is an Eligible Assignee, Credit Agreement Refinancing Indebtedness in respect of all or any portion of the Loans or Commitments then outstanding under this Agreement (which for purposes of this Section 2.17 will be deemed to include any then outstanding Other Loans, Other Commitments, Additional Term Loans, Additional Revolving Credit Commitments, Extended Term Loans or Extended Revolving Credit Commitments), in the form of Other Loans or Other Commitments in each case pursuant to a Refinancing Amendment. Any Other Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Refinancing Amendment. The effectiveness of any Refinancing Amendment shall be subject to the satisfaction or waiver on the date thereof of each of the conditions set forth in Section 4.02 and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of customary legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements generally consistent with those delivered on the Closing Date under Section 4.01 (which in the case of legal opinions, take into account changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent). Each Credit Agreement Refinancing Indebtedness incurred under this Section 2.17 shall (i) be in an aggregate principal amount that is not less than $10,000,000 and (ii) (x) with respect to any Other Loans or Other Commitments in the case of any Revolving Credit Loans or Revolving Credit Commitments being refinanced, will have a maturity date that is not prior to the maturity date of the Revolving Credit Loans or Revolving Credit Commitments being refinanced and (y) with respect to any Other Loans or Other Commitments in the case of any Term Loans being refinanced, will have a maturity date that is not prior to the maturity date of, and will have a Weighted Average Life to Maturity that is not shorter than, the Term Loans being refinanced. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Loans and Commitments subject
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thereto as Other Loans and/or Other Commitments). Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.17. This Section 2.17 shall supersede any provisions in Section 2.05, Section 2.13 or Section 10.01 to the contrary.
SECTION 2.18 Extensions of Loans and Commitments.
(a)Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time to time by the Borrower to all Lenders of Term Loans with a like Maturity Date or Revolving Credit Commitments with a like Maturity Date, in each case on a pro rata basis (based on the aggregate outstanding principal amount of the respective Term Loans or Revolving Credit Commitments with a like Maturity Date, as the case may be) and on the same terms to each such Lender, the Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the Maturity Date of each such Lender’s Term Loans and/or Revolving Credit Commitments and otherwise modify the terms of such Term Loans and/or Revolving Credit Commitments pursuant to the terms of the relevant Extension Offer (including, without limitation, by increasing the interest rate or fees payable in respect of such Term Loans and/or Revolving Credit Commitments (and related outstandings) and/or modifying the amortization schedule in respect of such Lender’s Term Loans) (each, an “Extension,” and each group of Term Loans or Revolving Credit Commitments, as applicable, in each case as so extended, as well as the original Term Loans and the original Revolving Credit Commitments (in each case not so extended), being a “tranche”; any Extended Term Loans (as defined below) shall constitute a separate tranche of Term Loans from the tranche of Term Loans from which they were converted, and any Extended Revolving Credit Commitments (as defined below) shall constitute a separate tranche of Revolving Credit Commitments from the tranche of Revolving Credit Commitments from which they were converted), so long as the following terms are satisfied: (i) no Event of Default shall have occurred and be continuing at the time the offering document in respect of an Extension Offer is delivered to the Lenders and no Event of Default shall exist immediately after the effectiveness of any Extended Loans, (ii) except as to interest rates, fees and final maturity (which shall be determined by the Borrower and set forth in the relevant Extension Offer), the Revolving Credit Commitment of any Revolving Credit Lender that agrees to an extension with respect to such Revolving Credit Commitment (an “Extending Revolving Credit Lender”) extended pursuant to an Extension (an “Extended Revolving Credit Commitment”), and the related outstandings, shall be a Revolving Credit Commitment (or related outstandings, as the case may be) with the same terms as the original Revolving Credit Commitments and related outstandings (except for covenants or other provisions contained therein applicable to periods only after the Latest Maturity Date); provided that subject to the provisions of Sections 2.03(l) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exist Extended Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated in on a pro rata basis by all Lenders with Revolving Credit Commitments in accordance with their pro rata portion of the Revolving Credit Commitments (and except as provided in Sections 2.03(l) and 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued) and all borrowings under Revolving Credit Commitments and repayments thereunder shall be made on a pro rata basis (except for (A) payments of interest and fees at different rates on Extended Revolving Credit Commitments (and related outstandings) and (B) repayments required upon the maturity date of the non-extending Revolving Credit Commitments), (iii) except as to interest rates, fees, amortization, final maturity date, premium, required prepayment dates and participation in prepayments (which shall, subject to immediately succeeding clauses (iv), (v), (vi) and (vii), be determined by the Borrower and set forth in the
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relevant Extension Offer), the Term Loans of any Lender that agrees to an extension with respect to such Term Loans (an “Extending Term Lender”) extended pursuant to any Extension (“Extended Term Loans”) shall have the same terms as the tranche of Term Loans subject to such Extension Offer (except for covenants or other provisions contained therein applicable only to periods after the then Latest Maturity Date), (iv) the amortization schedule applicable to any Extended Term Loans pursuant to Section 2.07 for the periods prior to the original Loan Maturity Date may not be increased, (v) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans extended thereby, (vi) any Extended Term loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder, in each case as specified in the applicable Extension Offer, (vii) if the aggregate principal amount of Term Loans (calculated on the face amount thereof) or Revolving Credit Commitments, as the case may be, in respect of which Term Lenders or Revolving Credit Lenders, as the case may be, shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Term Loans or Revolving Credit Commitments, as the case may be, offered to be extended by the Borrower pursuant to such Extension Offer, then the Term Loans or Revolving Credit Loans, as the case may be, of such Term Lenders or Revolving Credit Lenders, as the case may be, shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Term Lenders or Revolving Credit Lenders, as the case may be, have accepted such Extension Offer, (vii) all documentation in respect of such Extension shall be consistent with the foregoing and (ix) any applicable Minimum Extension Condition shall be satisfied unless waived by the Borrower.
(b)With respect to all Extensions consummated by the Borrower pursuant to this Section 2.18, (i) such Extensions shall not constitute voluntary or mandatory payments or prepayments for purposes of Section 2.05 and (ii) each Extension Offer is required to be in a minimum amount of $10,000,000, provided that the Borrower may at its election specify as a condition (a “Minimum Extension Condition”) to consummating any such Extension that a minimum amount (to be determined and specified in the relevant Extension Offer in the Borrower’s sole discretion and may be waived by the Borrower) of Term Loans or Revolving Credit Commitments (as applicable) of any or all applicable tranches be tendered. The Administrative Agent and the Lenders hereby consent to the transactions contemplated by this Section 2.18 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Term Loans and/or Extended Revolving Credit Commitments on such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement (including, without limitation, Sections 2.05, 2.13 and 10.01) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section 2.18.
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(c) No consent of any Lender or the Administrative Agent shall be required to effectuate any Extension, other than (A) the consent of each Lender agreeing to such Extension with respect to one or more of its Term Loans and/or Revolving Credit Commitments (or a portion thereof) and (B) with respect to any Extension of the Revolving Credit Commitments, the consent of the L/C Issuer, which consent shall not be unreasonably withheld or delayed. All Extended Term Loans, Extended Revolving Credit Commitments and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents and, unless (x) the Loans or Commitments being extended by this Section 2.18 are unsecured or (y) otherwise agreed by the Borrower and the Lender providing such Extension, such Extended Term Loans and Extended Revolving Credit Commitments shall be secured by the Collateral on a pari passu basis with all other applicable secured Obligations under this Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize the Administrative Agent and the Collateral Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrower as may be necessary in order to establish new tranches or sub-tranches in respect of Revolving Credit Commitments or Term Loans so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.18.
(d) In connection with any Extension, the Borrower shall provide the Administrative Agent at least five (5) Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof.
(e) This Section 2.18 shall supersede any provisions in Section 2.05, Section 2.13 or Section 10.01 to the contrary.
Article 3
TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY
SECTION 3.01 Taxes.
(a)For purposes of this Section 3.01 and Section 10.15, the term “Applicable Law” includes FATCA, and the term “Lender” includes any L/C Issuer and any Swing Line Lender (including for purposes of the definition of any defined term that refers to “Lender” and which defined term is used in this Section 3.01 or Section 10.15).
(b)Any and all payments to or for the account of any Agent or Lender by or on account of any obligation of the Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 3.01) the applicable Lender receives an amount equal to the sum it would have received had no such deduction or withholding been made.
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(c)The Borrower shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent, timely reimburse the Administrative Agent for the payment by it of, any Other Taxes.
(d)The Borrower agrees to indemnify each Agent and each Lender for (i) the full amount of Indemnified Taxes and Other Taxes (including any Indemnified Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable under this Section 3.01) payable or paid by such Agent or such Lender, or required to be deducted or withheld from a payment by the Borrower to or for the benefit of such Lender, and (ii) any additions to tax, penalties, interest and reasonable expenses arising therefrom or with respect thereto, in each case whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided that such Agent or Lender, as the case may be, provides the Borrower with a certificate, with reasonable supporting detail, as to the amount of such payment or liability. Payment under this Section 3.01(d) shall be made within ten (10) days after the date such Lender or such Agent makes a written demand therefor.
(e)Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.07(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e).
(f)As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority pursuant to this Section 3.01, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt, if any, issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(g)If the Borrower has paid any amount as indemnification of any Lender pursuant to this Section 3.01, then such Lender shall cooperate in good faith with the Borrower in filing for and seeking any refunds or credits of such Taxes if, in the judgment of such Lender such cooperation would not subject such Lender to any unreimbursed cost or expense and would not otherwise be materially disadvantageous to it or unlawful. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.01 (including by the payment of additional amounts pursuant to this Section 3.01), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay
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such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph (g) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(h)Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 3.01(b) or Section 3.01(d) with respect to such Lender it will, if requested by the Borrower, use commercially reasonable efforts (subject to such Lender’s overall internal policies of general application and legal and regulatory restrictions) to avoid the consequences of such event, including to designate another Lending Office for any Loan or Letter of Credit affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided further that nothing in this Section 3.01(h) shall affect or postpone any of the Obligations of the Borrower or the rights of the Lender pursuant to Section 3.01(b) and Section 3.01(d).
(i)For purposes of determining withholding Taxes imposed under FATCA, the Loan Parties and Administrative Agent shall treat (and the Lenders authorize the Administrative Agent to treat) the Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
(j)Each party’s obligations under this Section 3.01 and Section 10.15 shall survive assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.
SECTION 3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, EURIBOR Loans or RFR Loans, as applicable, or to determine or charge interest rates based upon the Eurodollar Rate, EURIBOR Loans or RFR Loans, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such Lender to make Eurodollar Rate Loans, EURIBOR Loans or RFR Loans or continue Eurodollar RateTerm SOFR Loans or to convert Base Rate Loans to Eurodollar RateTerm SOFR Loans shall be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrower (i) may revoke any pending request for a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans, EURIBOR Loans or RFR Loans, as the case may be, or (ii) shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar RateTerm SOFR Loans or RFR Loans denominated in Dollars of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar RateTerm SOFR Loans or RFR Loans denominated in Dollars to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans or RFR Loans denominated in Dollars.Term SOFR Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted. Each Lender agrees to designate a different Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender.
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SECTION 3.03 Inability to Determine Rates. If the Required Lenders determine that for any reason adequate and reasonable means do not exist for determining the Eurodollar Rate, EURIBOR Rate or RFR, as applicable, for any requested Interest Period with respect to a proposed Eurodollar Rate Loan, EURIBOR Loan or RFR Loan, as applicable, or that the Eurodollar Rate, EURIBOR Rate or RFR, as applicable, for any requested Interest Period with respect to a proposed Eurodollar Rate Loan, EURIBOR Loan or RFR Loan, as applicable, does not adequately and fairly reflect the cost to such Lenders of funding such Loan, or that Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and the Interest Period of such Eurodollar Rate Loan EURIBOR Loan or RFR Loan, as applicable, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate Loans, EURIBOR Loans or RFR Loans, as applicable, shall be suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of EURIBOR Loans, Eurodollar Rate Loans or RFR Loans, or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein and in the case of any request for any affected Borrowing in any currency other than Dollars, if applicable, then such request shall be ineffective. Any outstanding affected RFRTerm SOFR Loans denominated in Dollars, if applicable, will be deemed to have been converted into Base Rate Loans at the end of the applicable Interest Period and any outstanding affected RFR Loans or EURIBOR Loans, in each case, denominated in any currency other than Dollars, at the Borrower’s election, shall either (I) be converted into Base Rate Loans denominated in Dollars (in an amount equal to the Dollar equivalent of such currency) immediately or, in the case of EURIBOR Loans, at the end of the applicable Interest Period or (II) be prepaid in full immediately or, in the case of EURIBOR Loans, at the end of the applicable Interest Period; provided that, with respect to any SONIA Daily Simple Loan, if no election is made by the Borrower by the date that is three (3) Business Days after receipt by the Borrower of such notice, the Borrower shall be deemed to have elected clause (I) above.
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SECTION 3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar RateTerm SOFR Loans. (a) If any Lender reasonably determines in good faith that as a result of any Change in Law after the date hereof, or such Lender’s compliance therewith, there shall be any increase in the cost to such Lender of agreeing to make or making, funding or maintaining Eurodollar Rate Loans, EURIBOR Loans, RFR Loans or (as the case may be) issuing or participating in Letters of Credit, or a reduction in the amount received or receivable by such Lender in connection with any of the foregoing or such Lender shall become subject to any Taxes on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto (excluding for purposes of this Section 3.04(a) any such increased costs or reduction in amount resulting from (i) any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) and (ii) reserve requirements contemplated by Section 3.04(c)), then from time to time the Borrower (A) may revoke any pending request for a Borrowing of Eurodollar Rate Loans, EURIBOR Loans or RFR Loans, as applicable, conversion to or continuation of Eurodollar RateTerm SOFR Loans, in the case of Term Loans only, or (B) within thirty (30) days after written demand by such Lender setting forth in reasonable detail such increased costs or reduction (with a copy of such demand to the Administrative Agent given in accordance with Section 3.06), the Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such increased cost or reduction.
(b) If any Lender reasonably determines in good faith that a Change in Law (other than with respect to Taxes) after the date hereof has the effect of reducing the rate of return on the capital of such Lender or any corporation controlling such Lender as a consequence of such Lender’s obligations hereunder (taking into consideration its policies with respect to capital adequacy and such Lender’s desired return on capital), then from time to time (i) the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans, EURIBOR Loans or RFR Loans, as applicable, (ii) within thirty (30) days after written demand by such Lender setting forth in reasonable detail the charge and the calculation of such reduced rate of return (with a copy of such demand to the Administrative Agent given in accordance with Section 3.06), the Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such reduction.
(c) The Borrower shall pay to each Lender, (i) as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loans, EURIBOR LoansLoan or RFR LoansLoan, as applicable, equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive in the absence of manifest error), and (ii) as long as such Lender shall be required to comply with any reserve ratio requirement or analogous requirement of any other central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Eurodollar Rate Loans, EURIBOR Loans or RFR Loans, as applicable, such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive absent manifest error) which in each case shall be due and payable on each date on which interest is payable on such Loan; provided the Borrower shall have received at least thirty (30) days’ prior notice (with a copy to the Administrative Agent) of such additional interest or cost from such Lender. If a Lender fails to give notice thirty (30) days prior to the relevant Interest Payment Date, such additional interest or cost shall be due and payable thirty (30) days from receipt of such notice.
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(d) The Borrower shall not be required to compensate a Lender pursuant to Section 3.04(a), Section 3.04(b) or Section 3.04(c) for any such increased cost or reduction incurred more than ninety (90) days prior to the date that such Lender demands, or notifies the Borrower of its intention to demand, compensation therefor; provided that, if the circumstance giving rise to such increased cost or reduction is retroactive, then such 90-day period referred to above shall be extended to include the period of retroactive effect thereof.
(e) If any Lender requests compensation under this Section 3.04, then such Lender will, if requested by the Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan or Letter of Credit affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided further that nothing in this Section 3.04(e) shall affect or postpone any of the Obligations of the Borrower or the rights of such Lender pursuant to Section 3.04(a), Section 3.04(b), Section 3.04(c) or Section 3.04(d).
SECTION 3.05 Funding Losses. Upon demand of any Lender from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a)any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan or Daily Simple SONIA Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise); or
(b)any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower;
including any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained (but excluding in any event any loss of Applicable Rate or other margin).
For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurodollar RateTerm SOFR Loan made by it at the Eurodollar RateAdjusted Term SOFR rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar RateTerm SOFR Loan was in fact so funded.
SECTION 3.06 Matters Applicable to Requests for Compensation. (a) Any Agent or any Lender claiming compensation under this Article 3 shall deliver a certificate to the Borrower setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder, which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods.
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(b) With respect to any Lender’s claim for compensation under Section 3.02, Section 3.03 or Section 3.04, the Borrower shall not be required to compensate such Lender for any amount incurred more than ninety (90) days prior to the date that such Lender notifies the Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such increased cost or reduction is retroactive, then such 90-day period referred to above shall be extended to include the period of retroactive effect thereof. If any Lender requests compensation by the Borrower under Section 3.04, the Borrower may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender to make or continue Eurodollar RateTerm SOFR Loans from one Interest Period to another, or to convert Base Rate Loans into Eurodollar RateTerm SOFR Loans, until the event or condition giving rise to such request ceases to be in effect (in which case the provisions of Section 3.06(c) shall be applicable); provided that such suspension shall not affect the right of such Lender to receive the compensation so requested.
(c) If the obligation of any Lender to make or continue any Eurodollar RateTerm SOFR Loan from one Interest Period to another, or to convert Base Rate Loans into Eurodollar RateTerm SOFR Loans shall be suspended pursuant to Section 3.06(b) hereof, such Lender’s Eurodollar RateTerm SOFR Loans shall be automatically converted into Base Rate Loans on the last day(s) of the then current Interest Period(s) for such Eurodollar RateTerm SOFR Loans (or, in the case of an immediate conversion required by Section 3.02, on such earlier date as required by Law) and, unless and until such Lender gives notice as provided below that the circumstances specified in Section 3.01, Section 3.02, Section 3.03 or Section 3.04 hereof that gave rise to such conversion no longer exist:
(i)to the extent that such Lender’s Eurodollar RateTerm SOFR Loans have been so converted, all payments and prepayments of principal that would otherwise be applied to such Lender’s Eurodollar RateTerm SOFR Loans shall be applied instead to its Base Rate Loans; and
(ii)all Loans that would otherwise be made or continued as Eurodollar RateTerm SOFR Loans from one Interest Period to another by such Lender shall be made or continued instead as Base Rate Loans, and all Base Rate Loans of such Lender that would otherwise be converted into Eurodollar RateTerm SOFR Loans shall remain as Base Rate Loans.
(d) If any Lender gives notice to the Borrower (with a copy to the Administrative Agent) that the circumstances specified in Section 3.01, Section 3.02, Section 3.03 or Section 3.04 hereof that gave rise to the conversion of such Lender’s Eurodollar RateTerm SOFR Loans pursuant to this Section 3.06 no longer exist (which such Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when Eurodollar RateTerm SOFR Loans made by other Lenders are outstanding, such Lender’s Base Rate Loans shall be automatically converted irrespective of whether such conversion results in greater than twenty-five (25) Interest Periods being outstanding under this Agreement, on the first day(s) of the next succeeding Interest Period(s) for such outstanding Eurodollar RateTerm SOFR Loans, to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders holding Eurodollar RateTerm SOFR Loans and by such Lender are held pro rata (as to principal amounts, interest rate basis, and Interest Periods) in accordance with their respective Commitments.
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SECTION 3.07 Replacement of Lenders Under Certain Circumstances. (a) If at any time (x) the Borrower becomes obligated to pay additional amounts or indemnity payments described in Section 3.01 or Section 3.04 as a result of any condition described in such Sections or any Lender ceases to make Eurodollar Rate Loans or RFR Loans as a result of any condition described in Section 3.02 or Section 3.04, (y) any Lender becomes a Defaulting Lender or (z) any Lender becomes a Non Consenting Lender, then the Borrower may, on ten (10) Business Days’ prior written notice to the Administrative Agent and such Lender, replace such Lender (in its capacity as a Lender under the applicable Facility, if the underlying matter in respect of which such Lender has become a Non-Consenting Lender relates to a certain Class of Loans or Commitments) by causing such Lender to (and such Lender shall be obligated to) assign pursuant to Section 10.07(b) (with the assignment fee to be paid by the Borrower in such instance) all of its rights and obligations under this Agreement (in respect of the applicable Class of Loans or Commitments if the underlying matter in respect of which such Lender has become a Non-Consenting Lender relates to a certain Class of Loans or Commitments) to one or more Eligible Assignees; provided that (A) in the case of any Eligible Assignees in respect of Non-Consenting Lenders, the replacement Lender shall agree to the consent, waiver or amendment to which the Non-Consenting Lender did not agree and (B) neither the Administrative Agent nor any Lender shall have any obligation to the Borrower to find a replacement Lender or other such Person.
(b) Any Lender being replaced pursuant to Section 3.07(a) above shall (i) execute and deliver an Assignment and Assumption with respect to such Lender’s Commitment and outstanding Loans of the applicable Class and, if applicable, participations in L/C Obligations and Swing Line Loans, and (ii) deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent. Pursuant to such Assignment and Assumption, (i) the assignee Lender shall acquire all or a portion, as the case may be, of the assigning Lender’s Commitment and outstanding Loans of the applicable Class and, if applicable, participations in L/C Obligations and Swing Line Loans, (ii) all obligations of the Borrower owing to the assigning Lender relating to the Loans and participations so assigned shall be paid in full by the assignee Lender to such assigning Lender concurrently with such assignment and assumption and (iii) upon such payment and, if so requested by the assignee Lender, delivery to the assignee Lender of the appropriate Note or Notes executed by the Borrower, the assignee Lender shall become a Lender hereunder and the assigning Lender shall cease to constitute a Lender hereunder with respect to such assigned Loans, Commitments and participations, except with respect to indemnification provisions under this Agreement, which shall survive as to such assigning Lender.
(c)Notwithstanding anything to the contrary contained above, (i) the Lender that acts as the L/C Issuer may not be replaced hereunder at any time that it has any Letter of Credit outstanding hereunder unless arrangements reasonably satisfactory to such L/C Issuer (including the furnishing of a back-up standby letter of credit in form and substance, and issued by an issuer reasonably satisfactory to such L/C Issuer or the depositing of cash collateral into a cash collateral account in amounts and pursuant to arrangements reasonably satisfactory to such L/C Issuer) have been made with respect to such outstanding Letter of Credit and (ii) the Lender that acts as the Administrative Agent may not be replaced in such capacity hereunder except in accordance with the terms of Section 9.06.
(d)In the event that (i) the Borrower or the Administrative Agent has requested the Lenders to consent to a departure or waiver of any provisions of the Loan Documents or to agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all affected Lenders in accordance with the terms of Section 10.01 or all the Lenders with respect to a certain Class of Loans or Commitments and (iii) the Required Lenders have agreed to such consent, waiver or amendment, then any Lender who does not agree to such consent, waiver or amendment shall be deemed a “Non-Consenting Lender.”
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SECTION 3.08 Survival. All of the Borrower’s obligations under this Article 3 shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.
Article 4
CONDITIONS PRECEDENT
SECTION 4.01 Conditions Precedent to Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction (or waiver) of the following conditions precedent:
(a)The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles or pdf electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each in form and substance reasonably satisfactory to the Administrative Agent:
(i)executed counterparts of this Agreement;
(ii)executed counterparts of each Guaranty;
(iii)a Note executed by the relevant Original Borrower in favor of each Lender requesting a Note, if any;
(iv)the Closing Date Security Agreements, duly executed by each of the relevant Loan Parties, together with, if applicable:
(A)certificates representing the Pledged Equity referred to therein, accompanied by undated stock powers executed in blank or, if applicable, other appropriate instruments of transfer and instruments evidencing the Pledged Debt, if any, indorsed in blank, and
(B)copies of all searches with respect to the Collateral, together with copies of the financing statements (or similar documents) disclosed by such searches, and accompanied by evidence reasonably satisfactory to the Administrative Agent that the Liens indicated in any such financing statement (or similar document) would be permitted by Section 7.01 or have been or contemporaneously will be released or terminated or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent, and all proper financing statements, duly prepared for filing under the Uniform Commercial Code or other applicable Law in all jurisdictions necessary in order to perfect (if and to the extent required to be perfected under the Security Agreement) and protect the Liens created under the Closing Date Security Agreements, covering the Collateral of the relevant Original Borrower described in the relevant Closing Date Security Agreement;
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(v)a certificate substantially in the form of Exhibit Q attesting to the Solvency of the Loan Parties and their Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to the Transactions (as defined herein on the Closing Date), from the Chief Financial Officer (or another Responsible Officer) of the Original BV Borrower;
(vi)[intentionally omitted]
(vii)[intentionally omitted];
(viii)evidence that all insurance (including without limitation title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee under each property insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named;
(ix)a Request for Credit Extension relating to the initial Credit Extensions in accordance with the requirements hereof;
(x)an opinion of each of (A) Kirkland & Ellis LLP, special counsel to the Loan Parties, (B) Loyens Loeff N.V., Dutch counsel to the Loan Parties and (C) Van Doorne N.V., Dutch counsel to the Administrative Agent, each addressed to each Agent and each Lender and each in form and substance reasonably satisfactory to the Administrative Agent;
(xi)such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(xii)such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer of such Loan Party authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; and
(xiii)certified copies of each of the Senior Note Documents (as defined herein on the Closing Date), each in form and substance reasonably satisfactory to the Administrative Agent and each duly executed by the parties thereto, which shall be in full force and effective in accordance with their respective terms as of the Closing Date.
(b)[Intentionally omitted]
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(c)The representations and warranties contained in Article 5 shall be true and correct in all material respects on and as of the Closing Date.
(d)[Intentionally omitted]
(e)No Default shall exist, or would result from such proposed initial Credit Extension or from the application of the proceeds therefrom.
(f)[Intentionally omitted]
(g)All fees and expenses required to be paid on or before the Closing Date and invoiced (with reasonably supporting documentation) and delivered to the Original Borrowers before the Closing Date shall have been paid in full in cash.
(h)The Administrative Agent shall have received all documentation and other information requested at least 5 Business Days prior to the Closing Date with respect to each Loan Party required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
SECTION 4.02 Conditions to All Credit Extensions After the Closing Date. The obligation of each Lender to honor any Request for Credit Extension (other than in connection with (i) a Credit Extension to be made on the Closing Date, or (ii) a Committed Loan Notice or other notice requesting only a conversion of Loans to the other Type, or otherwise or a continuation of Eurodollar RateTerm SOFR Loans or EURIBOR Loans) is subject to satisfaction (or waiver) of the following conditions precedent:
(a)The representations and warranties of the Borrower and each other Loan Party contained in Article 5 or any other Loan Document shall be true and correct in all material respects on and as of the date of such Credit Extension, except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, (ii) that for purposes of this Section 4.02, the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be deemed to refer to the most recent financial statements furnished pursuant to Section 6.01(a) and Section 6.01(b) and, in the case of the financial statements furnished pursuant to Section 6.01(b), the representations contained in Section 5.05(a), as modified by this clause (ii), shall be qualified by the statement that such financial statements are subject to the absence of footnotes and year-end audit adjustments and (iii) to the extent that such representations and warranties contain a materiality qualification, such representations and warranties shall be accurate in all respects; provided that, if the Borrower has made an LCT Election in the case of any Borrowing of any Additional Term Loans incurred to finance a Limited Condition Transaction, the truth and accuracy of such representations and warranties shall be limited to customary “specified representations”.
(b)No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds therefrom; provided that if the Borrower has made an LCT Election in the case of any Borrowing of any Additional Term Loans incurred to finance a Limited Condition Transaction, the condition shall be (i) no Default or Event of Default exists, or would result from such Proposed Credit Extension or from the application of the proceeds therefrom, as of the LCT Test Date and (ii) no Specified Event of Default exists immediately before or would exist immediately after proposed Credit Extension and the consummation of the applicable Limited Condition Transaction
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(c)The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
Each Request for Credit Extension (other than (i) a Credit Extension to be made on the Closing Date, or (ii) a Committed Loan Notice or other notice requesting only a conversion of Loans to the other Type or otherwise, or a continuation of Eurodollar RateTerm SOFR Loans or EURIBOR Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Section 4.02(a) and Section 4.02(b) have been satisfied on and as of the date of the applicable Credit Extension.
Article 5
REPRESENTATIONS AND WARRANTIES
Each of the Original Borrowers represent and warrant to the Agents and the Lenders on the Closing Date, and the Borrower represents and warrants on each other date required by Section 4.02 that:
SECTION 5.01 Existence, Qualification and Power; Compliance with Laws. Each Loan Party and each of its Restricted Subsidiaries (a) is a Person duly organized or formed, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite corporate or other applicable entity power and authority to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, (c) is duly qualified and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, (d) is in compliance with all Laws, writs, injunctions and orders and (e) has all requisite governmental licenses, authorizations, consents and approvals to operate its business as currently conducted; except in each case referred to in clauses (a) (other than with respect to the Borrower), (b)(i), (c), (d) or (e), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
SECTION 5.02 Authorization; No Contravention. The (a) execution, delivery and performance by each Loan Party of each Loan Document to which such Person is a party, and (b) as of the Closing Date only, the consummation of the Transactions (other than the Transactions described in clause (a)), are within such Loan Party’s corporate or other powers, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (i) contravene the terms of any of such Person’s Organization Documents, (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under (other than as permitted by Section 7.01), or constitute a default under or require any payment (except for Indebtedness to be repaid on or prior to the Closing Date in connection with the Transactions) to be made under (x) (A) any Junior Financing Documentation or (B) any other Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (y) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (iii) violate any Law (including, without limitation, Regulation X issued by the FRB); except with respect to any conflict, breach, contravention, default, payment (but not creation of Liens) or violation referred to in clause (ii) or clause (iii), to the extent that such conflict, breach, contravention, default, payment or violation could not reasonably be expected to have a Material Adverse Effect.
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SECTION 5.03 Governmental Authorization; Other Consents. No material approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (a) the execution, delivery or performance by any Loan Party of this Agreement or any other Loan Document, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection (if and to the extent required to be perfected under the Security Agreement) or maintenance of the Liens created under the Collateral Documents (including the priority thereof) or (d) the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for (i) filings necessary to perfect the Liens (if and to the extent required to be perfected under the Security Agreement) on the Collateral granted by the Loan Parties in favor of the Secured Parties or to release existing Liens in connection with the Transaction, (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been (and with respect to IP Rights, will be) duly obtained, taken, given or made and are in full force and effect, (iii) filings by the Ultimate Parent or its Subsidiaries pursuant to disclosure obligations under any applicable securities laws, and (iv) those approvals, consents, exemptions, authorizations or other actions, notices or filings, the failure of which to obtain or make could not reasonably be expected to have a Material Adverse Effect.
SECTION 5.04 Binding Effect. This Agreement and each other Loan Document has been duly executed and delivered by each Loan Party that is party thereto. This Agreement and each other Loan Document constitutes a legal, valid and binding obligation of each Loan Party that is a party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by bankruptcy insolvency, reorganization, receivership, moratorium, fraudulent transfer or other Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in equity or at law).
SECTION 5.05 Financial Statements; No Material Adverse Effect. (a) The Historical Financial Statements fairly present in all material respects the financial condition of STBV and its subsidiaries on a consolidated basis as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP or the equivalent accounting principles in the relevant local jurisdiction consistently applied throughout the period covered thereby, except as otherwise expressly noted therein.
(b) In the case of the Closing Date, since December 31, 2010 and, in all other cases, since the date of the most recent audited financial statements delivered to the Administrative Agent pursuant to Section 6.01(a), there has been no material adverse change in, or event or condition, either individually or in the aggregate, that has had or could reasonably be expected to have a material adverse effect on the business, operations, assets, financial condition or operating results of STBV and its Restricted Subsidiaries, taken as a whole.
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(c) The forecasts of consolidated balance sheet, income statement and cash flow statement of the Ultimate Parent (or its predecessor) and its Subsidiaries for each fiscal year ending after the Closing Date until the fiscal year ending December 31, 2015, copies of which have been furnished to the Administrative Agent and the Initial Lenders prior to the Closing Date, have been prepared in good faith based upon assumptions believed to be reasonable at the time made in light of the conditions existing at the time of preparation of such forecasts and represented, at the time of preparation, the Ultimate Parent’s (or its predecessor’s) reasonable estimate of its future financial performance, it being understood that (i) such forecasts, as to future events, are not to be viewed as facts, that actual results during the period or periods covered by any such forecasts may differ significantly from the forecasted results and that such differences may be material and that such forecasts are not a guarantee of financial performance and (ii) no representation is made with respect to information of a general economic or general industry nature.
SECTION 5.06 Litigation. Except as disclosed on Schedule 5.06 (the “Disclosed Litigation”), there are no actions, suits, proceedings, claims or disputes pending or, to the actual knowledge of any Responsible Officer of the Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against STBV or any of its Subsidiaries or against any of their properties or revenues that (a) purport to restrain or contest entry into or performance under this Agreement or any other Loan Document or the consummation of the Transactions or (b) either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, and there has been no materially adverse change in the status, or financial effect on any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 5.06 hereto.
SECTION 5.07 Ownership of Property; Liens. (a) Each Loan Party and each of its Subsidiaries, as applicable, has good record and marketable title in fee simple to, or valid leasehold interests in, or easements or other limited property interests in, all real property necessary in the ordinary conduct of its business, free and clear of all Liens except for Permitted Encumbrances and such minor defects in title that do not materially interfere with its ability to conduct its business or to utilize such assets for their intended purposes and Liens permitted by Section 7.01 and except where the failure to have such title or other property interests described above could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(b) Schedule 7.01(b) sets forth a list of all Liens on the property and assets (other than Liens with respect to any IP Rights and licenses with respect thereto) of each Loan Party and each of its Subsidiaries that is complete and accurate in all material respects, showing as of the date hereof the lienholder thereof, the principal amount of the obligations secured thereby and the property or assets of such Loan Party or such Subsidiary subject thereto. The property of each Loan Party and each of its Subsidiaries is subject to no Liens, other than Liens set forth on Schedule 7.01(b), and as otherwise permitted by Section 7.01.
(c) Schedule 5.07(c) sets forth a complete and accurate list of all Material Real Property owned by any Loan Party or any of its Restricted Subsidiaries, as of the Closing Date, showing as of such date the street address (to the extent available), county or other relevant jurisdiction, state and record owner. Each Loan Party has good and marketable title to the real property owned by such Loan Party, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
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(d)Schedule 7.02(f) sets forth a list of all Investments held by any Loan Party or any Restricted Subsidiary of a Loan Party that is complete and accurate in all material respects, as of the Closing Date, on the date hereof, showing as of the date hereof the amount, obligor or issuer and maturity, if any, thereof.
SECTION 5.08 Environmental Compliance. (a) There are no actions, suits, proceedings, demands or claims alleging potential liability or responsibility for violation of, or liability under, any Environmental Law received by, and relating to businesses, operations or properties of, any Loan Party or its Subsidiaries that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Except as could not reasonably be expected to have a Material Adverse Effect, (i) none of the properties currently or, to the actual knowledge of any Responsible Officer of the Borrower, formerly owned, leased or operated by any Loan Party or any of its Subsidiaries, or, to the actual knowledge of any Responsible Officer of the Borrower, to which any Loan Party or any of its Subsidiaries sent any Hazardous Materials for disposal, is listed on the NPL or on the CERCLIS or any analogous foreign, state or local list; (ii) there are no and, to the actual knowledge of any Responsible Officer of the Borrower, never have been any underground or aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been discharged, treated, stored or disposed on, at or under any property currently owned or operated by any Loan Party or any of its Subsidiaries or, to its actual knowledge, on, at or under any property formerly owned, leased or operated by any Loan Party or any of its Subsidiaries during or prior to the period of such ownership or operation; (iii) there is no asbestos or asbestos-containing material on or at any property currently owned or operated by any Loan Party or any of its Subsidiaries; and (iv) Hazardous Materials have not been released, discharged or disposed of on, at or under any property currently or to the actual knowledge of any Responsible Officer of the Borrower formerly owned or operated by any Loan Party or any of its Subsidiaries, except for such releases, discharges or disposal that were in compliance with Environmental Laws.
(c) The Material Real Properties do not contain any Hazardous Materials in amounts or concentrations which (i) constitute or constituted a violation of, (ii) require response or remedial action under, or (iii) could result in the Borrower incurring liability under Environmental Laws, which violations, actions and liabilities, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.
(d) None of the Loan Parties or any of their respective Subsidiaries is undertaking, and has not completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any Governmental Authority or the requirements of any Environmental Law except for any such investigation or assessment or remedial or response action that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
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(e)No Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries have been disposed of by or on behalf of any Loan Party or any of its Subsidiaries in a manner that could not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect.
This Section 5.08 sets forth the sole and exclusive representations and warranties of the Loan Parties with respect to environmental, health or safety matters.
SECTION 5.09 Taxes. The Loan Parties have filed all Federal and state income and other material tax returns and reports required to be filed (after giving effect to permitted extension periods), and have paid all Federal and state income and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those (a) which are not overdue by more than sixty (60) days or (b) which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP or the equivalent accounting principles in the relevant local jurisdiction or (c) with respect to which the failure to make such filing or payment could not reasonably be expected to have a Material Adverse Effect.
SECTION 5.10 ERISA Compliance. (a) Except as could not reasonably be expected to have a Material Adverse Effect, (i) each Pension Plan is in compliance in all material respects with the applicable provisions of ERISA and the Code; and (ii) each Pension Plan that is intended to qualify under Section 401(a) of the Code has either received a favorable determination letter from the IRS or an application for such a letter has been or will be submitted to the IRS within the applicable required time period with respect thereto and, to the knowledge of the Borrower, nothing has occurred which could reasonably be expected to prevent, or cause the loss of, such qualification.
(b) Except as set forth on Schedule 5.10(b), there are no pending or, to the knowledge of the Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Pension Plan that could reasonably be expected to have a Material Adverse Effect. To the knowledge of the Borrower, there has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Pension Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.
(c) Except as set forth on Schedule 5.10(c), (i) no ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has an “accumulated funding deficiency” (as defined in Section 412 of the Code), whether or not waived, and no application for a waiver of the minimum funding standard has been filed with respect to any Pension Plan; (iii) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums not yet due or premiums due and not yet delinquent under Section 4007 of ERISA); (iv) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA, except, with respect to each of the foregoing clauses of this Section 5.10(c), as could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
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SECTION 5.11 Subsidiaries; Equity Interests. As of the Closing Date, no Loan Party has any Subsidiaries other than those specifically disclosed in Schedule 5.11, and all of the outstanding Equity Interests in each Restricted Subsidiary are fully paid and with respect to corporate shares, nonassessable and are owned directly by the Person set forth on Schedule 5.11 and are free and clear of all Liens except (i) those created under the Collateral Documents and (ii) any nonconsensual Lien that is permitted under Section 7.01. As of the Closing Date, Schedule 5.11 (a) sets forth the name and jurisdiction of each Subsidiary, (b) sets forth the direct ownership interest of STBV and any other Subsidiary in each Subsidiary, including the percentage of such ownership and (c) identifies each Material Foreign Subsidiary.
SECTION 5.12 Margin Regulations; Investment Company Act. (a) No proceeds of any Borrowings or drawings under any Letter of Credit will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock in violation of Regulation U issued by the FRB.
(b) None of the Loan Parties or any of their Subsidiaries is required to be registered as an “investment company” under the Investment Company Act of 1940.
SECTION 5.13 Disclosure. To the actual knowledge of the Responsible Officers of the Borrower, no report, financial statement, certificate or other written information furnished by or on behalf of any Loan Party to any Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or any other Loan Document (as modified or supplemented by other information so furnished) when taken as a whole contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading; provided that, (i) with respect to financial estimates, projected financial information and other forward-looking information, the Borrower represents and warrants only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of preparation; it being understood that such projections, as to future events, are not to be viewed as facts, that actual results during the period or periods covered by any such projections may differ significantly from the projected results and that such differences may be material and that such projections are not a guarantee of financial performance and (ii) no representation is made with respect to information of a general economic or general industry nature.
SECTION 5.14 Intellectual Property, Licenses, Etc. Schedule 5.14 sets forth a complete and accurate list of all registered, patented or applied for Material Intellectual Property on the Closing Date, owned by each Loan Party and its Subsidiaries, showing as of the Closing Date the jurisdiction in which each such Material Intellectual Property is registered, the registration number and the date of registration. Each Loan Party and its Restricted Subsidiaries own, or possess the right to use, all of the material trademarks, service marks, trade names, copyrights, patents, patent rights, licenses, database rights and design rights and other intellectual property rights (collectively, “IP Rights”) that are reasonably necessary for the operation of their respective businesses as currently operated by each Loan Party and its Restricted Subsidiaries without conflict with the rights of any other Person, except to the extent such failure to own or possess the right to use or such conflicts, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. To the knowledge of Borrower, no trademarks, servicemarks, copyrights, logos, designs, slogans or other advertising devices, products, processes, methods, substances, part or other material, as currently used or employed by any Loan Party or any Restricted Subsidiary, infringes upon any rights held by any other Person except for such infringements, individually or in the aggregate, which could not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any
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of the foregoing is pending or, to the actual knowledge of the Borrower, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
SECTION 5.15 Solvency. On the Closing Date after giving effect to the Transaction, the Loan Parties and their Subsidiaries, on a consolidated basis, are Solvent.
SECTION 5.16 Perfection, Mortgages, Etc. All filings and other actions reasonably necessary to perfect (if and to the extent required to be perfected under the Security Agreements) and protect the Liens on the Collateral created under, and in the manner contemplated by, the Collateral Documents have been duly made (or with respect to applicable IP Rights, will be made) or taken or otherwise provided for in a manner reasonably acceptable to Administrative Agent and are in full force and effect and the Collateral Documents create in favor of the Administrative Agent for the benefit of the Secured Parties a valid and, together with such filings and other actions, perfected (if and to the extent required to be perfected under the Security Agreement) first priority Lien in the Collateral, securing the payment of the Secured Obligations, subject to Liens permitted by Section 7.01. The Loan Parties are the legal and beneficial owners of the Collateral free and clear of any Lien, except for the Liens created or permitted under the Loan Documents. Each Mortgage creates, as security for the obligations purported to be secured thereby, a valid and enforceable first mortgage Lien on the respective Property in favor of the Administrative Agent (or such other trustee as may be required under local law) for the benefit of the Secured Parties, superior and prior to the rights of all third Persons, except for the Liens created or permitted under the Loan Documents. Notwithstanding anything to the contrary herein, nothing in this Agreement or any other Loan Document shall require any Loan Party or any of their Subsidiaries to make any filings or take any actions to record or perfect the Administrative Agent’s Lien on and security interest in any intellectual property Collateral other than Collateral that is Material Intellectual Property.
SECTION 5.17 Compliance with Laws Generally. None of the Loan Parties or any of their respective material properties, or the use of such material properties, is in violation of any applicable Law, or is in default with respect to any judgment, writ, injunction, decree or order of any Governmental Authority, except for such violations or defaults that (a) are being contested in good faith by appropriate proceedings or (b) individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.18 Labor Matters. Except as in the aggregate has not had and could not reasonably be expected to have a Material Adverse Effect, there are no strikes, lockouts or slowdowns against any Loan Party pending or, to the knowledge of any Responsible Officer of the Borrower, threatened.
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SECTION 5.19 EEA Financial Institution. Neither the Borrower nor any other Loan Party is an EEA Financial Institution.
SECTION 5.20 Beneficial Ownership. As of the Tenth Amendment Effective Date, the information included in the Beneficial Ownership Certification (to the extent required to be provided) is true and correct in all material respects.
SECTION 5.21 Sanctions; Anti-Corruption; Anti-Money Laundering. Each of the Parent and its Subsidiaries is in compliance in all material respects with (1) Anti-Money Laundering Laws and (2) to the extent applicable to the Parent and its Subsidiaries, the Patriot Act and any enabling legislation or executive order relating thereto. Each of the Parent and its Subsidiaries is in compliance in all material respects with all applicable Sanctions. None of the Parent and its Subsidiaries is (1) currently the target of any Sanctions or (2) located, organized or resident in a country or territory that is the target of Sanctions broadly prohibiting dealings with such country or territory. No part of the proceeds of any Credit Extension will be used, directly or (to the knowledge of the Parent or any of its Subsidiaries) indirectly, for any purpose which would violate applicable Sanctions. No part of the proceeds of any Credit Extension will be used, directly or (to the knowledge of the Parent or any of its Subsidiaries) indirectly, for any purpose which would breach (i) the US Foreign Corrupt Practices Act of 1977 (as amended) and applicable similar laws of all jurisdictions in which the Parent and its subsidiaries conduct their business and to which they are lawfully subject or (ii) any applicable law, statutes, regulations or obligatory government orders, decrees, ordinances or rules applicable to terrorism financing or money laundering, including any applicable provision of The Currency and Foreign Transactions Reporting Act and similar laws of all jurisdictions in which the Parent and its subsidiaries conduct their business and to which they are lawfully subject.
Article 6
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation (other than contingent indemnification obligations not then due and payable) hereunder which is accrued and payable shall remain unpaid or unsatisfied, or any Letter of Credit that has not been collateralized on terms reasonably satisfactory to the applicable L/C Issuer shall remain outstanding, the Borrower and STBV shall, and shall (except in the case of the covenants set forth in Section 6.01, Section 6.02, Section 6.03, Section 6.15, Section 6.16, Section 6.17 and Section 6.18) cause each of their other Restricted Subsidiaries to:
SECTION 6.01 Financial Statements. Deliver to the Administrative Agent for further distribution to each Lender:
(a)as soon as available, but in any event within ninety (90) days after the end of each fiscal year thereafter, a consolidated balance sheet of the Ultimate Parent and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of Ernst & Young LLP or any other independent certified public accountant of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit;
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(b)as soon as available, but in any event within forty-five (45) days after the end of each fiscal quarter thereafter, excluding, in each case, the fourth fiscal quarter, a consolidated balance sheet of the Ultimate Parent and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or operations and cash flows for such fiscal quarter and for the portion of the fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the Ultimate Parent as fairly presenting in all material respects the financial condition, results of operations and cash flows of the Ultimate Parent and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes; and
(c)as soon as available, but in any event no later than ninety (90) days after the end of each fiscal year thereafter, forecasts prepared by management of the Ultimate Parent, in form reasonably satisfactory to the Administrative Agent, of consolidated balance sheets, income statements, shareholders’ equity statements and cash flow statements of the Ultimate Parent and its Subsidiaries for the fiscal year following such fiscal year then ended.
(d)Simultaneously with the delivery of each set of consolidated financial statements referred to in Section 6.01(a) and Section 6.01(b) above, (i) the related consolidating balance sheet and the related consolidating statements of income or operations reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements and (ii) a reconciliation report describing any material differences between such financial statements and the corresponding financial information applicable to STBV and its Subsidiaries on a consolidated basis (a “Reconciliation Report”), and such Reconciliation Report shall be certified by a Responsible Officer of the Ultimate Parent as fairly presenting in all material respect such information (for the avoidance of doubt, it is acknowledged that no Reconciliation Report shall be required to be audited).
SECTION 6.02 Certificates; Other Information. Deliver to the Administrative Agent for further distribution to each Lender:
(a)no later than five (5) days after the delivery of the financial statements referred to in Section 6.01(a), a certificate of its independent certified public accountants auditing such financial statements that addresses either (i) whether in making the examination necessary therefor or (ii) through performance of other acceptable procedures under professional auditing standards, such firm obtained knowledge of any Event of Default under Section 7.11 or, if any such Event of Default shall exist, stating the nature and status of such event;
(b)no later than five (5) days after the delivery of the financial statements referred to in Section 6.01(a) and Section 6.01(b), a duly completed Compliance Certificate signed by a Responsible Officer of STBV (which shall set forth reasonably detailed calculations (i) demonstrating compliance with Section 7.11, if applicable, and (ii) in the case of any delivery of financial statements under Section 6.01(a) in respect of any fiscal year ending on or after December 31, 2012, of Excess Cash Flow for such fiscal year);
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(c)promptly after the same are publicly available, copies of all annual, regular, periodic and special reports and registration statements which STBV or any of its Restricted Subsidiaries filed with the SEC under Section 13 or 15(d) of the Exchange Act, or with any Governmental Authority that may be substituted therefor, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d)promptly after the furnishing thereof, copies of any material requests or material notices received by any Loan Party (other than in the ordinary course of business) from, or material statement or material report furnished to, any holder of debt securities of any Loan Party or of any of its Restricted Subsidiaries pursuant to the terms of any Junior Financing Documentation in a principal amount greater than the Threshold Amount and not otherwise required to be furnished to the Lenders pursuant to any other clause of this Section 6.02;
(e)promptly after the receipt thereof by any Loan Party or any of its Subsidiaries, copies of each notice or other written correspondence received from the SEC (or comparable agency in any applicable non-US jurisdiction) concerning any material investigation or other material inquiry by such agency regarding financial or other operational results of any Loan Party or any of its Subsidiaries;
(f)together with the delivery of each Compliance Certificate pursuant to Section 6.02(b), (i) a report supplementing Schedule 5.07(c) hereto, including, in the case of supplements to Schedule 5.07(c), an identification of all owned Material Real Property Disposed of by any Loan Party since the delivery of the last supplements and a list and description of all Material Real Property acquired by any Loan Party or its Restricted Subsidiaries since the delivery of the last supplements (including the street address (if available), county or other relevant jurisdiction, state or other relevant jurisdiction, and the record owner), (ii) a description of each event, condition or circumstance during the last fiscal quarter covered by such Compliance Certificate requiring a mandatory prepayment under Section 2.05(b);
(g)promptly after the Borrower has notified the Administrative Agent of any intention by the Borrower to treat the Loans and/or Letters of Credit and related transactions as being a “reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4), a duly completed copy of IRS Form 8886 or any successor form;
(h)promptly, provide information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Beneficial Ownership Regulation; and
(i)promptly, such additional information regarding the business, legal, financial or corporate affairs of any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request.
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Documents required to be delivered pursuant to Section 6.01(a), Section 6.01(b), Section 6.02(c) or Section 6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which STBV or the Borrower posts such documents, or provides a link thereto on STBV’s or the Borrower’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on STBV’s or the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (A) upon the request of the Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender and (B) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Except for Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by STBV or the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery of or maintaining its copies of such documents. STBV and the Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of STBV or the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to STBV or the Borrower or its securities) (each, a “Public Lender”). Each of STBV and he Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” STBV and the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuer and the Lenders to treat the Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to STBV or the Borrower or its securities for purposes of United States Federal and state securities laws; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform designated “Private Investor.”
SECTION 6.03 Notices. Promptly notify the Administrative Agent for further distribution to each Lender:
(a)of the occurrence of any Default; and
(b)of any matter that has resulted or could in the reasonable judgment of any Loan Party reasonably be expected to result in a Material Adverse Effect, including any such matter arising out of or resulting from (i) breach or non-performance of, or any default under, a Contractual Obligation of any Loan Party or any Restricted Subsidiary, (ii) any dispute, litigation, investigation, proceeding or suspension between any Loan Party or any Subsidiary and any Governmental Authority, (iii) the commencement of, or any material adverse development in, any litigation or proceeding affecting any Loan Party or any Subsidiary, including pursuant to any applicable Environmental Laws or the assertion or occurrence of any alleged noncompliance by any Loan Party or as any of its Subsidiaries with any Environmental Law or Environmental Permit, or (iv) the occurrence of any ERISA Event.
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Each notice pursuant to this Section 6.03 shall be accompanied by a written statement of a Responsible Officer of the Borrower (x) that such notice is being delivered pursuant to Section 6.03(a) or Section 6.03(b) (as applicable) and (y) setting forth details of the occurrence referred to therein and stating what action the Borrower or the applicable Loan Party has taken and proposes to take with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document in respect of which such Default exists.
SECTION 6.04 Payment of Obligations. Pay, discharge or otherwise satisfy as the same shall become due and payable, all its obligations and liabilities except, in each case, to the extent the failure to pay or discharge the same could not reasonably be expected to have a Material Adverse Effect.
SECTION 6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 7.04 or Section 7.05, and except , in the case of any Restricted Subsidiary (other than the Borrower), to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect, and (b) take all reasonable action to maintain all rights, privileges (including its good standing), permits, licenses, Material Intellectual Property owned by each of the Loan Parties and their Restricted Subsidiaries and franchises necessary in the normal conduct of its business, except (i) to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect, (ii) pursuant to a transaction permitted by Section 7.04 or Section 7.05, or (iii) with respect to Material Intellectual Property, in accordance with prudent industry practice, in the reasonable judgment of management or that is uneconomical, negligible, obsolete or otherwise not material in the conduct of its business.
SECTION 6.06 Maintenance of Properties. Except if the failure to do so could not reasonably be expected to have a Material Adverse Effect, (a) maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order, repair and condition, ordinary wear and tear, casualty and condemnation excepted, and (b) make all necessary renewals, replacements, modifications, improvements, upgrades, extensions and additions thereof or thereto in accordance with prudent industry practice or in the reasonable judgment of management.
SECTION 6.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance companies, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts (after giving effect to any self-insurance reasonable and customary for similarly situated Persons engaged in the same or similar businesses as STBV and its Restricted Subsidiaries in the same geographic locales) as are customarily carried under similar circumstances by such other Persons.
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SECTION 6.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except if the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
SECTION 6.09 Books and Records. Maintain proper books of record and account (in which full, true and correct, in all material respects, entries shall be made of all material financial transactions and matters involving the assets and business of STBV and its Subsidiaries) in a manner that permits the preparation of financial statements in accordance with GAAP or the equivalent accounting principles in the relevant local jurisdiction.
SECTION 6.10 Inspection Rights. Permit representatives and independent contractors of the Administrative Agent to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants (so long as an executed standard access letter of such independent public accountants is received from the Administrative Agent) and to examine and make extracts from its books and records, all at such reasonable times and as often as reasonably requested, all at the expense of the Borrower as provided below and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower and the applicable Loan Party; provided that, excluding any such visits and inspections during the continuation of an Event of Default, only the Administrative Agent on behalf of the Lenders may exercise rights under this Section 6.10 and the Administrative Agent shall not exercise such rights more often than one (1) time during any calendar year absent the existence and continuance of an Event of Default and only at such time shall it be at the Borrower’s expense; provided further that when an Event of Default has occurred and is continuing the Administrative Agent or any such Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and upon reasonable advance notice. The Administrative Agent and the Lenders shall give the Borrower the opportunity to participate in any discussions with the Borrower’s accountants.
SECTION 6.11 Use of Proceeds. Use the proceeds of the Credit Extensions (i) in the case of the Tenth Amendment Term Loans, to prepay Sixth Amendment Term Loans and (ii) to provide ongoing working capital and for other general corporate purposes of STBV and its Subsidiaries (including Permitted Acquisitions).
SECTION 6.12 Covenant to Guarantee Obligations and Give Security. (a) Upon (A) the formation or acquisition of any new direct or indirect Restricted Subsidiary by any Loan Party, or the designation in accordance with Section 6.15 of any existing direct or indirect Unrestricted Subsidiary as a Restricted Subsidiary, or the consummation of any Investment (or series of related Investments) in an aggregate amount in excess of the Threshold Amount made in reliance on Section 7.02(c)(iii), the Borrower shall determine whether a Guarantor Coverage Event exists, on a pro forma basis for such transaction for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01(a), and if such Guarantor Coverage Event exists, (B) any Subsidiary commencing to constitute a Material Foreign Subsidiary, (C) any Restricted Subsidiary Guaranteeing any Specified Junior Financing Obligations or any Senior Notes Financing Obligations or (D) without duplication of the foregoing clause (A), the occurrence of any other Guarantor Coverage Event, STBV and the Borrower shall take the following steps, in each case at their expense; provided that, notwithstanding the foregoing, this Section 6.12 shall not apply to any Excluded Subsidiary:
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(i)within ninety (90) days after such formation, acquisition, designation, commencement, Guarantee or, in the case of clause (D), within 90 days after the delivery of the financial statements pursuant to Section 6.01 indicating that a Guarantor Coverage Event has occurred (or, in each case, such longer period as the Administrative Agent may agree in its reasonable discretion):
(A)cause (1) each such Restricted Subsidiary that is (x) a material Domestic Subsidiary, (y) a Material Foreign Subsidiary or (z) a Foreign Subsidiary that has Guaranteed any Specified Junior Financing Obligations or Senior Notes Financing Obligations or (2) following the occurrence of a Guarantor Coverage Event, Restricted Subsidiaries that own assets and/or contribute Consolidated EBITDA in an amount sufficient to cause such Guarantor Coverage Event to no longer be ongoing, to duly execute and deliver to the Administrative Agent a Guaranty or guaranty supplement, in form and substance reasonably satisfactory to the Administrative Agent, Guaranteeing the Obligations (excluding, in the case of any Foreign Subsidiary, so long as a Specified RCF Obligations Reinstatement Event has not occurred, the Specified RCF Obligations) of the Borrower, subject, in the case of clauses (1)(y), (1)(z) and (2) (in the case of any Foreign Subsidiary), to any limitations required by local Law;
(B)cause each such Restricted Subsidiary that is required to become a Guarantor pursuant to Section 6.12(a)(i)(A) to furnish to the Administrative Agent a description of any Material Real Property owned by such Restricted Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(C)cause each such Restricted Subsidiary that is required to become a Guarantor pursuant to Section 6.12(a)(i)(A), to duly execute and deliver to the Administrative Agent Mortgages with respect to Material Real Property, Security Agreement Supplements, Intellectual Property Security Agreements and other Collateral Documents, as specified by, and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreements, Intellectual Property Security Agreement and other Collateral Documents in effect on the Closing Date), granting a Lien in substantially all personal property of such Restricted Subsidiary that constitutes Collateral and all Material Real Property, in each case securing the Obligations of such Restricted Subsidiary under its Guaranty (subject to the exclusion, in the case of any Foreign Subsidiary, of the Specified RCF Obligations as provided in clause (A) above);
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(D)cause each such Restricted Subsidiary that is required to become a Guarantor pursuant to Section 6.12(a)(i)(A) to deliver any and all certificates representing Equity Interests owned by such Restricted Subsidiary or, if applicable in the case of Equity Interests of Foreign Subsidiaries, cause the legal representative(s) of such Restricted Subsidiary to register the transfer of the Equity Interests in the relevant share registers of such Restricted Subsidiary, in each applicable case accompanied by undated stock powers or other appropriate instruments of transfer executed in blank and instruments, if any, evidencing the intercompany debt held by such Restricted Subsidiary, if any, indorsed in blank to the Administrative Agent or accompanied by other appropriate instruments of transfer;
(E)take and cause such Restricted Subsidiary to take whatever action (including the recording of Mortgages with respect to Material Real Property, the filing of Uniform Commercial Code financing statements (or comparable documents or instruments under other applicable Law), and delivery of certificates evidencing stock and membership interests) as may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid and subsisting Liens on the properties purported to be subject to the Mortgages and the other Collateral Documents delivered pursuant to this Section 6.12, enforceable against all third parties in accordance with their terms,
(ii)within thirty (30) days after the reasonable request therefor by the Administrative Agent, deliver to the Administrative Agent a signed copy of a customary legal opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 6.12(a) as the Administrative Agent may reasonably request, and
(iii)as promptly as practicable after the request therefor by the Administrative Agent, deliver to the Administrative Agent with respect to Material Real Property owned by such Restricted Subsidiary that is the subject of such request, title reports in scope, form and substance reasonably satisfactory to the Administrative Agent and, to the extent available, surveys and environmental assessment reports.
It is understood and agreed that, (i) no Foreign Subsidiary of the Borrower or any Domestic Subsidiary shall be obligated to guarantee the Obligations of the Borrower to the extent such guarantee could (in the reasonable determination of the Borrower) result in a material adverse tax consequence to the Borrower or any other Domestic Subsidiary (unless such Foreign Subsidiary is a guarantor of any Specified Junior Financing Obligations or the Senior Notes Financing Obligations of the Borrower or any other Domestic Subsidiary), (ii) no more than 65% of the voting Equity Interests of (A) any Foreign Subsidiary of the Borrower or any Domestic Subsidiary or (B) any Domestic Subsidiary substantially all of the assets of which consist of the Equity Interests of one or more Foreign Subsidiaries shall be required to be pledged to directly or indirectly support the Obligations of the Borrower to the extent such pledge could (in the reasonable determination of the Borrower) result in a material adverse tax consequence to the Borrower or any other Domestic Subsidiary (except to the extent pledged to support obligations under any Specified Junior Financing Obligations or the Senior Notes Financing Obligations of the Borrower or any other Domestic Subsidiary), (iii) no Equity Interests of any Subsidiary that is held directly or indirectly by a Foreign Subsidiary of the Borrower or any Domestic Subsidiary shall be required to be pledged to support the Obligations of the Borrower to the extent that such pledge could (in the reasonable determination of the Borrower) result in a material adverse tax
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consequence to the Borrower or any other Domestic Subsidiary (except to the extent pledged to support obligations under any Specified Junior Financing Obligations or the Senior Notes Financing Obligations of the Borrower or any other Domestic Subsidiary), and (iv) no Foreign Subsidiary, so long as a Specified RCF Obligations Reinstatement Event has not occurred, shall be obligated to Guarantee or provide any Liens or other collateral security for the Specified RCF Obligations.
(b) Upon the acquisition of (x) any personal property by any Loan Party that constitutes Collateral or (y) Material Real Property by any Loan Party, if such personal property shall not already be subject to a perfected Lien in favor of the Administrative Agent for the benefit of the Secured Parties, the Borrower or Loan Party, as the case may be, shall give notice thereof to the Administrative Agent and shall, if requested by the Administrative Agent or the Required Lenders, cause such assets to be subjected to a Lien securing such Loan Party’s Obligations and will take, or cause the relevant Loan Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect (if and to the extent required to be perfected under the Security Agreement) or record such Lien, including, as the case may be, the applicable actions referred to in Section 6.12(a) and Section 6.14(b).
(c)Notwithstanding the foregoing, (x) with respect to this Section 6.12 and Section 6.19, the Administrative Agent shall not take a security interest in or require any title insurance or similar items with respect to those assets as to which the Administrative Agent shall determine, in its reasonable discretion, that the cost of obtaining such Lien (including any mortgage, stamp, intangibles or other tax, title insurance or similar items) is excessive in relation to the benefit to the Lenders of the security afforded thereby and (y) Liens required to be granted pursuant to this Section 6.12 shall be subject to exceptions and limitations consistent with those set forth in the Collateral Documents as in effect on the Closing Date (to the extent appropriate in the applicable jurisdiction).
SECTION 6.13 [Reserved].
SECTION 6.14 Further Assurances. (a) Promptly upon reasonable request by the Administrative Agent, (i) correct any material defect or error that may be discovered in the execution, acknowledgment, filing or recordation of any Loan Document or other document or instrument relating to any Collateral, (ii) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent may reasonably require from time to time in order to carry out more effectively the purposes of the Loan Documents (including, without limitation, the Collateral Documents), and (iii) with respect to any property subject to a Mortgage in Japan, periodically amend the secured amount set forth in such Mortgage to an amount not greater than 135% of the value of the property secured by such Mortgage and pay any and all taxes or additional registration fees with respect to such periodic amendments.
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(b) Promptly following the delivery of the Compliance Certificate pursuant to Section 6.02(b) with respect to the last fiscal quarter of each fiscal year, execute and deliver to the Administrative Agent an appropriate Intellectual Property Security Agreement with respect to all After-Acquired Intellectual Property (as defined in the Security Agreement) that is Collateral and that is Material Intellectual Property owned by it as of the last day of the period for which such Compliance Certificate is delivered, to the extent that such After-Acquired Intellectual Property that is Material Intellectual Property is not covered by any previous Intellectual Property Security Agreement so signed and delivered by it. In each case, STBV and the Borrower will, and will cause each Guarantor to, promptly cooperate as reasonably necessary to enable the Administrative Agent to make any reasonably necessary recordations with the US Copyright Office or the US Patent and Trademark Office, as appropriate, with respect to such Material Intellectual Property.
SECTION 6.15 Designation of Subsidiaries. The board of directors of the Borrower may at any time designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (a) immediately before and after such designation, no Default shall have occurred and be continuing and (b) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for the purpose of any Junior Financing or Senior Notes Financing Obligations. The designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Borrower, STBV or the relevant Restricted Subsidiary (as applicable) therein at the date of designation in an amount equal to the net book value of such Person’s (as applicable) investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Subsidiary existing at such time.
SECTION 6.16 Maintenance of Ratings. Use commercially reasonable efforts to maintain a rating of the Term Loan Facility by each of S&P and Moody’s.
SECTION 6.17 [Reserved].
SECTION 6.18 [Reserved].
SECTION 6.19 Post-Closing Covenant. Within 120 days after the Closing Date (or such later date as the Administrative Agent may agree in its reasonable discretion) and subject to Section 6.12(c), the Administrative Agent shall have received the following, each of which shall be originals or facsimiles or pdf electronic copies (followed promptly by originals) unless otherwise specified:
(a)the Foreign Security Agreements, each properly executed by a Responsible Officer of the signing Loan Party, and each in form and substance reasonably satisfactory to the Administrative Agent, together with, if applicable:
(i)certificates representing the Pledged Equity referred to therein, accompanied by undated stock powers executed in blank or, if applicable, other appropriate instruments of transfer and instruments evidencing the Pledged Debt, if any, indorsed in blank, and
(ii)copies of all searches with respect to the Collateral, together with copies of the financing statements (or similar documents) disclosed by such searches to the extent available, and accompanied by evidence reasonably satisfactory to the Administrative Agent that the Liens indicated in any such financing statement (or similar document)
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would be permitted by Section 7.01 or have been or contemporaneously will be released or terminated or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; and
(b)an opinion of each of (A) Creel, Garcia-Cuellar y Muggenburg, S.C., special Mexico counsel to the Loan Parties, (B) Bae, Kim & Lee, special Korea counsel to the Loan Parties, (C) O’Melveny & Myers, Tokyo Office, special Japan counsel to the Loan Parties and (D) Azim, Tunku Farik & Wong, special Malaysia counsel to the Loan Parties, each addressed to each Agent and each Lender and each in form and substance reasonably satisfactory to the Administrative Agent.
SECTION 6.20 Post-Fifth Amendment Effective Date Covenant. Within the time periods as provided in Schedule E to the Fifth Amendment (or such later date as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent each item specified in Schedule E to the Fifth Amendment and customary legal opinions addressed to the Administrative Agent and each Revolving Credit Lender related to such items, as specified in Schedule C-2 to the Fifth Amendment, in each case in form and substance reasonably satisfactory to the Administrative Agent.
SECTION 6.21 Post-Sixth Amendment Effective Date Covenant. Within the time periods as provided in the Guarantor Affirmation (or such later date as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent each item specified therein, in each case in form and substance reasonably satisfactory to the Administrative Agent.
SECTION 6.22 Post- Seventh Amendment Effective Date Covenant. Within the time periods as provided in Schedule D to the Seventh Amendment (or such later date as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent each item specified in Schedule D to the Seventh Amendment and customary legal opinions addressed to the Administrative Agent and each Revolving Credit Lender related to such items, as specified in Schedule B-2 to the Seventh Amendment, in each case in form and substance reasonably satisfactory to the Administrative Agent and comply, to the extent applicable, with the obligations set out in Schedule D to the Seventh Amendment.
SECTION 6.23 Post-Tenth Amendment Effective Date Covenant. Within the time periods as provided in Schedule C to the Tenth Amendment (or such later date as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent each item specified in Schedule C to the Tenth Amendment and customary legal opinions addressed to the Administrative Agent and each Revolving Credit Lender related to such items, as specified in Schedule C to the Tenth Amendment, in each case in form and substance reasonably satisfactory to the Administrative Agent and comply, to the extent applicable, with the obligations set out in Schedule C to the Tenth Amendment.
SECTION 6.24 Change in Nature of Business. Shall ensure that neither the Borrower, nor STBV nor any of their respective Subsidiaries shall engage in any material lines of business that are substantially different from those lines of business conducted by STBV and the Restricted Subsidiaries on the date hereof or any business reasonably related, supportive, complementary or ancillary thereto.
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SECTION 6.25 Transactions with Affiliates. Shall ensure that neither the Borrower, nor STBV nor any of their respective Subsidiaries shall enter into any transaction that is valued at more than the greater of $45,000,000 and 5.0% of Consolidated EBITDA of the Borrower Parties for the most recent Test Period for which financial statements have been (or are required to have been) furnished pursuant to Section 6.01 ended on or prior to the date of such transaction for the most recently ended Test Period as of such time of any kind with any Affiliate of STBV, whether or not in the ordinary course of business, other than (a) transactions among Loan Parties or any entity that becomes a Loan Party as a result of such transaction, (b) on fair and reasonable terms substantially as favorable to STBV or such Restricted Subsidiary as would be obtainable by STBV or such Restricted Subsidiary in a comparable arm’s-length transaction with a Person other than an Affiliate, (c) the payment of fees, costs and expenses in connection with the consummation of the Transactions and the other transactions contemplated hereby, (d) loans and other transactions by STBV and the Subsidiaries to the extent not prohibited by this Agreement, (e) entering into employment and severance arrangements between Parent, STBV and the Restricted Subsidiaries and their respective officers and employees, as determined in good faith by the board of directors or senior management of the relevant Person, (f) payments by STBV and the Restricted Subsidiaries pursuant to the tax sharing agreements among Parent, STBV and the Restricted Subsidiaries on customary terms to the extent attributable to the ownership or operations of STBV and the Subsidiaries, (g) the payment of customary fees and reimbursement of reasonable out-of-pocket costs of, and customary indemnities provided to or on behalf of, directors, officers and employees of Parent, STBV and the Restricted Subsidiaries in the ordinary course of business, as determined in good faith by the board of directors or senior management of the relevant Person, (h) [reserved], (i) Restricted Payments permitted under Section 7.06, (j) payment of reasonable compensation to officers and employees for services actually rendered to any Loan Party or any of its Subsidiaries, (k) stock option and compensation plans of the Loan Parties and their Subsidiaries, (l) advances and loans to officers, directors, members of management and employees of Parent, STBV or any Restricted Subsidiary to the extent specifically permitted under Section 7.02(b), (m) Investments consisting of promissory notes issued by any Loan Party to future, present or former officers, directors and employees, members of management, or consultants of the Original BV Borrower or any of its Subsidiaries or their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Ultimate Parent, to the extent the applicable Restricted Payment is permitted by Section 7.06, (n) any transaction with a Securitization Subsidiary effected as part of a Qualified Securitization Financing and (o) other transactions specifically permitted under this Agreement (including, without limitation, sale/leaseback transactions, Dispositions, Investments and Indebtedness).
Article 7
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation (other than contingent indemnification obligations not then due and payable) hereunder which is accrued and payable shall remain unpaid or unsatisfied, or any Letter of Credit that has not been collateralized in a manner reasonably satisfactory to the applicable L/C Issuer shall remain outstanding, the Loan Parties shall not, nor shall STBV or the Borrower permit any Restricted Subsidiaries to, directly or indirectly:
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SECTION 7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:
(a)Liens pursuant to any Loan Document and Liens securing other Indebtedness incurred pursuant to Section 2.14;
(b)Liens existing on the Closing Date and listed on Schedule 7.01(b) and any modifications, replacements, renewals or extensions thereof; provided that (i) the Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.03(c)(i), and (B) proceeds and products thereof, and (ii) the modification, replacement, renewal, extension or refinancing of the obligations secured or benefited by such Liens (if such obligations constitute Indebtedness) is permitted by Section 7.03;
(c)Liens for taxes, assessments or governmental charges which are not overdue for a period of more than sixty (60) days or, if more than sixty (60) days overdue (i) which are being contested in good faith and by appropriate actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP or the equivalent accounting principles in the relevant local jurisdiction or (ii) with respect to which the failure to make payment could not reasonably be expected to have a Material Adverse Effect;
(d)statutory Liens of landlords, carriers, warehousemen, mechanics, materialmen, repairmen, construction contractors or other like Liens arising in the ordinary course of business which secure amounts not overdue for a period of more than sixty (60) days or, if more than sixty (60) days overdue (i) no action has been taken to enforce such Lien, (ii) such Lien is being contested in good faith and by appropriate actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP or the equivalent accounting principles in the relevant local jurisdiction or (iii) with respect to which the failure to make payment could not reasonably be expected to have a Material Adverse Effect;
(e)(i) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, (ii) pledges and deposits in the ordinary course of business securing insurance premiums or reimbursement obligations under insurance policies, in each case payable to insurance carriers that provide insurance to STBV or any of its Restricted Subsidiaries or (iii) obligations in respect of letters of credit or bank guarantees that have been posted by the Borrower Parties or any of the Restricted Subsidiaries to support the payments of the items set forth in clauses (i) and (ii) of this Section 7.01(e).
(f)(i) deposits to secure the performance of bids, trade contracts, governmental contracts and leases (other than Indebtedness for borrowed money), statutory obligations, surety, stay, customs and appeal bonds, performance bonds, performance and completion guarantees and other obligations of a like nature (including those to secure health, safety and environmental obligations) incurred in the ordinary course of business and (ii) obligations in respect of letters of credit or bank guarantees that have been posted to support payment of the items set forth in clause (i) of this Section 7.01(f);
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(g)easements, rights-of-way, covenants, conditions, restrictions, encroachments, protrusions and other similar encumbrances and minor title defects or matters that would be disclosed in an accurate survey affecting real property which, in the aggregate, do not in any case materially and adversely interfere with the ordinary conduct of the business of the applicable Person;
(h)Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h);
(i)Liens securing Indebtedness permitted under Section 7.03(c); provided that (i) such Liens attach concurrently with or within two hundred and seventy (270) days after the acquisition, repair, replacement, construction or improvement (as applicable) of the property subject to such Liens and (ii) such Liens do not at any time encumber any property except for accessions to such property other than the property financed by such Indebtedness and the proceeds and the products thereof; provided that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender or any of its affiliates;
(j)(i) leases, licenses, subleases or sublicenses granted to other Persons in the ordinary course of business which do not (A) interfere in any material respect with the business of the Borrower or any other Loan Party or (B) secure any Indebtedness for borrowed money or (ii) the rights reserved or vested in any Person by the terms of any lease, license, franchise, grant or permit held by STBV, the Borrower or any of the other Restricted Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise, grant or permit, or to require annual or periodic payments as a condition to the continuance thereof;
(k)Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(l)Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection, (ii) attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business or (iii) in favor of a banking institution arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;
(m)Liens (i) (A) on advances of cash or Cash Equivalents in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 7.02(f), Section 7.02(i) or Section 7.02(m) to be applied against the purchase price for such Investment and (B) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 7.05, in each case under this clause (i), solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such Lien and (ii) on earnest money deposits of cash or Cash Equivalents made by STBV, the Borrower or any of the other Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder;
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(n)Liens on property of any Foreign Subsidiary securing Indebtedness of such Foreign Subsidiary permitted under Section 7.03(e);
(o)Liens in favor of STBV, the Borrower, a Loan Party or a Restricted Subsidiary securing Indebtedness permitted under Section 7.03(f), Section 7.03(k) and Section 7.03(l);
(p)Liens existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes a Restricted Subsidiary, in each case after the date hereof (other than Liens on the Equity Interests of any Person that becomes a Restricted Subsidiary) and any modifications, replacements, renewals or extensions thereof; provided that (i) such Lien was not created in contemplation of such acquisition or such Person becoming a Restricted Subsidiary, (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof and after-acquired property subjected to a Lien pursuant to terms existing at the time of such acquisition, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition), and (iii) the Indebtedness secured thereby (or, as applicable, any modifications, replacements, renewals or extension thereof) is permitted under Section 7.03;
(q)Liens arising from precautionary Uniform Commercial Code financing statement filings (or similar filings under other applicable Law) regarding leases entered into by the Borrower or any of the Restricted Subsidiaries in the ordinary course of business;
(r)Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by STBV, the Borrower or any of the other Restricted Subsidiaries in the ordinary course of business and not prohibited by this Agreement;
(s)Permitted Encumbrances;
(t)other Liens securing Indebtedness or other obligations permitted under this Agreement and outstanding in an aggregate principal amount not to exceed the greater of $250,000,000 and 25% of Consolidated EBITDA of the Borrower Parties for the most recent Test Period for which financial statements have been (or are required to have been) furnished pursuant to Section 6.01 ended on or prior to the date of such incurrence;
(u)Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of STBV or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of STBV and its Restricted Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of STBV or any Restricted Subsidiary in the ordinary course of business;
(v)any interest or title of a licensor, sublicensor, lessor or sublessor under any license or operating or true lease agreement;
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(w)Liens on securities which are the subject of repurchase agreements incurred in the ordinary course of business;
(x)ground leases in respect of real property on which facilities owned or leased by STBV or any of its Subsidiaries are located;
(y)Liens arising by operation of law under Article 2 of the Uniform Commercial Code in favor of a reclaiming seller of goods or buyer of goods;
(z)security given to a public or private utility or any Governmental Authority as required in the ordinary course of business;
(aa)Liens in the nature of the right of setoff in favor of counterparties to contractual agreements with STBV or any Restricted Subsidiary in the ordinary course of business;
(bb) any exclusive or non-exclusive licenses granted under any IP Rights that do not secure or is not granted in connection with incurrence of Indebtedness;
(cc) Liens on Securitization Assets and related assets of the type specified in the definition of “Securitization Financing” incurred in connection with any Qualified Securitization Financing and Liens arising from precautionary UCC filings regarding the sale of Securitization Assets and related assets of the type specified in the definition of “Securitization Financing” by STBV or any Restricted Subsidiary in connection with any Qualified Securitization Financing;
(dd) Liens securing Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt;
(ee) to the extent not waived by a bank pursuant to the relevant Dutch Security Document, any Lien or set-off arrangements entered into by STBV or any Dutch Subsidiary in the ordinary course of its banking arrangements which arise from the general banking conditions (algemene bankvoorwaarden); and
(ff) Liens securing Indebtedness as permitted under Section 7.03(d) and Section 7.03(e).
SECTION 7.02 Investments. Make or hold any Investments, except:
(a)Any Investment by Parent, STBV or any Restricted Subsidiary in assets that were Cash Equivalents when such Investment was made;
(b)loans or advances to officers, directors, members of management, and employees of Parent, STBV or any Restricted Subsidiary (i) in an aggregate amount not to exceed $10,000,000 at any time outstanding, for business-related travel, entertainment, relocation and analogous ordinary business purposes, or (ii) in connection with such Person’s purchase of Equity Interests of Ultimate Parent in an aggregate amount not to exceed $10,000,000 at any time outstanding (determined without regard to any write-downs or write-offs of such loans or advances);
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(c)Investments (i) by any Loan Party in any other Loan Party, (ii) by any Restricted Subsidiary that is not a Loan Party in any Loan Party or in any other Restricted Subsidiary that is also not a Loan Party or (iii) by Loan Parties in any Restricted Subsidiaries that are not Loan Parties in an aggregate amount not to exceed (A) on and after the Tenth Amendment Effective Date, the greater of (1) $500,000,000 and (2) 50% of Consolidated EBITDA of the Borrower Parties for the most recent Test Period for which financial statements have been (or are required to have been) furnished pursuant to Section 6.01 ended on or prior to the date of such Investment, at any time outstanding (in the case of clause (iii), determined without regard to any write-downs or write-offs of such Investments) plus (B) additional amounts to the extent that, in the case of this clause (B), only the Senior Secured Net Leverage Ratio as of the last day of the most recently ended Test Period for which financial statements are internally available or, to the extent the Borrower has made an LCT Election with respect thereto, as of the date of the most recent financial statements delivered pursuant to Section 6.01 prior to the LCT Test Date with respect thereto, after giving Pro Forma Effect to any such Investment, does not exceed 1.50:1.00, it being understood that (x) no Investment in or transfer to a non-Loan Party made prior to the Tenth Amendment Effective Date, or made after the Tenth Amendment Effective in accordance with any other provision of the Credit Agreement, shall be deemed to be a utilization of the foregoing clause (iii) and (y) no extension of the maturity of or other renewal of any existing Investment made pursuant to this clause (c) shall be deemed to be a new Investment, except to the extent the aggregate amount of such Investment is increased in connection therewith;
(d)Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business, and Investments consisting of Guarantees of any supplier’s obligations in respect of commodity contracts, including Swap Contracts, solely to the extent such commodities related to the materials or products to be purchased by the Borrower Parties;
(e)Investments consisting of Liens, Indebtedness, fundamental changes, Dispositions and Restricted Payments permitted by Section 7.01, Section 7.03, Section 7.04, Section 7.05, and Section 7.06, respectively;
(f)Investments existing or contemplated on the date hereof and set forth on Schedule 7.02(f) and any modification, replacement, renewal or extension thereof; provided that the amount of the original Investment is not increased except by the terms of such Investment or as otherwise permitted by this Section 7.02;
(g)Investments in Swap Contracts permitted by Section 7.03;
(h)promissory notes and other noncash consideration received in connection with Dispositions permitted by Section 7.05;
(i)the purchase or other acquisition of all or substantially all of the assets or business of, any Person, or of assets constituting a business unit, a line of business or division of, such Person, or of all of the Equity Interests (other than directors’ qualifying shares) in a Person that, upon the consummation thereof, will be owned directly by a Loan Party or one or more of its wholly owned Subsidiaries (including, without limitation, as a result of a merger or consolidation); provided that, with respect to each such purchase or other acquisition made pursuant to this Section 7.02(i) (each of the foregoing, a “Permitted Acquisition”):
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(A)each applicable Loan Party and any such newly created or acquired Subsidiary shall, or will within the times specified therein, have complied with the applicable requirements of Section 6.12;
(B)(1) immediately before and immediately after giving Pro Forma Effect to any such purchase or other acquisition, no Event of Default shall have occurred and be continuing on the date of the consummation thereof or, to the extent the Borrower has made an LCT Election with respect thereto, no Event of Default shall have occurred and be continuing on the on the LCT Test Date and no Specified Event of Default shall have occurred and be continuing on the date of the consummation thereof, and (2) immediately after giving effect to such purchase or other acquisition, the Total Leverage Ratio as of the date of the most recent financial statements which have been delivered pursuant to Section 6.01, or, to the extent the Borrower has made an LCT Election with respect thereto, as of the date of the most recent financial statements delivered pursuant to Section 6.01 prior to the LCT Test Date with respect thereto, on a Pro Forma Basis shall not exceed 6.25:1.0 and such compliance shall be evidenced by a certificate from the Chief Financial Officer or Treasurer (or other equivalent officer) of STBV demonstrating such compliance calculation in reasonable detail; and
(C)the Borrower shall have delivered to the Administrative Agent, on behalf of the Lenders, no later than five (5) Business Days after the date on which any such purchase or other acquisition is consummated, a certificate of a Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent, certifying that all of the requirements set forth in this Section 7.02(i) have been satisfied or will be satisfied (x) with respect to clause (A), within the times specified on Section 6.12 (as the same may be extended in accordance therewith) and (y) with respect to clause (B), on or prior to the consummation of such purchase or other acquisition.
(j)Investments in the ordinary course of business consisting of (i) indorsements for collection or deposit or (ii) customary trade arrangements with customers;
(k)Investments (including debt obligations and Equity Interests) received in connection with the bankruptcy or reorganization of any Person and in settlement of obligations of, or disputes with, any Person arising in the ordinary course of business and upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(l)loans and advances to Parent in lieu of, and not in excess of the amount of (after giving effect to any other loans, advances or Restricted Payments in respect thereof), Restricted Payments permitted to be made to Parent in accordance with Section 7.06;
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(m)so long as immediately after giving effect to any such Investment, no Event of Default has occurred and is continuing or, if the Borrower has made an LCT Election with respect thereto, on the LCT Test Date with respect thereto on a Pro Forma Basis no Event of Default has occurred and is continuing and on the date of the consummation thereof no Specified Event of Default has occurred and is continuing, other Investments that do not exceed (i) $50,000,000 in any fiscal year plus (ii) additional amounts to the extent that, in the case of this clause (ii) only, giving Pro Forma Effect to such Investment, the Senior Secured Net Leverage Ratio as of the last day of the immediately preceding Test Period prior to the consummation thereof or, if the Borrower has made an LCT Election with respect thereto, as of the last day of the immediately preceding Test Period prior to the LCT Test Date with respect thereto, does not exceed 2.5:1.0 (such applicable amount, the “Permitted Other Investment Amount”); provided that the Permitted Other Investment Amount may be increased by (x) the amount of any Eligible Equity Proceeds which are Not Otherwise Applied and (y) if the Senior Secured Net Leverage Ratio-based test referred to in clause (ii) in this clause (m) shall have been satisfied, an amount equal to 100% of the Available Amount; provided further that (1) to the extent the aggregate amount of Investments made pursuant to this clause (m) in any fiscal year is less than the Permitted Other Investment Amount, the amount of such difference may be carried forward and used to make Investments pursuant to this clause (m) in the two immediately succeeding fiscal years and (2) for any fiscal year, the amount of Investments that would otherwise be permitted in such fiscal year pursuant to this clause (m) may be increased by an amount not to exceed the Permitted Other Investment Amount (any amount so utilized, the “Investment Pull-Forward Amount”) (provided that the Investment Pull-Forward Amount in respect of any fiscal year shall reduce, on a dollar-for-dollar basis, the Permitted Other Investment Amount in respect of the immediately succeeding fiscal year);
(n)advances of payroll payments to employees in the ordinary course of business;
(o)Guarantees by STBV or any Restricted Subsidiary of leases (other than Capitalized Leases), contracts, or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(p)Investments in Unrestricted Subsidiaries; provided that (i) immediately after giving effect to any such Investment, the fair market value of the assets of the applicable Unrestricted Subsidiary, when aggregated with the fair market value of the assets of all other Unrestricted Subsidiaries, shall not exceed $25,000,000 and (ii) no Default has occurred and is continuing or will occur and be continuing immediately after giving effect to any such Investment;
(q)any Investment in a Securitization Subsidiary or any Investment by a Securitization Subsidiary in any other Person in connection with a Qualified Securitization Financing, including, without limitation, Investments of funds held in accounts permitted or required by the arrangements governing such Qualified Securitization Financing or any related Indebtedness;
(r)Investments consisting of promissory notes issued by any Loan Party to future, present or former officers, directors and employees, members of management, or consultants of STBV or any of its Subsidiaries or their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Ultimate Parent, to the extent the applicable Restricted Payment is permitted by Section 7.06;
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(s)earnest money or purchase price deposits required in connection with Permitted Acquisitions;
(t)Investments consisting of loans and advances to the Parent and its Subsidiaries in connection with the reimbursement of expenses incurred on behalf of the Loan Parties in the ordinary course of business;
(u)capitalization or forgiveness of any Indebtedness owed to any Loan Parties by any other Loan Parties;
(v)Investments to the extent the consideration paid therefor consists solely of Equity Interests of the Parent; and
(w)Investments consisting of any guarantee granted pursuant to a declaration of joint and several liability used for the purpose of Section 2:403 of the Dutch Civil Code (and any residual liability under such declaration arising pursuant to section 2:404(2) of the Dutch Civil Code).
SECTION 7.03 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a)Indebtedness evidenced by the Senior Notes, and any Permitted Refinancing thereof (which may be incurred by STBV or any Restricted Subsidiary, notwithstanding anything to the contrary in the definition of the term Permitted Refinancing);
(b)Indebtedness of the Loan Parties under the Loan Documents and other Indebtedness incurred pursuant to Section 2.14;
(c)(i) Attributable Indebtedness and purchase money obligations (including obligations in respect of mortgage, industrial revenue bond, industrial development bond, and similar financings) to finance the purchase, repair or improvement of fixed or capital assets within the limitations set forth in Section 7.01(i) and any Permitted Refinancing thereof; provided that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $50,000,000 and (ii) Attributable Indebtedness and Indebtedness incurred in connection with sale-leaseback transactions permitted under Section 7.05(f);
(d)Indebtedness in an aggregate principal amount for all Loan Parties not to exceed $150,000,000 at any time outstanding; provided that the Loan Parties may incur additional Indebtedness pursuant to this Section 7.03(d) so long as after giving effect thereto, if such Indebtedness is (i) secured by Liens on the Collateral ranking pari passu with the Liens on the Collateral securing the Obligations (pursuant to a customary first lien intercreditor agreement to be agreed with the Administrative Agent), the First Lien Net Leverage Ratio as of the last day of the most recently ended Test Period for which financial statements are internally available, after giving Pro Forma Effect to the incurrence of such additional Indebtedness shall not exceed on the date of the closing date with respect thereto, or, if the Borrower has made an LCT Election with respect thereto, on the LCT Test Date with respect thereto, 2.5:1.0, (ii) secured by Liens on the Collateral ranking junior to the Liens on the Collateral securing the Obligations (pursuant to a customary junior lien intercreditor agreement to be agreed with the Administrative Agent), the Senior Secured Net Leverage Ratio as of the last day of the most recently ended Test Period for which financial statements are internally available, after giving Pro Forma Effect to the incurrence of such additional Indebtedness shall not exceed on the date of the closing date with respect thereto, or, if the Borrower has made an LCT Election with respect thereto, on the LCT
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Test Date with respect thereto, 3.5:1.0, (iii) unsecured, the Total Leverage Ratio as of the last day of the most recently ended Test Period for which financial statements are internally available, after giving Pro Forma Effect to the incurrence of such additional Indebtedness shall not exceed on the date of the closing date with respect thereto, or, if the Borrower has made an LCT Election with respect thereto, on the LCT Test Date with respect thereto, 6.25:1.0 and (iv) (i) Permitted Subordinated Indebtedness for all Loan Parties (A) in an aggregate amount not to exceed $200,000,000 and (B) in an aggregate amount in excess of $200,000,000, solely to the extent that the full amount of Net Cash Proceeds of any such Indebtedness in excess of $200,000,000 is applied to prepay Term Loans pursuant to Section 2.05(b)(vii);
(e)(i) Indebtedness incurred to finance Permitted Acquisitions, and, upon notice to the Administrative Agent of its intention to do so upon receipt of the proceeds thereof, such Indebtedness may be incurred up to 180 days prior to the consummation of any such Permitted Acquisition so long as the Net Cash Proceeds of such Indebtedness are utilized within 180 days of the incurrence thereof to finance such Permitted Acquisition (or if not so utilized within such time period and not otherwise permitted under this Section 7.03, solely to the extent the Net Cash Proceeds of such Indebtedness are applied to prepay Term Loans pursuant to Section 2.05(b)(vii)), (ii) Indebtedness assumed in connection with any Permitted Acquisition, provided that such Indebtedness is not incurred in contemplation of such Permitted Acquisition, or (iii) Indebtedness owed to the seller of any property acquired in a Permitted Acquisition, in each case under this clause (e), so long as both immediately prior and after giving effect thereto (x) no Event of Default shall exist or result therefrom or, if the Borrower has made an LCT Election with respect thereto, on the LCT Test Date with respect thereto on a Pro Forma Basis no Event of Default has occurred and is continuing and on the date of the consummation thereof no Specified Event of Default has occurred and is continuing, and (y) if such Indebtedness is (1) secured by Liens on the Collateral ranking pari passu with the Liens on the Collateral securing the Obligations (pursuant to a customary first lien intercreditor agreement to be agreed with the Administrative Agent), the First Lien Net Leverage Ratio as of the last day of the most recently ended Test Period for which financial statements are internally available, after giving Pro Forma Effect to the incurrence of such additional Indebtedness shall not exceed on the date of the closing date with respect thereto, or, if the Borrower has made an LCT Election with respect thereto, on the LCT Test Date with respect thereto, 2.5:1.0, (2) secured by Liens on the Collateral ranking junior to the Liens on the Collateral securing the Obligations (pursuant to a customary junior lien intercreditor agreement to be agreed with the Administrative Agent), the Senior Secured Net Leverage Ratio as of the last day of the most recently ended Test Period for which financial statements are internally available, after giving Pro Forma Effect to the incurrence of such additional Indebtedness shall not exceed on the date of the closing date with respect thereto, or, if the Borrower has made an LCT Election with respect thereto, on the LCT Test Date with respect thereto, 3.5:1.0, and (3) unsecured, the Total Leverage Ratio as of the last day of the most recently ended Test Period for which financial statements are internally available, after giving Pro Forma Effect to the incurrence of such additional Indebtedness shall not exceed on the date of the closing date with respect thereto, or, if the Borrower has made an LCT Election with respect thereto, on the LCT Test Date with respect thereto, 6.25:1.0.
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(f)Indebtedness of any Loan Party or any Subsidiary that is not a Loan Party owing to any other Loan Party or any Subsidiary that is not a Loan Party in respect of an Investment permitted by Section 7.02; provided that all such Indebtedness of any Loan Party owed to any Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party, it being understood that such Loan Party may make payments thereon prior to the occurrence (but not during the continuance) of an Event of Default;
(g)Indebtedness consisting of promissory notes issued by any Loan Party to future, present or former officers, directors and employees, members of management, or consultants of STBV or any of its Subsidiaries or their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Ultimate Parent, to the extent the applicable Restricted Payment is permitted by Section 7.06;
(h)Existing Indebtedness outstanding on the date hereof and listed on Schedule 7.03(c)(i) and any Permitted Refinancing thereof;
(i)Indebtedness in respect of Swap Contracts incurred in the ordinary course of business and not for speculative purposes and Guarantees of suppliers’ obligations permitted pursuant Section 7.02(d);
(j)Guarantees by STBV or any Restricted Subsidiary in respect of Indebtedness of STBV or such Restricted Subsidiary otherwise permitted hereunder; provided that (i) no Guarantee by any Restricted Subsidiary of any Indebtedness constituting a Junior Financing or Senior Notes Financing Obligations shall be permitted unless such Restricted Subsidiary shall have also provided a Guarantee of the Obligations substantially on the terms set forth in the applicable Guaranty to the extent required by Section 6.12 and (ii) if the Indebtedness being Guaranteed is subordinated to the Obligations, such Guarantee shall be subordinated to the Guarantee of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination provisions of such Indebtedness;
(k)Indebtedness of STBV and the Restricted Subsidiaries in an aggregate principal amount at any time outstanding for all such Persons taken together not exceeding the greater of (x) $350,000,000 and (y) 40% of Consolidated EBITDA of the Borrower Parties for the most recent Test Period for which financial statements have been (or are required to have been) furnished pursuant to Section 6.01 ended on or prior to the date of such incurrence at any time outstanding (it being understood that any Indebtedness incurred in reliance on clause (y) shall remain permitted notwithstanding any subsequent reduction of such Consolidated EBITDA);
(l)Indebtedness (other than for borrowed money) subject to Liens permitted under Section 7.01;
(m)Indebtedness representing deferred compensation to employees of STBV or any Restricted Subsidiary incurred in the ordinary course of business;
(n)Indebtedness incurred in a Permitted Acquisition or Disposition under agreements providing for indemnification, the adjustment of the purchase price or similar adjustments;
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(o)Indebtedness consisting of obligations of STBV or any Restricted Subsidiary under deferred compensation or other similar arrangements incurred by such Person in connection with the Transactions and Permitted Acquisitions;
(p)Cash Management Obligations and other Indebtedness in respect of netting services, overdraft protections and similar arrangements in each case in connection with cash management and deposit accounts;
(q)Indebtedness consisting of (A) the financing of insurance premiums or (B) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r)Indebtedness incurred by the Borrower or any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims; provided that upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
(s)obligations in respect of surety, stay, customs and appeal bonds, performance bonds and performance and completion guarantees provided by STBV or any Restricted Subsidiary or obligations in respect of letters of credit related thereto, in each case in the ordinary course of business or consistent with past practice;
(t)Indebtedness in respect of any bankers’ acceptance, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business;
(u)[reserved];
(v)without duplication of any other Indebtedness, non-cash accruals of interest, accretion or amortization of original issue discount and/or pay-in-kind interest to the extent such Debt is permitted hereunder;
(w)Indebtedness of Foreign Subsidiaries under lines of credit in an aggregate principal amount at any time outstanding for all such Persons taken together not to exceed the greater of (x) $75,000,000 and (y) 8.3% of Consolidated EBITDA of the Borrower Parties for the most recent Test Period for which financial statements have been (or are required to have been) furnished pursuant to Section 6.01 ended on or prior to the date of incurrence of such Indebtedness;
(x)any joint and several liability arising as a result of (the establishment of) a fiscal unity (fiscale eenheid) and any guarantee granted pursuant to a declaration of joint and several liability used for the purpose of Section 2:403 of the Dutch Civil Code (and any residual liability under such declaration arising pursuant to section 2:404(2) of the Dutch Civil Code);
(y)Credit Agreement Refinancing Indebtedness;
(z)Indebtedness incurred by a Securitization Subsidiary in a Qualified Securitization Financing that is not recourse to STBV or any of its Restricted Subsidiaries, other than a
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Securitization Subsidiary (except for Standard Securitization Undertakings) in an aggregate principal amount at any time outstanding not to exceed the greater of (x) $300,000,000 and (y) 33.0% of Consolidated EBITDA of the Borrower Parties for the most recent Test Period for which financial statements have been (or are required to have been) furnished pursuant to Section 6.01 ended on or prior to the date of incurrence of such Indebtedness; and
(aa)all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (z).;
SECTION 7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, except that:
(a)any Restricted Subsidiary may merge with or liquidate into (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States, any state thereof or the District of Columbia (the “Jurisdictional Requirements”)); provided that the Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) STBV or any one or more Restricted Subsidiaries other than the Borrower; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment permitted by Section 7.02 and any Indebtedness corresponding to such Investment must be permitted by Section 7.03;
(b)(i) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary (other than the Borrower) may liquidate or dissolve or change its legal form if STBV determines in good faith that such action is in the best interests of the business of STBV and its Subsidiaries;
(c)so long as no Event of Default exists or would result therefrom, STBV or any Restricted Subsidiary may merge with any other Person in order to (i) effect an Investment permitted pursuant to Section 7.02 (provided that (A) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.12 and (B) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02) or (ii) to effect the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary in accordance with Section 6.15; provided that if the Borrower is a party to any transaction effected pursuant to this Section 7.04(c), (1) the Borrower shall be the continuing and surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent and (2) the Jurisdictional Requirements shall be satisfied; and
(d)so long as no Event of Default exists or would result therefrom, a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05, may be effected; provided that if the Borrower is a party to any transaction effected pursuant to this Section 7.04(e), (i) the Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent and (ii) the Jurisdictional Requirements shall be satisfied.
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SECTION 7.05 Dispositions. Make any Disposition except:
(a)Dispositions of obsolete, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries;
(b)Dispositions of inventory, cash and immaterial assets in the ordinary course of business;
(c)Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d)Dispositions of property by STBV or any Restricted Subsidiary to STBV or any other Restricted Subsidiary (including any such Disposition effected pursuant to a merger, liquidation or dissolution); provided that if the transferor of such property is a Guarantor or the Borrower (i) the transferee thereof is either the Borrower or a Guarantor, (ii) the transferee is not a Loan Party and (A) the fair market values of such property is paid in cash or Cash Equivalents to the Borrower or Guarantor or (B) the aggregate fair value of such property that does not satisfy clause (A) does not exceed $25,000,000 in any fiscal year plus the cumulative unused amounts under this clause (B) for all prior fiscal years since the Closing Date or (iii) to the extent such transaction constitutes an Investment, such transaction is permitted under Section 7.02;
(e)Dispositions permitted by Section 7.02, Section 7.04 and Section 7.06 and Liens permitted by Section 7.01;
(f)Dispositions by STBV or any Restricted Subsidiary of property pursuant to sale-leaseback transactions; provided that (i) the fair market value of all property so Disposed of shall not exceed $80,000,000 from and after the Closing Date, (ii) the purchase price for such property shall be paid to STBV or such Restricted Subsidiary for not less than 75% cash consideration; provided, however, that any Designated Non-Cash Consideration received by STBV or such Restricted Subsidiary in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (f) and clauses (k) and (o) of this Section 7.05 that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of the greater of (x) $22,500,000 and (y) 2.5% of Consolidated EBITDA for the most recent ended Test Period shall be deemed to be cash and (iii) all Net Cash Proceeds resulting from the Disposition pursuant to this Section 7.05(f) of Property with a fair market value in excess of $40,000,000 shall be applied to prepay Term Loans pursuant to Section 2.05(b)(i);
(g)Dispositions of Cash Equivalents;
(h)Dispositions of past due accounts receivable in connection with the collection, write down or compromise thereof;
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(i)leases, subleases, or sublicenses of property, and Dispositions of IP Rights in the ordinary course of business, in each case that do not materially interfere with the business of STBV and the Restricted Subsidiaries, and Dispositions of IP Rights under a research or development agreement in which the other party receives a license to IP Rights that result from such agreement;
(j)transfers of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event;
(k)Dispositions of property by STBV or any Restricted Subsidiary not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition, no Event of Default shall exist or would result from such Disposition, (ii) the Consolidated EBITDA generated by or attributable to all such property Disposed of in any fiscal year of STBV shall not exceed 15% of Consolidated EBITDA of STBV and its Subsidiaries for the cumulative period since the Closing Date (excluding any property disposed of in a Disposition or series of related Dispositions involving an aggregate fair market value of less than $5,000,000) and (iii) the sale price for such property (if in excess of $10,000,000) shall be paid to STBV or such Restricted Subsidiary for not less than 75% cash consideration; provided, however, that any Designated Non-Cash Consideration received by STBV or such Restricted Subsidiary in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) and clauses (f) and (o) of this Section 7.05 that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of the greater of (x) $22,500,000 and (y) 2.5% of Consolidated EBITDA for the most recent ended Test Period shall be deemed to be cash;
(l)Dispositions of Investments in Joint Ventures, to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties forth in, joint venture arrangements and similar binding arrangements in effect on the Closing Date; and
(m)Dispositions in the ordinary course of business consisting of the abandonment of IP Rights owned by each Loan Party and its Subsidiaries which, in the reasonable good faith determination of STBV or any Restricted Subsidiary, are uneconomical, negligible, obsolete or otherwise not material in the conduct of its business (it being understood and agreed that no Material Intellectual Property may be Disposed of in reliance on this clause (m));
(n)Dispositions of all or substantially all of its assets (upon voluntary liquidation or otherwise) to STBV or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor or the Borrower, then (i) the transferee must either be the Borrower or a Guarantor or (ii) to the extent constituting an Investment, such Investment must be an Investment permitted by Section 7.02 and any Indebtedness corresponding to such Investment must be permitted by Section 7.03;
(o)Dispositions of the Controls Business, provided that such Dispositions shall be for fair value and the payments received in respect thereof shall consist of at least 75% in cash and Cash Equivalents; provided, however, that any Designated Non-Cash Consideration received by STBV or such Restricted Subsidiary in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (o) and clauses (f) and (k) of this Section 7.05 that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of the greater of (x) $22,500,000 and (y) 2.5% of Consolidated EBITDA for the most recent ended Test Period shall be deemed to be cash;
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(p)sales of non-core assets acquired in connection with Permitted Acquisitions which are not material to the business of the Loan Parties;
(q)any disposition of real property to a Governmental Authority as a result of a condemnation of such real property;
(r)exclusive or non-exclusive licenses or similar agreements in respect of IP Rights;
(s)[Reserved];
(t)any sale, lease, transfer or other disposition of the property and assets set forth on Schedule 7.05(t);
(u)(x) sales of Securitization Assets and related assets of the type specified in the definition of “Securitization Financing” to a Securitization Subsidiary in connection with any Qualified Securitization Financing and (y) transfers of Securitization Assets and related assets of the type specified in the definition of “Securitization Financing” (or a fractional undivided interest therein) by a Securitization Subsidiary in a Qualified Securitization Financing;
provided that any Disposition of any property pursuant to this Section 7.05 (except pursuant to Sections 7.05(a), (d), (e), (h), (i), (j), (m), (n), (o), (p), (q), (s), (t), and (u)) shall be for not less than the fair market value of such property at the time of such Disposition. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent is hereby authorized by the Lenders to take any actions deemed appropriate in order to effect the foregoing.
SECTION 7.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a)each Restricted Subsidiary may make Restricted Payments to STBV and to other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to (i) STBV or such Restricted Subsidiary and (ii) to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests);
(b)STBV and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of such Person;
(c)the Original Borrowers and the Restricted Subsidiaries may make Restricted Payments necessary to consummate the Transactions;
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(d)to the extent constituting Restricted Payments, STBV and the Restricted Subsidiaries may enter into transactions expressly permitted by Section 6.25, Section 7.04 or Section 7.05;
(e)STBV and the Restricted Subsidiaries may make Restricted Payments to Parent:
(i)the proceeds of which will be used by the Parent for distribution to the Ultimate Parent to pay (or to make a Restricted Payment to enable it to pay) the tax liability for each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns filed by or on behalf of the Ultimate Parent; provided that such proceeds are limited to the tax liability attributable to STBV and the Restricted Subsidiaries determined as if STBV and the Restricted Subsidiaries filed separately;
(ii)the proceeds of which shall be used by the Parent for distribution to the Ultimate Parent to pay (or to make a Restricted Payment to enable it to pay) the Ultimate Parent’s (or any Ultimate Parent Entity’s) operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including, without limitation, administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed the greater of (x) $20,000,000 and (y) 2.25% of Consolidated EBITDA of the Borrower Parties for the most recent Test Period for which financial statements have been (or are required to have been) furnished pursuant to Section 6.01 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of the Ultimate Parent (or any Ultimate Parent Entity) attributable to the ownership or operations of STBV and the Restricted Subsidiaries;
(iii)the proceeds of which shall be used by the Parent for distribution to the Ultimate Parent to pay (or to make a Restricted Payment to enable it to pay) franchise taxes and other fees, taxes and expenses required to maintain the Ultimate Parent’s (or any Ultimate Parent Entity’s) corporate existence;
(iv)the proceeds of which will be used by the Parent for distribution to the Ultimate Parent to pay (or to make a Restricted Payment to enable it to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Ultimate Parent held by any future, present or former employee, director, officer, member of management or consultant of the Ultimate Parent or any of its Subsidiaries (or the estate, family members, spouse or former spouse of any of the foregoing); provided that the aggregate amount of Restricted Payments made under this clause (e)(iv) does not exceed in any calendar year $20,000,000 (with unused amounts in any calendar year being carried over to succeeding calendar years); and provided further that such amount in any calendar year may be increased by an amount not to exceed (1) the cash proceeds from the sale of Equity Interests to employees, directors, officers, members of management or consultants of the Ultimate Parent or of its Subsidiaries that occurs after the Closing Date to the extent such proceeds constitute Eligible Equity Proceeds plus (2) the amount of any cash bonuses otherwise payable to employees, directors, officers, members of management or consultants of the Ultimate Parent or any of its Subsidiaries (or the estate, family members, spouse or former spouse of any of the foregoing) in connection with the Transactions that are foregone in return for the receipt of Equity Interests of the Ultimate Parent pursuant to a deferred compensation plan of such Person plus (3) the cash proceeds of key man life insurance policies received by the Ultimate Parent (to the extent such proceeds are contributed to STBV) or STBV or any Restricted
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Subsidiary after the Closing Date (provided that the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (1), (2) and (3) above in any calendar year) less (4) the amount of any Restricted Payments previously made pursuant to clauses (1), (2) and (3) of this clause (e)(iv);
(v)to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing or consummation of such Investment or at future times as may be scheduled at the time of such closing or consummation to be made thereafter in connection therewith and (B) the Ultimate Parent shall, immediately following the closing or consummation thereof, cause or have caused (1) all property acquired (whether assets or Equity Interests) to be contributed to STBV or another Loan Party (or a Person that will become a Loan Party upon receipt of such contribution) or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or a Loan Party in order to consummate such Permitted Acquisition, in each case, in accordance with the requirements of Section 6.12;
(vi)the proceeds of which shall be used by the Parent for distribution to the Ultimate Parent to make (or to make a Restricted Payment to enable it to make) cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Ultimate Parent; provided that any such cash payment shall not be for the purpose of evading the limitations set forth in this Section 7.06 (as determined in good faith by the board of directors or the managing board, as the case may be, of STBV (or any authorized committee thereof));
(vii)the proceeds of which shall be used by the Parent for distribution to the Ultimate Parent to pay (or to make a Restricted Payment to enable it to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(viii)the proceeds of which shall be used by the Parent for distribution to the Ultimate Parent to pay (or to make a Restricted Payment to enable it to pay) customary salary, bonus and other benefits payable to officers and employees of the Ultimate Parent to the extent such salaries, bonuses and other benefits are directly attributable to the ownership or operations of STBV and the Restricted Subsidiaries; and
(ix)the proceeds of which shall be used by the Parent for distribution to the Ultimate Parent to pay (or to make a Restricted Payment to enable it to pay) amounts of the type described in Section 6.25(d) or Section 6.25(i), in each case to the extent the applicable payment would be permitted under the applicable clause in Section 6.25 if such payment were to be made by a Borrower Party;
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(f)so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, in addition to the foregoing Restricted Payments, the Ultimate Parent, the Parent and the Borrower Parties may make additional Restricted Payments to their respective shareholders in an aggregate amount not to exceed (i) $50,000,000 in any fiscal year (with unused amounts in any calendar year being carried over to succeeding calendar years) plus (ii) additional amounts to the extent, giving Pro Forma Effect to such Restricted Payment, the Senior Secured Net Leverage Ratio as of the last day of the immediately preceding Test Period does not exceed 2.5:1.0; and
(g)so long as (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) the Senior Secured Net Leverage Ratio as of the last day for which financial statements have been delivered pursuant to Section 6.01 was less than 3.0:1.0 (determined on a Pro Forma Basis after giving effect to any Restricted Payment to be made pursuant to this Section 7.06(g)), in addition to the foregoing Restricted Payments, the Ultimate Parent, the Parent, STBV and the Restricted Subsidiaries may make additional Restricted Payments to their respective shareholders in an amount not to exceed the Available Amount as in effect immediately prior to the time of the making of such Restricted Payment;
(h) the payment of Restricted Payments in an aggregate amount per annum not to exceed 7.0% of the Market Capitalization, provided that on the date of declaration of any such dividend or on the date of the making of any other such Restricted Payment, after giving effect to such dividend or other Restricted Payment, there is no continuing or resulting Event of Default;
(i)Restricted Payments in respect of any guarantee granted pursuant to a declaration of joint and several liability used for the purpose of Section 2:403 of the Dutch Civil Code (and any residual liability under such declaration arising pursuant to section 2:404(2) of the Dutch Civil Code); and
(j)so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, in addition to the foregoing Restricted Payments, the Ultimate Parent, the Parent, STBV and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount not to exceed the greater of (x) $150,000,000 and (y) 20.0% of Consolidated EBITDA of the Borrower Parties for the most recent Test Period for which financial statements have been (or are required to have been) furnished pursuant to Section 6.01 ended on or prior to the date.
SECTION 7.07 [Reserved].
SECTION 7.08 [Reserved].
SECTION 7.09 Burdensome Agreements. Enter into or permit to exist any Contractual Obligation (other than this Agreement or any other Loan Document, the Senior Note Indentures or customary terms in any documentation providing for any Permitted Refinancing thereof or any similar instruments with substantially consistent terms that are not materially more burdensome than the foregoing) that limits the ability of the Borrower or any other Loan Party to create, incur, assume or suffer to exist Liens on property of such Person for the benefit of the Secured Parties with respect to the Facilities and the Obligations or under the Loan Documents; provided that the foregoing shall not apply to Contractual Obligations which (i) (x) arise under applicable law, (y) exist on the date hereof and (to the extent not otherwise permitted by this Section 7.09) are listed on Schedule 7.09 hereto or (z) to the extent Contractual Obligations permitted by clause (y) are set forth in an agreement evidencing Indebtedness, are set forth in any agreement evidencing any permitted renewal, extension or refinancing of such Indebtedness so
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long as such renewal, extension or refinancing does not expand the scope of the restrictions described in clause (x) or (y) that are contained in such Contractual Obligation, (ii) are binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary of STBV, so long as such Contractual Obligations were not entered into in contemplation of such Person becoming a Restricted Subsidiary of STBV, (iii) represent Indebtedness of a Restricted Subsidiary which is permitted by Section 7.03, (iv) arise in connection with any Disposition permitted by Section 7.05, (v) are customary provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted under Section 7.02 and applicable solely to such joint venture, (vi) are negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under Section 7.03 but solely to the extent any negative pledge relates to the property financed by or the subject of such Indebtedness (and excluding in any event any Indebtedness constituting any Junior Financing) or that expressly permits Liens for the benefit of the Agents and the Lenders with respect to the credit facilities established hereunder and the Obligations under the Loan Documents on a senior basis without the requirement that such holders of such Indebtedness be secured by such Liens on an equal and ratable, or junior, basis, (vii) are customary restrictions on leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such restrictions may relate to the assets subject thereto, (viii) comprise restrictions imposed by any agreement relating to secured Indebtedness permitted pursuant to Section 7.03 to the extent that such restrictions apply only to the property or assets securing such Indebtedness, (ix) are customary provisions restricting subletting or assignment of any lease governing a leasehold interest or (x) are customary provisions restricting assignment or transfer of any agreement entered into in the ordinary course of business.
SECTION 7.10 Holding Company. The Parent (a) shall not engage in any business or activity other than (i) the ownership of all the outstanding Equity Interests in STBV (or other Equity Interests in accordance with clause (b) below) and activities incidental thereto, (ii) activities necessary to consummate the Transactions and the other transactions contemplated hereby and (iii) corporate maintenance activities (including the payment of taxes and expenses associated with being a holding company), (b) shall not own or acquire any assets (other than Equity Interests in STBV or other Subsidiaries of STBV that are pledged to secure the Obligations pursuant to a Collateral Document and cash and Cash Equivalents in amounts reasonably required in connection with its permitted business activities or representing proceeds of a Restricted Payment permitted hereunder temporarily held pending further distribution to the Ultimate Parent or any intermediate holding company), (c) shall not create, incur, assume or permit to exist any Lien on any property or asset owned by it, other than Liens under the Loan Documents or non-consensual Liens permitted under Section 7.01, (d) shall not incur any liabilities (other than liabilities under the Loan Documents, unsecured Guarantees permitted hereunder, liabilities relating to the performance of its obligations under such documents, liabilities in respect of guarantees granted pursuant to a declaration of joint and several liability used for the purpose of Section 2:403 of the Dutch Civil Code (and any residual liability under such declaration arising pursuant to section 2:404(2) of the Dutch Civil Code) and other liabilities (not including Indebtedness) incidental to its existence and permitted business activities), (e) may make any public offering of its common stock or any other issuance of its Equity Interests not prohibited by Article 7, and (f) may engage in any transaction that Parent is otherwise permitted to enter into or consummate under this Article 7.
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SECTION 7.11 Senior Secured Net Leverage Ratio. Except with the consent of the Required Revolving Credit Lenders, the Borrower Parties will not permit the Senior Secured Net Leverage Ratio as of the last day of any Test Period ending during any period set forth in the table below to be greater than the ratio set forth below opposite the last day of such Test Period:
| | | | | |
| Test Period | Senior Secured Net Leverage Ratio |
| June 30, 2011-December 31, 2011 | 5.00 to 1.0 |
| Thereafter | 5.00 to 1.0 |
Notwithstanding the foregoing, this Section 7.11 shall be in effect (and shall only be in effect) when the sum of the aggregate principal amount of any Revolving Credit Loans and/or Swing Line Loans then outstanding plus the aggregate amount of any L/C Obligations then outstanding (excluding Letters of Credit that have been Cash Collateralized to at least 100% of the undrawn amount thereof) at such time exceeds 20% of the total amount of the Revolving Credit Commitments (including any Additional Revolving Credit Commitments).
SECTION 7.12 Amendments of Certain Documents. Amend or otherwise modify (a) any of its Organization Documents in a manner materially adverse to the Administrative Agent or the Lenders or (b) any term or condition of any Junior Financing Documentation in any manner materially adverse to the interests of the Administrative Agent or the Lenders, in each case without the consent of the Administrative Agent.
SECTION 7.13 Accounting Changes. Make any change in fiscal year; provided, however, that the Borrower may, upon written notice to the Administrative Agent, change its fiscal year to any other fiscal year reasonably acceptable to the Administrative Agent, in which case, the Borrower and the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement and to the covenants contained herein that are deemed reasonably necessary by the Administrative Agent, and not objected to by the Required Lenders, to reflect such change in fiscal year.
SECTION 7.14 Prepayments, Etc. of Subordinated Indebtedness. (a) Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner (it being understood that payments of regularly scheduled principal and interest shall be permitted) any subordinated Indebtedness having an aggregate principal amount of more than the Threshold Amount (collectively, “Junior Financing”), except (i) so long as no Event of Default shall have occurred and be continuing or would result therefrom, (x) for an aggregate purchase price not to exceed $25,000,000; provided that such amount may be increased by an amount equal to the sum of (1) if the Senior Secured Net Leverage Ratio as of the last day for which financial statements have been delivered pursuant to Section 6.01 was less than 5.0:1.0, $25,000,000 plus (2) an amount equal to 100% of the Available Amount or (y) the refinancing thereof with the Net Cash Proceeds of any Permitted Subordinated Indebtedness or Eligible Equity Proceeds that are Not Otherwise Applied, (ii) additional amounts to the extent that, in the case of this clause (ii), the Senior Secured Net Leverage Ratio as of the last day of the most recently ended Test Period for which financial statements are internally available or, to the extent the Borrower has made an LCT Election with respect thereto, as of the date of the most recent financial statements delivered pursuant to Section 6.01 prior to the LCT Test Date with respect thereto, after giving Pro Forma Effect to any such Investment, does not exceed 2.50:1.00 and (iii)
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the conversion of any Junior Financing to Equity Interests (other than Disqualified Equity Interests).
SECTION 7.15 Designated Senior Debt. Designate any Indebtedness (other than under this Agreement and the other Loan Documents) of the Borrower or the Restricted Subsidiaries as “Designated Senior Indebtedness” or “Senior Secured Financing” (or any comparable term) under, and as defined in, any Junior Financing Documentation.
Article 8
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.01 Events of Default. Any of the following shall constitute an Event of Default:
(a)Non-Payment. The Borrower or any other Loan Party fails to pay (i) when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise), any amount of principal of any Loan or any L/C Borrowing, or (ii) within five (5) Business Days after the same becomes due, any interest or any fee payable pursuant to Section 2.09 or (iii) within ten (10) Business Days after invoice or written demand, any other amount payable hereunder or with respect to any other Loan Document; or
(b)Specific Covenants. Any Loan Party fails to perform or observe any term, covenant or agreement contained in any of Section 6.03(a), Section 6.05(a) (solely with respect to the Borrower) or Section 6.11, Section 6.19 or Article 7; provided, further, that any Event of Default under Section 7.11 shall not constitute an Event of Default for purposes of any Term Loans unless and until a period of 30 consecutive days has elapsed since the first date on which the Required Revolving Credit Lenders have actually declared all Revolving Credit Loans and related Obligations to be immediately due and payable in accordance with Section 8.02 of this Agreement as a result of the Borrower’s failure to perform or observe any term, covenant or agreement contained in Section 7.11 and such declaration has not been rescinded on or before such date; or
(c)Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in Section 8.01(a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for thirty (30) days after notice thereof by the Administrative Agent to the Borrower; or
(d)Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party herein, in any other Loan Document, or in any document required to be delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or, as provided in Section 4.02, deemed made; or
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(e)Cross-Default. Any Loan Party or any Restricted Subsidiary (i) fails to make any payment beyond the applicable grace period with respect thereto, if any (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness (other than Indebtedness hereunder and determined, in the case of any Swap Contract, by reference to the Swap Termination Value of such Swap Contract) having an aggregate outstanding principal amount of not less than the Threshold Amount, or (ii) fails to observe or perform any other agreement or condition relating to any such Indebtedness, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity; provided that this clause (e)(ii) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness; or
(f)Insolvency Proceedings, Etc. Any Loan Party or any of its Restricted Subsidiaries institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes a general assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for sixty (60) calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty (60) calendar days, or an order for relief is entered in any such proceeding; or
(g)Inability to Pay Debts; Attachment. (i) Any Loan Party or any Restricted Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within sixty (60) days after its issue or levy; or
(h)Judgments. There is entered against any Loan Party or any Restricted Subsidiary one or more final judgments or orders for the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which such insurer has been notified of such judgment or order and has not denied coverage) and there is a period of sixty (60) consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or
(i)ERISA. An ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect; or
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(j)Invalidity of Loan Documents. Any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder (including as a result of a transaction permitted under Section 7.04 or Section 7.05) or satisfaction in full of all the Obligations (other than contingent indemnification obligations not then due and payable or Letters of Credit that are collateralized in a manner reasonably satisfactory to the applicable L/C Issuer), ceases to be in full force and effect; or any Loan Party contests in writing the validity or enforceability of any provision of any Loan Document; or any Loan Party denies in writing that it has any or further liability or obligation under any Loan Document (other than as a result of repayment in full of the Obligations (other than contingent indemnification obligations not then due and payable or Letters of Credit that are collateralized in a manner reasonably satisfactory to the applicable L/C Issuer) and termination of the Aggregate Commitments or as a result of a transaction permitted hereunder or thereunder (including under Section 7.04 or Section 7.05)), or purports in writing to revoke or rescind any Loan Document; or
(k)Change of Control. There occurs any Change of Control; or
(l)Collateral Documents. Any Collateral Document after delivery thereof pursuant to Section 4.02 or Section 6.12 shall for any reason (other than pursuant to the terms thereof including as a result of a transaction permitted under Section 7.04 or Section 7.05) cease to create a valid and perfected (if and to the extent required to be perfected under the Security Agreement) first priority Lien on and security interest in any Collateral covered thereby that has a value greater $10,000,000 or that is otherwise material to the business of any Loan Party, subject to Liens permitted under Section 7.01, or any Loan Party shall assert in writing such invalidity or lack of perfection (except to the extent perfection of not required under the Security Agreement) or priority (other than in an informational notice to the Administrative Agent), except (i) to the extent that any such loss of perfection or priority results from the failure of the Administrative Agent to maintain possession of certificates or promissory notes actually delivered to it representing securities or instruments pledged under the Collateral Documents or to file Uniform Commercial Code continuation statements, (ii) as to Collateral consisting of real property, to the extent that such losses are covered by a lender’s title insurance policy and the related insurer shall not have ultimately denied or disclaimed in writing that such losses are covered by such title insurance, notwithstanding any initial denial or disclaimer of coverage by the Title Company under lender’s title insurance policy, (iii) as a result of the sale, release or other Disposition of the applicable Collateral in a transaction permitted under the Loan Documents and (iv) relating to an immaterial amount of the Collateral.
SECTION 8.02 Remedies Upon Event of Default. (i) If any Event of Default occurs and is continuing (other than an Event of Default under Section 8.01(b) as a result of the Borrower Parties’ failure to perform or observe any term, covenant or agreement contained in Section 7.11 unless the conditions of the second proviso contained therein have been satisfied), the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:
(a)declare the Commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such Commitments and obligation shall be terminated;
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(b)declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;
(c)require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and
(d)exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable Law;
provided that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
(i)Subject to the first proviso in Section 8.01(b), if any Event of Default under Section 8.01(b) occurs and is continuing as a result of the Borrower’s failure to perform or observe any term, covenant or agreement contained in Section 7.11, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Revolving Credit Lenders, take any or all of the following actions:
(e)declare the Revolving Credit Commitment of each Revolving Credit Lender to make Revolving Credit Loans and Swing Line Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such Revolving Credit Commitments and obligation shall be terminated;
(f)declare the unpaid principal amount of all outstanding Revolving Credit Loans and Swing Line Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document under or in respect of the Class pursuant to which Revolving Credit Loans are made to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;
(g)require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and
(h)exercise on behalf of itself and the Revolving Credit Lenders all rights and remedies available to it and the Revolving Credit Lenders under the Loan Documents or applicable laws, in each case under or in respect of the Class pursuant to which Revolving Credit Loans are made.
SECTION 8.03 Application of Funds. After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02), any amounts received on account of the Obligations shall be applied by the Administrative Agent in the following order:
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First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including Attorney Costs payable under Section 10.04 and amounts payable under Article 3, but not including principal of or interest on any Loan) payable to the Administrative Agent in its capacity as such;
Second, to the payment in full of the Unfunded Advances/Participations (the amounts so applied to be distributed between or among the Administrative Agent, the Swing Line Lender and any L/C Issuer pro rata in accordance with the amounts of Unfunded Advances/Participations owed to them on the date of any distribution);
Third, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including Attorney Costs payable under Section 10.05 and amounts payable under Article 3), ratably among them in proportion to the amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans and L/C Borrowings, ratably among the Lenders in proportion to the respective amounts described in this clause Fourth payable to them;
Fifth, ratably to (a) the Administrative Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit and (b) to payment of (i) that portion of the Obligations constituting unpaid principal of the Loans, (ii) the Secured Hedge Obligations and the Cash Management Obligations, ratably among the Secured Parties in proportion to the respective amounts described in this clause Fifth held by them;
Sixth, to the payment of all other Obligations of the Loan Parties that are due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the other Secured Parties on such date; and
Last, the balance, if any, after all of the Obligations (other than contingent indemnification obligations not then due and payable and Letters of Credit that are cash collateralized on terms reasonably satisfactory to the applicable L/C Issuer) have been paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth(b) above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations then owing and unpaid, if any, in the order set forth above and, if no such Obligations remain outstanding, delivered to the Borrower. Notwithstanding the foregoing, amounts received from any Loan Party that is not an “Eligible Contract Participant” (as defined in the Commodity Exchange Act) shall not be applied to its Obligations that are Excluded Swap Obligations.
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Article 9
ADMINISTRATIVE AGENT AND OTHER AGENTS
SECTION 9.01 Authorization and Action. (a) Each Lender (in its capacities as a Lender, a Swing Line Lender (if applicable), an Issuing Bank (if applicable) and on behalf of itself and its Affiliates as potential Hedge Banks) hereby appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto. As to any matters not expressly provided for by the Loan Documents (including, without limitation, enforcement or collection of the Loans), no Agent shall be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders, and such instructions shall be binding upon all Lenders, all Hedge Banks and all holders of Notes; provided, however, that no Agent shall be required to take any action that exposes such Agent to personal liability or that is contrary to this Agreement or applicable law. Each Agent agrees to give to each Lender prompt notice of each notice given to it by the Borrower pursuant to the terms of this Agreement.
(b) In furtherance of the foregoing, each Lender (in its capacities as a Lender, a Swing Line Lender (if applicable), an Issuing Bank (if applicable) and on behalf of itself and its Affiliates as potential Hedge Banks) hereby appoints and authorizes the Collateral Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Collateral Agent (and any Supplemental Collateral Agents appointed by the Collateral Agent pursuant to Section 9.01(c) for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights or remedies thereunder at the direction of the Collateral Agent), shall be entitled to the benefits of this Article 9 (including, without limitation, Section 9.05 as though any such Supplemental Collateral Agents were an “Agent” under the Loan Documents) as if set forth in full herein with respect thereto.
(c) Any Agent may execute any of its duties under this Agreement or any other Loan Document (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents or of exercising any rights and remedies thereunder at the direction of the Collateral Agent) by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. The Collateral Agent may also from time to time, when the Collateral Agent deems it to be necessary or desirable, appoint one or more trustees, co-trustees, collateral co-agents, collateral subagents or attorneys-in-fact (each, a “Supplemental Collateral Agent”) with respect to all or any part of the Collateral; provided, however, that no such Supplemental Collateral Agent shall be authorized to take any action with respect to any Collateral unless and except to the extent expressly authorized in writing by the Collateral Agent. Should any instrument in writing from the Borrower or any other Loan Party be required by any Supplemental Collateral Agent so appointed by the Collateral Agent to more fully or certainly vest in and confirm to such Supplemental Collateral Agent such rights, powers, privileges and duties, the Borrower shall, or shall cause such Loan Party to, execute, acknowledge and deliver any and all such instruments promptly upon request by the Collateral Agent. If any Supplemental Collateral Agent, or successor thereto, shall die, become incapable of acting, resign or be removed, all rights, powers, privileges and duties of such Supplemental Collateral Agent, to the extent permitted by law, shall automatically vest in and be exercised by the
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Collateral Agent until the appointment of a new Supplemental Collateral Agent. No Agent shall be responsible for the negligence or misconduct of any agent, attorney-in-fact or Supplemental Collateral Agent that it selects in accordance with the foregoing provisions of this Section 9.01(c) in the absence of such Agent’s gross negligence, bad faith or willful misconduct.
SECTION 9.02 Agents’ Reliance, Etc. Neither any Agent nor any of their respective directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with the Loan Documents, except for its or their own gross negligence, bad faith or willful misconduct. Without limitation of the generality of the foregoing, each Agent: (a) may consult with legal counsel (including counsel for any Loan Party), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (b) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with the Loan Documents; (c) shall not have any duty to ascertain or to inquire as to the performance, observance or satisfaction of any of the terms, covenants or conditions of any Loan Document on the part of any Loan Party or the existence at any time of any Default under the Loan Documents or to inspect the property (including the books and records) of any Loan Party; (d) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; and (e) shall incur no liability under or in respect of any Loan Document by acting upon any notice, consent, certificate or other instrument or writing (which may be by telegram or telecopy) believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 9.03 Morgan Stanley Senior Funding, Inc., Barclays Bank PLC, Goldman Sachs Bank USA, Bank of Montreal, Royal Bank of Canada, Mizuho Corporate Bank, Ltd., Raymond James Bank, FSB and Crédit Industriel et Commercial and Affiliates. With respect to its Commitments, the Loans made by it and any Notes issued to it, each of Morgan Stanley Senior Funding, Inc., Barclays Bank PLC, Goldman Sachs Bank USA, Bank of Montreal, Royal Bank of Canada, Mizuho Corporate Bank, Ltd., Raymond James Bank, FSB and Crédit Industriel et Commercial shall have the same rights and powers under the Loan Documents as any other Lender and may exercise the same as though they were not Agents; and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include Morgan Stanley Senior Funding, Inc., Barclays Bank PLC, Goldman Sachs Bank USA, Bank of Montreal, Royal Bank of Canada, Mizuho Corporate Bank, Ltd., Raymond James Bank, FSB and Crédit Industriel et Commercial in their individual capacities. Morgan Stanley Senior Funding, Inc., Barclays Bank PLC, Goldman Sachs Bank USA, Bank of Montreal, Royal Bank of Canada, Mizuho Corporate Bank, Ltd., Raymond James Bank, FSB and Crédit Industriel et Commercial and their affiliates may accept deposits from, lend money to, act as trustee under indentures of, accept investment banking engagements from and generally engage in any kind of business with, any Loan Party, any of its Subsidiaries and any Person that may do business with or own securities of any Loan Party or any such Subsidiary, all as if Morgan Stanley Senior Funding, Inc., Barclays Bank PLC, Goldman Sachs Bank USA, Bank of Montreal, Royal Bank of Canada, Mizuho Corporate Bank, Ltd., Raymond James Bank, FSB and Crédit Industriel et Commercial were not an Agents and without any duty to account therefor to the Lenders. No Agent shall have any duty to disclose any information obtained or received by it or any of its Affiliates relating to any Loan Party or any of its Subsidiaries to the extent such information was obtained or received in any capacity other than as such Agent.
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SECTION 9.04 Lender Credit Decision. Each Lender acknowledges that it has, independently and without reliance upon any Agent or any other Lender and based on the financial statements referred to in Section 5.01 and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any 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 decisions in taking or not taking action under this Agreement.
SECTION 9.05 Indemnification. (a) Each Lender severally agrees to indemnify each Agent (to the extent not promptly reimbursed by the Borrower) from and against such Lender’s ratable share (determined as provided below) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against such Agent in any way relating to or arising out of the Loan Documents or any action taken or omitted by such Agent under the Loan Documents (collectively, the “Indemnified Costs”); provided, however, that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s gross negligence or willful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction. Without limitation of the foregoing, each Lender agrees to reimburse each Agent promptly upon demand for its ratable share of any costs and expenses (including, without limitation, reasonable fees and expenses of counsel) payable by the Borrower under Section 10.04, to the extent that such Agent is not promptly reimbursed for such costs and expenses by the Borrower. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 9.05 applies whether any such investigation, litigation or proceeding is brought by any Lender or any other Person.
(b) Each Revolving Credit Lender severally agrees to indemnify the Issuing Bank (to the extent not promptly reimbursed by the Borrower) from and against such Revolving Credit Lender’s ratable share (determined as provided below) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against the Issuing Bank in any way relating to or arising out of the Letters of Credit or the Loan Documents or any action taken or omitted by the Issuing Bank under the Letters of Credit or the Loan Documents; provided, however, that no Revolving Credit Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Issuing Bank’s gross negligence or willful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction. Without limitation of the foregoing, each Revolving Credit Lender agrees to reimburse the Issuing Bank promptly upon demand for its ratable share of any costs and expenses (including, without limitation, reasonable fees and expenses of counsel) payable by the Borrower under Section 9.04, to the extent that the Issuing Bank is not promptly reimbursed for such costs and expenses by the Borrower.
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(c) For purposes of this Section 9.05, each Lender’s respective ratable share of any amount shall be determined, at any time, according to the sum of (i) the aggregate principal amount of the Loans outstanding at such time and owing to such Lender, (ii) such Lender’s Pro Rata Share of the aggregate available amount of all Letters of Credit outstanding at such time, (iii) such Lender’s unused Term Commitments at such time and (iv) such Lender’s unused Revolving Credit Commitments at such time; provided that the aggregate principal amount of Swing Line Loans owing to the Swing Line Lender and of Letter of Credit Loans owing to the Issuing Bank shall be considered to be owed to the Revolving Credit Lenders ratably in accordance with their respective Revolving Credit Commitments. The failure of any Lender to reimburse any Agent or the Issuing Bank, as the case may be, promptly upon demand for its ratable share of any amount required to be paid by the Lenders to such Agent or the Issuing Bank, as the case may be, as provided herein shall not relieve any other Lender of its obligation hereunder to reimburse such Agent or the Issuing Bank, as the case may be, for its ratable share of such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse such Agent or the Issuing Bank, as the case may be, for such other Lender’s ratable share of such amount. Without prejudice to the survival of any other agreement of any Lender hereunder, the agreement and obligations of each Lender contained in this Section 9.05 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the other Loan Documents.
SECTION 9.06 Successor Agents. Any Agent may resign as to any or all of the Facilities at any time by giving written notice thereof to the Lenders and the Borrower and may be removed as to all of the Facilities at any time with or without cause by the Required Lenders; provided, however, that any removal of the Administrative Agent will not be effective until it or its Affiliate has also been replaced as Collateral Agent, Swing Line Lender and Issuing Bank and discharged from all of its obligations in respect thereof. Upon any such resignation or removal, the Required Lenders shall have the right (with the consent of the Borrower, so long as no Event of Default has occurred or is continuing) to appoint a successor Agent as to such of the Facilities as to which such Agent has resigned or been removed. If no successor Agent shall have been so appointed by the Required Lenders (or, so long as no Event of Default has occurred or is continuing, consented to by the Borrower), and shall have accepted such appointment, within 30 days after the retiring Agent’s giving of notice of resignation or the Required Lenders’ removal of the retiring Agent, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, which shall be a commercial bank organized under the laws of the United States or of any State thereof and having a combined capital and surplus of at least $250,000,000. Upon the acceptance of any appointment as Agent hereunder by a successor Agent as to all of the Facilities and, in the case of a successor Collateral Agent, upon the execution and filing or recording of such financing statements, or amendments thereto, and such amendments or supplements to the Mortgages, and such other instruments or notices, as may be necessary or desirable, or as the Required Lenders may reasonably request, in order to continue the perfection of the Liens granted or purported to be granted by the Collateral Documents, such successor Agent shall succeed to and become vested with all the rights, powers, discretion, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documents. Upon the acceptance of any appointment as Agent hereunder by a successor Agent as to less than all of the Facilities and, in the case of a successor Collateral Agent, upon the execution and filing or recording of such financing statements, or amendments thereto, and such amendments or supplements to the Mortgages, and such other instruments or notices, as may be reasonably necessary or desirable, or as the Required Lenders may request, in order to continue the perfection of the Liens granted or purported to be granted by the Collateral Documents, such successor Agent shall succeed to and become vested with all the rights, powers, discretion, privileges and duties of the retiring Agent as to such Facilities, other than with respect to funds transfers and other similar aspects of the administration of Borrowings under such Facilities, issuances of Letters of Credit (notwithstanding any resignation
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as Agent with respect to the Letter of Credit Facility) and payments by the Borrower in respect of such Facilities, and the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement as to such Facilities, other than as aforesaid. If within 45 days after written notice is given of the retiring Agent’s resignation or removal under this Section 9.06 no successor Agent shall have been appointed and shall have accepted such appointment, then on such 45th day (a) the retiring Agent’s resignation or removal shall become effective, (b) the retiring Agent shall thereupon be discharged from its duties and obligations under the Loan Documents and (c) the Required Lenders shall thereafter perform all duties of the retiring Agent under the Loan Documents until such time, if any, as the Required Lenders appoint a successor Agent as provided above. After any retiring Agent’s resignation or removal hereunder as Agent as to any of the Facilities shall have become effective, the provisions of this Article 9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent as to such Facilities under this Agreement.
SECTION 9.07 Other Agents; Arrangers and Managers. None of the Lenders or other Persons identified on the facing page or signature pages of this Agreement as a “syndication agent,” “co-documentation agent,” “bookrunner,” or “lead arranger” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than to the extent expressly set forth herein and, in the case of such Lenders, those applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders or other Persons so identified shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders or other Persons so identified in deciding to enter into this Agreement or in taking or not taking action hereunder.
SECTION 9.08 Release of Liens and Guarantees. (a) The Administrative Agent, Collateral Agent, the Lenders, the L/C Issuers and the other Secured Parties hereby irrevocably agree that the Liens granted to any of them by any Foreign Guarantor on any Collateral, any Lien granted by any owner of such Foreign Guarantor in the Equity Interests of such Foreign Guarantor, and the Guarantee of such Foreign Guarantor shall be automatically released or terminated, as applicable, upon the delivery of a certificate of a Responsible Officer of the Borrower certifying that (i) such Foreign Guarantor is not a Material Foreign Subsidiary and (ii) on a pro forma basis, a Guarantor Coverage Event does not exist. Any such release shall not in any manner discharge, affect, or impair the Guaranteed Obligations or any Liens (other than the Liens released) upon (or obligations (other than those released) of the Loan Parties in respect of) all interests retained by the Loan Parties to the extent otherwise constituting Collateral.
(b) The Collateral Agent may rely conclusively on a certificate provided to it by any Loan Party as to any matter of fact described in the preceding clause (a) without further inquiry.
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(c) The Lenders, the L/C Issuers and the other Secured Parties hereby authorize the Administrative Agent and the Collateral Agent, as applicable, to execute and deliver any instruments, documents, and agreements necessary or desirable to evidence, effect or confirm the release of any Loan Party or Collateral pursuant to the foregoing provisions of this Section 9.08 and to return the Loan Parties all possessory collateral (including any Equity Interests certificates, promissory notes or other instruments) held by it in respect of any Collateral so released, all without the need for further consent of any Lender or any other Secured Party. For the avoidance of doubt, upon any such release, any representation, warranty or covenant contained in any Loan Document relating to any such Loan Party (including any Guarantee by it) or such Collateral shall no longer be deemed to be made.
(d) The Administrative Agent and the Collateral Agent shall promptly (and the Secured Parties hereby authorize and direct the Administrative Agent and the Collateral Agent to) take such action and execute any such documents or instruments as may be reasonably requested by the Borrower in connection with any release or termination contemplated by this Section 9.08; provided that such release shall be without recourse to or warranty by the Administrative Agent or Collateral Agent, other than as to the authority of the Administrative Agent or Collateral Agent to execute and deliver any such document or instrument. The Borrowers agree to pay all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent or the Collateral Agent (and their respective representatives) in connection with taking such actions.
SECTION 9.09 Recovery of Erroneous Payments. (a) If the Administrative Agent (x) notifies a Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender, L/C Issuer or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.09(b) and held in trust for the benefit of the Administrative Agent, and such Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), 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 (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) 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 in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
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(b) Without limiting immediately preceding clause (a), each Lender, L/C Issuer, Secured Party or any Person who has received funds on behalf of a Lender, L/C Issuer or Secured Party (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) 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 this Agreement or 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, (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), or (z) that such Lender, L/C Issuer or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each such case:
(i)it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii)such Lender, L/C Issuer or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.09(b).
For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.09(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.09(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender, L/C Issuer or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, L/C Issuer or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender, L/C Issuer or Secured Party under any Loan Document with respect to any payment of principal, interest, fees or other amounts, against any amount that the Administrative Agent has demanded to be returned under immediately preceding clause (a).
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time, then effective immediately (with the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or
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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”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an approved electronic platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (but the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Administrative Agent as the assignee Lender shall be deemed to have acquired the Erroneous Payment Deficiency Assignment, (C) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender, (D) the Administrative Agent and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. (ii) The Administrative Agent may, in its discretion, sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Administrative Agent on or with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that 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 shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender, L/C Issuer or Secured Party, to the rights and interests of such Lender, L/C Issuer or Secured Party, as the case may be) under the Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Loan Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to the Administrative Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; provided that this Section 9.09(e) shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower relative to the amount (and/or
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timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any 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 the Borrower for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, 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 Payment received, including, without limitation, any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 9.09 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender or L/C Issuer, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
Article 10
MISCELLANEOUS
SECTION 10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless (x) in the case of any amendment necessary to implement the terms of any Additional Term Loans or Additional Revolving Credit Loans, as applicable, in accordance with the terms hereof, in writing signed by the Borrower, the Administrative Agent and the relevant Additional Term Lenders or Additional Revolving Credit Lenders, as applicable, and (y) in the case of any other amendment, in writing signed by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and the Borrower or the applicable Loan Party, as the case may be, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that no such amendment, waiver or consent shall:
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(a)extend or increase the Commitment of any Lender without the written consent of each Lender directly affected thereby (it being understood that a waiver of any condition precedent set forth in Section 4.01 or Section 4.02, or the waiver of any Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute an extension or increase of any Commitment of any Lender);
(b)postpone any date scheduled for any payment of principal or interest under Section 2.07 or Section 2.08 or fees under Section 2.03(i) or Section 2.09(a), without the written consent of each Lender directly affected thereby, it being understood that the waiver of any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest;
(c)reduce or forgive the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iii) of the second proviso to this Section 10.01) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby, it being understood that any change to the definition of Senior Secured Net Leverage Ratio or in the component definitions thereof shall not constitute a reduction in any rate of interest; provided that only the consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest at the Default Rate;
(d)change any provision of this Section 10.01 or the definition of “Required Lenders” without the written consent of each Lender directly affected thereby;
(e)change the definition of “Pro Rata Share,” Section 2.12(a), Section 2.13 or Section 8.03 in any manner that would alter the pro rata sharing of payments or other amounts required thereby without the written consent of each Lender affected thereby; provided that the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making such determination;
(f)release all or substantially all of the Collateral in any transaction or series of related transactions (it being understood that a transaction permitted under Section 7.05 shall not constitute the release of all or substantially all of the Collateral), without the written consent of each Lender; or
(g)other than in connection with a transaction permitted under Section 7.04 or Section 7.05, release any material Guarantor from its obligations under the Guaranty, without the written consent of each Lender;
and provided further that (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or any Letter of Credit Application relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of, or any fees or other amounts payable to, the Administrative Agent under this Agreement or any other Loan Document; (iv) Section 10.07(g) may not be amended, waived or otherwise modified without the consent of each Granting Lender all or any part of whose Loans are being funded by an SPC at the time of such amendment, waiver or other modification and (v) any amendment, waiver or consent in respect of Section 4.02 and Section 7.11 may be made only with the consent of the Required Revolving Credit
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Lenders (and no other Lenders shall have any rights to approve or disapprove any such amendment, waiver or consent). Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded from a vote of the Lenders hereunder requiring any consent of the Lenders).
Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, the Borrower (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Credit Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
Notwithstanding anything to the contrary contained in Section 10.01, in the event that the Borrower requests that this Agreement be modified or amended in a manner that would require the unanimous consent of all of the Lenders and such modification or amendment is agreed to by the Required Lenders, then with the consent of the Borrower and the Required Lenders, the Borrower and the Required Lenders shall be permitted to amend the Agreement without the consent of the Non-Consenting Lenders to provide for (a) the termination of the Commitment of each Non-Consenting Lender that is (x) a Revolving Credit Lender, (y) a Term Lender or (z) both, at the election of the Borrower, (b) the addition to this Agreement of one or more other financial institutions (each of which shall be an Eligible Assignee), or an increase in the Commitment of one or more of the Required Lenders (with the written consent thereof), so that the total Commitment after giving effect to such amendment shall be in the same amount as the total Commitment immediately before giving effect to such amendment, (c) if any Loans are outstanding at the time of such amendment, the making of such additional Loans by such new financial institutions or Required Lender or Lenders, as the case may be, as may be necessary to repay in full with accrued interest, at par, the outstanding Loans of the Non-Consenting Lenders immediately before giving effect to such amendment and (d) such other modifications to this Agreement as may be appropriate to effect the foregoing clauses (a), (b) and (c).
Further, notwithstanding anything to the contrary contained in Section 10.01, if at any time after the Closing Date, the Administrative Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature, in each case, in any provision of the Loan Documents, then the Administrative Agent and the Borrower shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof.
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SECTION 10.02 Notices and Other Communications; Facsimile Copies. (a) General. Unless otherwise expressly provided herein, all notices and other communications provided for hereunder or any other Loan Document shall be in writing (including by facsimile transmission). All such written notices shall be mailed, faxed or delivered to the applicable address, facsimile number or (subject to Section 10.02(c)) electronic mail address, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i)if to the Borrower, any Guarantor, the Administrative Agent, the L/C Issuer or the Swing Line Lender, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 10.02 or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties; and
(ii)if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender.
All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail, four (4) Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed; and (D) if delivered by electronic mail (which form of delivery is subject to the provisions of Section 10.02(c)), when delivered; provided that notices and other communications to the Administrative Agent, the L/C Issuer and the Swing Line Lender pursuant to Article 2 shall not be effective until actually received by such Person. In no event shall a voice mail message be effective as a notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents may be transmitted and/or signed by facsimile or other electronic transmission (e.g., portable document format (“pdf”)). The effectiveness of any such documents and signatures shall, subject to applicable Law, have the same force and effect as manually signed originals and shall be binding on all Loan Parties, the Agents and the Lenders. The Administrative Agent may also require that any such documents and signatures be confirmed by a manually signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any facsimile document or signature.
(c) Reliance by Agents and Lenders. The Administrative Agent and the Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify each Agent-Related Person and each Lender from all actual losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower in the absence of gross negligence, bad faith or willful misconduct.
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SECTION 10.03 No Waiver; Cumulative Remedies. No failure by any Lender or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document 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, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by Law.
SECTION 10.04 Attorney Costs, Expenses and Taxes. The Borrower agrees upon and following the Closing Date (a) to pay or reimburse the Administrative Agent for all reasonable out-of-pocket costs and expenses incurred in connection with the preparation, negotiation, syndication and execution of this Agreement and the other Loan Documents, and any amendment, waiver, consent or other modification of the provisions hereof and thereof, and the consummation and administration of the transactions contemplated hereby and thereby, including all Attorney Costs of one attorney for all Lenders and the Administrative Agent (which shall be Shearman & Sterling LLP) and such other local counsel in each foreign jurisdiction as agreed between the Administrative Agent and the Borrower, and (b) to pay or reimburse the Administrative Agent and each Lender for all reasonable out-of-pocket costs and expenses incurred in connection with the enforcement of any rights or remedies under this Agreement or the other Loan Documents (including all such costs and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief Law), including all Attorney Costs of counsel (which counsel shall be limited as provided in Section 10.05). The foregoing costs and expenses shall include all reasonable search, filing, recording, title insurance and appraisal charges and fees and taxes related thereto, and other reasonable out-of-pocket expenses incurred by any Agent. All amounts due under this Section 10.04 shall be paid promptly (but in any event within 30 days) following receipt by the Borrower or an invoice relating thereto setting forth such expenses in reasonable detail. The agreements in this Section 10.04 shall survive the termination of the Aggregate Commitments and repayment of all other Obligations. If any Loan Party fails to pay when due any costs, expenses or other amounts payable by it hereunder or under any Loan Document, such amount may be paid on behalf of such Loan Party by the Administrative Agent or any Lender, in its sole discretion.
SECTION 10.05 Indemnification by the Borrower. The Borrower shall indemnify and hold harmless each Agent-Related Person, each Arranger, each Lender and their respective Affiliates, directors, officers, members, partners, employees, counsel, agents, attorneys-in-fact, trustees and advisors (collectively the “Indemnitees”) from and against any and all liabilities, obligations, actual losses, actual damages, penalties, claims, demands, actions, judgments, suits, reasonable costs, reasonable expenses and reasonable disbursements (including Attorney Costs (which shall be limited to one (1) counsel to the Administrative Agent and the other Indemnitees (exclusive of one local counsel to the Administrative Agent and the other Indemnitees in each appropriate jurisdiction), unless (x) the interests of the Administrative Agent and the other Indemnitees are sufficiently divergent, in which case one (1) additional counsel may be appointed and (y) if the interests of any Indemnitee or group of Indemnitees (other than all of the other Indemnitees) are distinctly or disproportionately affected, one (1) additional counsel for such Indemnitee or group of Indemnitees in the case of clause (a) below)) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the syndication, execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the
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documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (c) any actual or alleged presence or release of Hazardous Materials on or from any property currently or formerly owned or operated by the Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is instituted by a third party or by the Borrower or any other Loan Party) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements (x) have been determined in the final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of any Indemnitee or any of its directors, officers or employees or a material breach of the Loan Documents by any Indemnitee or (y) arise from claims of any of the Lenders solely against one or more Lenders (and not by one or more Lenders against the Administrative Agent or one or more of the other Agents) or any of the Arrangers solely against one or more Arrangers that have not resulted from the action, inaction, participation or contribution of the Borrower or its Subsidiaries or other Affiliates or any of their respective officers, directors, stockholders, partners, members, employees, agents, representatives or advisors. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, shareholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid promptly (but in any event within thirty (30) days) after written demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Arranger or Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.
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SECTION 10.06 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to any Agent or any Lender, or any Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by such Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by any Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect.
SECTION 10.07 Successors and Assigns. (a) 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 Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of Section 10.07(b), (ii) by way of participation in accordance with the provisions of Section 10.07(d), (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 10.07(f) or Section 10.07(h), as the case may be, or (iv) to an SPC in accordance with the provisions of Section 10.07(g) (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 Section 10.07(d) and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) 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 (including for purposes of this Section 10.07(b), participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that (i) except 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 or an Affiliate of a Lender or an Approved Fund with respect to a Lender, 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 outstanding principal balance of the Loan of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent shall not be less than $2,500,000 or €2,500,000, in the case of any assignment in respect of the Revolving Credit Facility, or $1,000,000, in the case of any assignment in respect of any Term Loans; (ii) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund (but subject to clause (iv) below), each of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, so long as no Event of Default in respect of Section 8.01(a), Section 8.01(f) or Section 8.01(g)(i) has occurred and is continuing and except for assignments in connection with the exchange of Lenders’ interests pursuant to arrangements relating thereto among the Lenders following the date on which either any Event of Default referred to in Section 8.01(f) or Section 8.01(g)(i) shall have occurred and be continuing in respect of the Borrower or the Loans shall have been declared immediately due and payable pursuant to Section 8.02, the Borrower consents to such assignment (which consent shall not be unreasonably withheld or delayed, and provided that the Borrower shall be deemed to have consented to any such
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assignment unless the Borrower shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof); (iii) 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 Loans or the Commitment assigned, except that this clause (iii) shall not (x) apply to rights in respect of Swing Line Loans or (y) prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis; (iv) any assignment of a Revolving Credit Commitment must be approved by the Administrative Agent, the L/C Issuer and the Swing Line Lender (each such consent not to be unreasonably withheld or delayed); (v) the parties (other than the Borrower unless its consent to such assignment is required hereunder) to each assignment shall (A) execute and deliver to the Administrative Agent an Assignment and Assumption via an electronic settlement system acceptable to the Administrative Agent (which initially may be ClearPar, LLC) or (B) manually execute and deliver to the Administrative Agent an Assignment and Assumption; and (vi) the assigning Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent. Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 10.07(c), from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, 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 and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption 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 Section 3.01, Section 3.04, Section 3.05, Section 10.04 and Section 10.05 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, and the surrender by the assigning Lender of its Note, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this clause (b) 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 Section 10.07(d).
(c) The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption 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, L/C Obligations (specifying the Unreimbursed Amounts), L/C Borrowings and amounts due under Section 2.03, owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, absent manifest error, and the Borrower, the Agents 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, any Agent and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
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(d) Any Lender may at any time, without the consent of, or notice to, the Borrower, the Administrative Agent, any L/C Issuer or Swingline Lender sell participations to any Person (other than a natural person) (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 (including such Lender’s participations in L/C Obligations and/or Swing Line 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 Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. 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 the other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement or the other Loan Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that directly affects such Participant. Subject to Section 10.07(e), the Borrower agrees that each Participant shall be entitled to the benefits of Section 3.01, Section 3.04 and Section 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.07(b) and such Participant agrees to be bound by such Sections and Section 3.06. To the extent permitted by Law, each Participant also shall be entitled to the benefits of Section 10.09 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 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 stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e) A Participant shall not be entitled to receive any greater payment under Section 3.01, Section 3.04 or Section 3.05 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 and such Participant complies with Section 3.01, Section 3.06 and Section 10.15 as if such Participant were a Lender under Section 10.15. A Participant shall not be entitled to any of the benefits of Section 3.01 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.01, Section 3.06 and Section 10.15 as though it were a Lender.
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(f) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central bank having jurisdiction over such Lender; 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.
(g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower (an “SPC”) the option to provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. Each party hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrower under this Agreement (including its obligations under Section 3.01, Section 3.04 or Section 3.05), (ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, and (iii) the Granting Lender shall for all purposes, including the approval of any amendment, waiver or other modification of any provision of any Loan Document, remain the lender of record hereunder. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Notwithstanding anything to the contrary contained herein, any SPC may (i) with notice to, but without prior consent of the Borrower and the Administrative Agent, assign all or any portion of its right to receive payment with respect to any Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Loans to any rating agency, commercial paper dealer or provider of any surety or Guarantee or credit or liquidity enhancement to such SPC.
(h)Notwithstanding anything to the contrary contained herein, any Lender that is a Fund may, without the consent of or notice to the Administrative Agent or the Borrower, create a security interest in all or any portion of the Loans owing to it and the Note, if any, held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities; provided that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 10.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and, (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise (unless such trustee is an Eligible Assignee which has complied with the requirements of Section 10.07(b)).
(i)Notwithstanding anything to the contrary contained herein, Morgan Stanley may, upon thirty (30) days’ notice to the Borrower and the Lenders, resign as L/C Issuer and/or the Swing Line Lender; provided that on or prior to the expiration of such 30-day period with respect to Morgan Stanley’s resignation as L/C Issuer, Morgan Stanley shall have identified a successor L/C Issuer reasonably acceptable to the Borrower willing to accept its appointment as successor L/C Issuer. In the event of any such resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled to appoint from among the Lenders willing to accept such appointment a successor L/C Issuer or Swing Line Lender hereunder; provided that no failure by the Borrower to appoint any such successor shall affect the resignation of Morgan Stanley as L/C Issuer or Swing Line Lender, as the case may be, except as expressly provided above. If Morgan Stanley resigns as L/C Issuer, it shall retain all the rights and obligations of the L/C Issuer
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hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If Morgan Stanley resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c).
(j)Notwithstanding the foregoing or anything to the contrary set forth herein, any Lender may, at any time, without any consent, assign all or a portion of its rights and obligations under this Agreement (including Loans or Commitments) to the Loan Parties or any of their Subsidiaries (x) in accordance with Section 2.05(a)(iv) or (y) through open market purchases, in each case on a non-pro rata basis.
SECTION 10.08 Confidentiality. Each of the Agents and the Lenders agrees to maintain the confidentiality of the Information, except that Information may be disclosed (a) to it and its Affiliates, and its and such Affiliates’ directors, officers, members, partners, employees, trustees and agents, including accountants, legal counsel and other advisors (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); (b) to the extent requested by any regulatory authority; (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process; (provided that the Agent or Lender that discloses any Information pursuant to this clause (c) shall provide the Borrower prompt notice of such disclosure to the extent permitted by applicable Law); (d) to any other party to this Agreement; (e) subject to an agreement containing provisions no less restrictive than those of this Section 10.08 (or as may otherwise be reasonably acceptable to the Borrower), to any Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or Participant in, any of its rights or obligations under this Agreement; (f) with the written consent of the Borrower; (g) to the extent such Information becomes publicly available other than as a result of a breach of this Section 10.08; (h) to any state, Federal or foreign authority or examiner (including the National Association of Insurance Commissioners or any other similar organization) regulating any Lender; (i) to any rating agency when required by it (it being understood that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Information relating to the Loan Parties received by it from such Lender); (j) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder to the extent reasonably necessary in connection with such enforcement, (k) to any direct or indirect contractual counterparty in swap agreements or such contractual counterparty’s professional advisor (so long as such contractual counterparty or professional advisor to such contractual counterparty agrees to be bound by the provisions of this Section 10.08), (i) to the extent developed independently and without the use of the Information and (j) to the extent such Information is received from a third party that is not, to the knowledge of the disclosing Person, subject to confidentiality obligations to any Loan Party or any Affiliate of a Loan Party. In addition, the Agents and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to the Agents and the Lenders in connection with the administration and management of this Agreement, the other Loan Documents, the Commitments, and the Credit Extensions. For the purposes of this Section 10.08, “Information” means all information received from any Loan Party relating to any Loan Party or its business, other than any such information that is publicly available to any Agent or any Lender prior to disclosure by any Loan Party other than as a result of a breach of this Section 10.08.
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SECTION 10.09 Setoff. In addition to any rights and remedies of the Lenders provided by Law, upon the occurrence and during the continuance of any Event of Default, after obtaining the prior written consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed), each Lender is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by each of the Borrower (on its own behalf and on behalf of each Loan Party) to the fullest extent permitted by Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other Indebtedness at any time owing by, such Lender to or for the credit or the account of the respective Loan Parties against any and all Obligations owing to such Lender hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent and each Lender under this Section 10.09 are in addition to other rights and remedies (including, without limitation, other rights of setoff) that the Administrative Agent and such Lender may have. Notwithstanding anything herein or in any other Loan Document to the contrary, in no event shall the assets of any Foreign Subsidiary that is not a Loan Party constitute security, or shall the proceeds of such assets be available for, payment of the Obligations of the Borrower or any Domestic Subsidiary, it being understood that (a) the Equity Interests of any Foreign Subsidiary that is not a Loan Party do not constitute such an asset and (b) the provisions hereof shall not limit, reduce or otherwise diminish in any respect the Borrower’s obligations to make any mandatory prepayment pursuant to Section 2.05(b).
SECTION 10.10 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If any Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by an Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
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SECTION 10.11 Counterparts. This Agreement and each other Loan Document may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by telecopier of an executed counterpart of a signature page to this Agreement and each other Loan Document shall be effective as delivery of an original executed counterpart of this Agreement and such other Loan Document. The Agents may also require that any such documents and signatures delivered by telecopier be confirmed by a manually signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by telecopier.
SECTION 10.12 Integration. This Agreement, together with the other Loan Documents, comprises the complete and integrated agreement of the parties on the subject matter hereof and thereof and supersedes all prior agreements, written or oral, on such subject matter. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall control; provided that the inclusion of supplemental rights or remedies in favor of the Agents or the Lenders in any other Loan Document shall not be deemed a conflict with this Agreement. Each Loan Document was drafted with the joint participation of the respective parties thereto and shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning thereof.
SECTION 10.13 Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by each Agent and each Lender, regardless of any investigation made by any Agent or any Lender or on their behalf and notwithstanding that any Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation (other than contingent indemnification obligations to the extent not then due and payable or Letters of Credit that have been cash collateralized in a manner satisfactory to the applicable L/C Issuer) hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding except as set forth in Section 2.03(g).
SECTION 10.14 Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 10.15 Tax Forms. Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in paragraphs (a)(ii)(A), (ii)(B) and (ii)(D) of this Section) 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.
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(i)Without limiting the generality of the foregoing, any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or about the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), properly completed and executed copies of IRS Form W-9 (or successor form) certifying that such Lender is exempt from U.S. federal backup withholding tax;
(A)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(1)in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, properly completed and executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, (or successor form) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, properly completed and executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, (or successor form) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2)properly completed and executed copies of IRS Form W-8ECI (or successor form);
(3)in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code, (x) a certificate substantially in the form of Exhibit B-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) properly completed and executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable (or successor form); or
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(4)to the extent a Foreign Lender is not the beneficial owner, properly completed and executed copies of IRS Form W-8IMY (or successor form), accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, as applicable (or successor form), a U.S. Tax Compliance Certificate substantially in the form of Exhibit B-2 or Exhibit B-3, properly completed and executed copies of IRS Form W-9 (or successor form), and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit B-4 on behalf of each such direct and indirect partner;
(B)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), properly completed and executed copies of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(C)if a payment made to a Lender under any Loan 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 Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by Applicable Law and at such time or times reasonably requested by the Borrower 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 Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
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Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
SECTION 10.16 Process Agent. Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 10.02. In addition, each Loan Party not organized in the United States of America or a state thereof hereby irrevocably appoints C T Corporation System (the “Process Agent”) with an office on the date hereof at 111 Eighth Avenue, New York, New York 10011 in the United States, as its agent to receive on behalf of such Loan Party service of copies of the summons and complaint and any other process that may be served in any such action or proceeding. Such service may be made by mailing or delivering a copy of such process to such Loan Party in care of the Process Agent at the Process Agent’s above address, and such Loan Party hereby irrevocably authorizes and directs the Process Agent to receive such service on its behalf. As an alternative method of service, each Loan Party not organized in the United States of America or a state thereof also irrevocably consents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to such Loan Party at its address specified in Section 10.02 (such service to be effective seven days after mailing thereof). Each Loan Party not organized in the United States of America or a state thereof covenants and agrees that it shall take any and all reasonable action, including the execution and filing of any and all documents, that may be necessary to continue the designation of the Process Agent above in full force and effect, and to cause the Process Agent to continue to act as such. Nothing in this Section 10.16 shall affect the right of any Lender or the Administrative Agent to serve legal process in any other manner permitted by applicable law or affect the right of any Lender or the Administrative Agent to bring any suit, action or proceeding against each Loan Party or its property in the courts of other jurisdictions.
SECTION 10.17 GOVERNING LAW. (a) THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, EACH AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, EACH AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.
SECTION 10.18 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING,
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AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 10.18 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
SECTION 10.19 Binding Effect. This Agreement shall become effective when it shall have been executed by each Original Borrower and the Administrative Agent shall have been notified by each Lender, Swing Line Lender and the L/C Issuer that each such Lender, Swing Line Lender and the L/C Issuer has executed it and the conditions set forth in Section 4.01 shall have been satisfied or waived, and thereafter shall be binding upon and inure to the benefit of each Original Borrower, the Borrower, each Agent and each Lender and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders except as permitted by Section 7.04.
SECTION 10.20 USA Patriot Act Notice. Each Lender that is subject to the Patriot Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower and the Guarantors that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Borrower and each Guarantor, which information includes the name and address of the Borrower and each Guarantor and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower and each Guarantor in accordance with the Act.
SECTION 10.21 Supplemental Obligations. In order to provide for the creation and enforcement of security interests in Collateral under certain Foreign Security Agreements securing all of the Secured Obligations, each of the parties hereto hereby agrees as follows:
(a)The Borrower hereby irrevocably and unconditionally agrees and covenants with the Administrative Agent to pay directly to the Administrative Agent, as a creditor in its own right and not in its capacity as Administrative Agent, on the Administrative Agent’s first demand, amounts equal to, and in the currency of, the Secured Obligations as and when such amounts become due and payable in accordance with the terms and conditions of any of the Loan Documents (the obligations of the Borrower under this Section 10.21(a), the “Supplemental Obligations”).
(b)The Borrower and the Administrative Agent further agree and acknowledge that (i) the Supplemental Obligations are separate and independent from and without prejudice to the Secured Obligations under the Loan Documents and (ii) the Administrative Agent’s right to receive payment of the Supplemental Obligations represents a separate and independent claim from the claims of the Lenders to receive payments in respect of the Secured Obligations; provided that the aggregate amount at any time owing in respect of the Supplemental Obligations shall not exceed the aggregate amount then owing under the Secured Obligations.
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(c)Any amount unconditionally and irrevocably paid by the Borrower in satisfaction of the Secured Obligations pursuant to the Loan Documents shall equally reduce the aggregate amount due under the Supplemental Obligations in a like amount, and any amount unconditionally and irrevocably received or applied by any of the Lenders in satisfaction of the Secured Obligations, shall equally reduce the Supplemental Obligations.
(d)If, after enforcement of the rights of the Collateral Agent and the Secured Parties under the Collateral Documents, there are insufficient proceeds to satisfy and discharge the Supplemental Obligations in full, the unpaid balance of the Supplemental Obligations shall then cease to exist, without prejudice, however, to (i) any other Obligations of the Borrower or any other Loan Party under any of the Loan Documents and (ii) any remedies of the Agents or the Lenders or any one of them under the Loan Documents.
(e)For the avoidance of doubt, this Section 10.21 shall not (i) be deemed to constitute a commitment of the Administrative Agent to make any advances or otherwise extend credit under or in respect of the Supplemental Obligations or otherwise and (ii) create any duties or obligations on the part of the Administrative Agent other than to hold the Supplemental Obligations.
SECTION 10.22 Affiliate Activities. The Borrower acknowledges that each Agent, each Arranger and each Lender (and each of their respective Affiliates) is a full service securities firm engaged, either directly or through Affiliates, in various activities, including securities trading, investment banking and financial advisory, investment management, principal investment, hedging, financing and brokerage activities and financial planning and benefits counseling for both companies and individuals. In the ordinary course of these activities, it may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and/or financial instruments (including bank loans) for its own account and for the accounts of its customers and may at any time hold long and short positions in such securities and/or instruments. Such investment and other activities may involve securities and instruments of the Borrower and its Affiliates, as well as of other entities and Persons and their Affiliates which may (i) be involved in transactions arising from or relating to the engagement contemplated hereby and by the other Loan Documents, (ii) be customers or competitors of the Borrower and its Affiliates, or (iii) have other relationships with the Borrower and its Affiliates. In addition, such Agents, Arrangers and Lenders and each of their respective Affiliates may provide investment banking, underwriting and financial advisory services to such other entities and Persons. Such Agents, Arrangers and Lenders and each of their respective Affiliates may also co-invest with, make direct investments in, and invest or co-invest client monies in or with funds or other investment vehicles managed by other parties, and such funds or other investment vehicles may trade or make investments in securities of the Borrower and its Affiliates or such other entities. The transactions contemplated by this Agreement and by the other Loan Documents may have a direct or indirect impact on the investments, securities or instruments referred to in this paragraph.
SECTION 10.23 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and acknowledges and agrees that it has informed its other Affiliates, that: (i)(A) no fiduciary, advisory or agency relationship between the Borrower, STBV and its Subsidiaries and any Agent, any Arranger or any Lender is intended to be or has been created in respect of any of the transactions contemplated hereby and by the other Loan Documents, irrespective of whether any Agent, any Arranger or any Lender has advised or is advising any of the Borrower, STBV and its Subsidiaries on other matters, (B) the arranging and other services regarding this Agreement provided by the Agents, the Arrangers and the Lenders are arm’s-
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length commercial transactions between the Borrower, STBV and its Subsidiaries, on the one hand, and the Agents, the Arrangers and the Lenders, on the other hand, (C) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (D) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Agents, the Arrangers and the Lenders each is and has been acting solely as a principal and, except as may otherwise be expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any other Person and (B) neither any Agent nor any Arranger nor any Lender has any obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Agents, the Arrangers and the Lenders and each of their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and neither any Agent nor any Arranger nor any Lender has any obligation to disclose any of such interests and transactions to the Borrower or any of its Affiliates. To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against the Agents, the Arrangers and the Lenders with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
SECTION 10.24 Judgment Currency. The obligations of the Borrower hereunder and under the other Loan Documents to make payments in Dollars, in Euros or in Sterling, as the case may be (the “Obligation Currency”), shall not be discharged or satisfied by any tender or recovery pursuant to any judgment expressed in or converted into any currency other than the Obligation Currency, except to the extent that such tender or recovery results in the effective receipt by the Administrative Agent or a Lender of the full amount of the Obligation Currency expressed to be payable to the Administrative Agent or Lender under this Agreement or the other Loan Documents. If, for the purpose of obtaining or enforcing judgment against the Borrower or any other Loan Party in any court or in any jurisdiction, it becomes necessary to convert into or from any currency other than the Obligation Currency (such other currency being hereinafter referred to as the “Judgment Currency”) an amount due in the Obligation Currency, the conversion shall be made, at the equivalent in such Obligation Currency of such amount (determined by the Administrative Agent pursuant to Section 1.08 using the applicable Exchange Rate with respect to such Obligation currency), in each case, as of the date immediately preceding the day on which the judgment is given (such Business Day being hereinafter referred to as the “Judgment Currency Conversion Date”).
If there is a change in the rate of exchange prevailing between the Judgment Currency Conversion Date and the date of actual payment of the amount due, the Borrower covenants and agrees to pay, or cause to be paid, such additional amounts, if any (but in any event not a lesser amount), as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the rate of exchange prevailing on the date of payment, will produce the amount of the Obligation Currency which could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial award at the rate of exchange prevailing on the Judgment Currency Conversion Date.
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For purposes of determining the Dollar Amount, such amounts shall include any premium and costs payable in connection with the purchase of the Obligation Currency.
SECTION 10.25 Release of Guarantors.
(a)The Lenders hereby agree to the release and termination of (a) all of the obligations, liabilities and indebtedness of Sensata Technologies (Korea) Limited under this Agreement and the other Loan Documents (including, without limitation, all of the Foreign Security Agreements executed by Sensata Technologies (Korea) Limited) and (b) all of the Liens and security interests of the Administrative Agent, the Collateral Agent and the Lenders in any and all of the property of Sensata Technologies (Korea) Limited. In connection with any release pursuant to this Section 10.25(a), the Administrative Agent and the Collateral Agent shall execute and deliver to Sensata Technologies (Korea) Limited all documents that Sensata Technologies (Korea) Limited shall reasonably request to evidence such release, including, without limitation, the termination of any Uniform Commercial Code financing statements naming Sensata Technologies (Korea) Limited as a debtor. Notwithstanding anything to the contrary contained herein, each of Sensor-Nite N.V., a Belgium company, and Sensor-Nite Industrial OOD, a Bulgarian company, will be added as a Foreign Guarantor within 90 days after the First Amendment Effective Date (as such time period may be extended in the sole discretion of the Administrative Agent); provided that, for the avoidance of doubt, until the expiration of such 90 day period (or such extended period), any failure to comply with the requirement to designate Foreign Subsidiaries contained in the first proviso of the definition of Material Foreign Subsidiary that results from the release contemplated by this Section 10.25 will not result in a violation of such requirement.
(b)As of the Tenth Amendment Effective Date, the Administrative Agent, the Collateral Agent and the Lenders hereby release and terminate (a) all of the obligations, liabilities and indebtedness of the Original US Borrower and each Subsidiary of STBV that is organized under the laws of Belgium, France, Ireland, Malaysia or Mexico and that, prior to the Tenth Amendment Effective Date, was a Foreign Guarantor (the Original US Borrower and such Subsidiaries, each a “Released Guarantor” and, collectively, the “Released Guarantors”) or otherwise obligated under this Agreement and the other Loan Documents (including, without limitation, the release of each Released Guarantor from all of its obligations under any Security Agreements or Collateral Documents executed by such Released Guarantor), (b) all of the Liens and security interests of the Administrative Agent, the Collateral Agent and/or the Lenders in any and all of the property of each Released Guarantor. In connection with any release pursuant to this Section 10.25(b), the Administrative Agent and the Collateral Agent shall, at the Borrower’s expense, promptly execute and deliver to each Released Guarantor and/or file with any relevant governmental authority all documents that such Released Guarantor shall reasonably request to evidence or effect such release under the laws of the countries listed above, the United States or any other relevant jurisdiction, including, without limitation, the termination of any Uniform Commercial Code financing statements, intellectual property security interest filings or other collateral filings, registrations or similar items naming such Released Guarantor as a debtor, and (c) the BV Guaranty (it being understood and agreed that the release and termination of the BV Guaranty shall not release STBV from its obligations as a Guarantor pursuant to the Foreign Guaranty or otherwise affect its other obligations under any other Loan Document).
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(c)As of the Eleventh Amendment Effective Date, the Administrative Agent, the Collateral Agent and the Revolving Credit Lenders hereby agree that the Guarantees by the Specified Foreign Guarantors of the Specified RCF Obligations under the Foreign Guaranty, the Foreign Security Documents and the other Loan Documents are hereby terminated and that the Liens and security interests of the Administrative Agent, the Collateral Agent and/or the Revolving Credit Lenders granted solely in respect of the Specified RCF Obligations under any of the foregoing Loan Documents are hereby terminated (it being understood and agreed that such termination and release with respect to the Specified RCF Obligations shall not release the Specified Foreign Guarantors from their other obligations as Guarantors pursuant to the Foreign Guaranty or otherwise affect their other obligations under any other Loan Document), and the Administrative Agent, the Collateral Agent and the Revolving Credit Lenders agree to amend the Foreign Guaranty, the Foreign Security Documents and the other Loan Documents as necessary to exclude or terminate such released obligations and Liens. The Administrative Agent and Collateral Agent shall (and the Revolving Credit Lenders hereby authorize the Administrative Agent and Collateral Agent to) execute and deliver any instruments, documents and agreements necessary to evidence, effect or confirm the release provided in this Section 10.25(c); provided that such release shall be without recourse to or warranty by the Administrative Agent or Collateral Agent, other than as to the authority of the Administrative Agent or Collateral Agent to execute and deliver any such document or instrument. The Borrower agrees to pay all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent or the Collateral Agent (and their respective representatives) in connection with taking such actions. In connection with any release pursuant to this Section 10.25(c), the Administrative Agent and the Collateral Agent shall, at the Borrower’s expense, promptly execute and deliver to each Specific Foreign Guarantor and/or file with any relevant governmental authority all documents that such Specified Foreign Guarantor shall reasonably request to evidence or effect such release under the laws of any relevant jurisdiction. The Borrower agrees that if (i) a Term Loan Facility Refinancing is consummated which includes a Guarantee by the Specified Foreign Guarantors of, and/or a grant of Liens and security interests by the Specified Foreign Guarantors to secure, the obligations in respect of the term loans thereunder, (ii) the Maturity Date for the Tenth Amendment Term Loans is extended and in such transaction the Guarantee by the Specified Foreign Guarantors of the Obligations under the Term Loan Facility and the Liens and security granted in respect of the Obligations under the Term Loan Facility are not terminated or (iii) Additional Term Commitments or any Indebtedness in the form of a term loan facility is incurred which includes a Guarantee by the Specified Foreign Guarantors of, and/or a grant of Liens and security interests by the Specified Foreign Guarantors to secure, the obligations in respect of the term loans thereunder (each event in the foregoing clauses (i)-(iii), a “Specified RCF Obligations Reinstatement Event”), the Borrower shall promptly (or within such time period as may be agreed by the Administrative Agent) take any or all actions to cause each Specified Foreign Guarantor to amend the Foreign Guaranty, each Foreign Security Agreement and any other Collateral Document, in form and substance satisfactory to the Administrative Agent and the Collateral Agent, to Guarantee the Specified RCF Obligations and to grant a Lien and security interest to the Administrative Agent and/or the Collateral Agent for the benefit of the Revolving Credit Lenders with respect to the Specified RCF Obligations.
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(d)As of the Eleventh Amendment Effective Date, the Administrative Agent, the Collateral Agent and the Lenders hereby release and terminate (a) all of the obligations, liabilities and indebtedness of Sensata Technologies Bermuda Ltd. (the “Released Bermuda Guarantor”) under this Agreement and the other Loan Documents (including, without limitation, the release of the Released Bermuda Guarantor from all of its obligations under any Security Agreements or Collateral Documents), (b) all of the Liens and security interests of the Administrative Agent, the Collateral Agent and/or the Lenders in any and all of the property of the Released Bermuda Guarantor and (c) that certain Share Charge, dated as of May 8, 2019, in respect of the shares in the capital of Sensata Technologies Bermuda Ltd. made between ST Schrader Holding Company UK Limited as charger and Morgan Stanley Senior Funding, Inc. as chargee (as the same may have been modified, amended, supplement and varied from time to time); provided that such release and termination shall be conditioned upon the Administrative Agent’s receipt of a certificate of the Borrower, executed on behalf of the Borrower by a Responsible Officer of the Borrower (and in the form approved by the Administrative Agent prior to the Eleventh Amendment Effective Date), on which the Administrative Agent is entitled to rely, certifying that the Released Bermuda Guarantor (i) contributed less than 1.0% of the Consolidated EBITDA of STBV for the Test Period most recently ended on or prior to the Eleventh Amendment Effective Date and (ii) had consolidated assets representing less than 1.0% of the total consolidated assets of STBV on the last day of the Test Period ended on or prior to the Eleventh Amendment Effective Date. In connection with any release pursuant to this Section 10.25(d), the Administrative Agent and the Collateral Agent shall, at the Borrower’s expense, promptly execute and deliver to the Released Bermuda Guarantor or ST Schrader Holding Company UK Limited, as applicable, and/or file with any relevant governmental authority all documents that such Released Bermuda Guarantor or ST Schrader Holding Company UK Limited, as applicable, shall reasonably request to evidence or effect such release under the laws of Bermuda, the United States or any other relevant jurisdiction, including, without limitation, the termination of any Uniform Commercial Code financing statements, intellectual property security interest filings or other collateral filings, registrations or similar items naming such Released Bermuda Guarantor as a debtor, and shall return all possessory collateral (including any Equity Interests certificates, promissory notes or other instruments) in their possession.
SECTION 10.26 Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among the parties hereto, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan 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;
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(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 Loan 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.
SECTION 10.27 Lender Representations.
(a)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 its Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan 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 in connection with the Loans, the Letters of Credit or the Commitments,
(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 Letters of Credit, 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 Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, 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 Letters of Credit, the Commitments and this Agreement, or
AMERICAS/2023410772.1 2023410772.9 208 Credit Agreement
(iv)such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender to the effect that the Lender’s entry into the Loans, the Letters of Credit, the Commitments and the Agreement is not a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code.
(b)In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in 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 its Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that neither the Administrative Agent nor any of its Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto).
SECTION 10.28 Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree 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 thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States). In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights 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 U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support 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 U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
AMERICAS/2023410772.1 2023410772.9 209 Credit Agreement
SECTION 10.29 Assignment of Original Borrowers. Effective as of the Tenth Amendment Effective Date, the Original Borrowers hereby assign to the Borrower, and the Borrower hereby assumes, all of the Original Borrowers’ rights and obligations as borrowers under this Agreement and each other Loan Document. In furtherance of the foregoing, the Original Borrowers and the Borrower agree that each Letter of Credit originally issued to an Original Borrower shall be deemed for all purposes of the Loan Documents to be a Letter of Credit issued hereunder, and the Borrower hereby assumes all obligations with respect thereto.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
AMERICAS/2023410772.1 2023410772.9 210 Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
SENSATA TECHNOLOGIES B.V.,
as BV Borrower
By:
Name:
Title:
SENSATA TECHNOLOGIES FINANCE COMPANY, LLC,
as US Borrower
By:
Name:
Title:
SENSATA TECHNOLOGIES INTERMEDIATE HOLDINGS B.V.,
as Parent
By:
Name:
Title:
MORGAN STANLEY SENIOR FUNDING, INC.,
individually as an Initial Lender and as Administrative Agent, Initial L/C Issuer and Initial Swing Line Lender
By:
Name:
Title:
AMERICAS/2023410772.12023410772.9 1 Credit Agreement
Annex A-1
Exhibit A
Americas/2023410934.5 Amendment No. 12 to Credit Agreement
EXHIBIT A
FORM OF
COMMITTED LOAN NOTICE
MORGAN STANLEY SENIOR FUNDING, INC. (“Morgan Stanley”),
as Administrative Agent
under the Credit Agreement
referred to below
One Pierrepont Plaza, 7th Floor
300 Cadman Plaza West
Brooklyn, NY 11201 [ ], 20__
Attention: James Park
Ladies and Gentlemen:
The undersigned, SENSATA TECHNOLOGIES, INC., a Delaware corporation (the “Borrower”), refers to the Credit Agreement dated as of May 12, 2011 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined) among the Borrower, SENSATA TECHNOLOGIES FINANCE COMPANY, LLC, a Delaware limited liability company, as Original US Borrower, SENSATA TECHNOLOGIES B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, as Original BV Borrower, SENSATA TECHNOLOGIES INTERMEDIATE HOLDING B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, as Parent, the Lenders, the Initial L/C Issuer, the Initial Swing Line Lender and Morgan Stanley as Administrative Agent, and hereby gives you notice, irrevocably, pursuant to Section 2.02(a) of the Credit Agreement that the undersigned hereby requests a [Borrowing] [a conversion] [a continuation] (the “Proposed Action”) under the Credit Agreement, and in that connection sets forth below the information relating to such Proposed Action as required by Section 2.02(a) of the Credit Agreement:
(i)The Proposed Action is a 3[Term Borrowing] [Dollar Revolving Credit Borrowing][Euro Revolving Credit Borrowing] [Sterling Revolving Credit Borrowing] [conversion of [Term Loans] [Dollar Revolving Credit Loans] from [Base Rate] [Term SOFR] Loans to [Base Rate] [Term SOFR] Loans]] [a continuation of a [Term SOFR] Loan].
(ii)The Business Day of the Proposed Action is _______, 20[__].
3 Insert only one choice in brackets.
Americas/2023410934.5 Amendment No. 12 to Credit Agreement
(iii)The principal amount to be [borrowed] [converted] [continued] pursuant to the Proposed Action is [$__________][€__________][£__________].
(iv)4[The Type of Loan comprising the Proposed Action is a [Base Rate Loan] [Term SOFR Loan].]
(v)5[The initial Interest Period for each [EURIBOR] [Term SOFR] Loan made as part of the Proposed Action is [one week][____ month[s]].]
(vi)The account of the Borrower to be credited with the proceeds of the Proposed Action is [______________________].
6The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Action:
(a)The representations and warranties of the Borrower and each other Loan Party contained in Article 5 of the Credit Agreement or in any other Loan Document shall be true and correct in all material respects on and as of the date of the Proposed Action, except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date and (ii) that for purposes of this Committed Loan Notice, the representations and warranties contained in Section 5.05(a) and Section 5.05(b) of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 6.01(a) and Section 6.01(b) of the Credit Agreement and, in the case of the financial statements furnished pursuant to Section 6.01(b) of the Credit Agreement, the representations contained in Section 5.05(a) of the Credit Agreement, as modified by this clause (ii), shall be qualified by the statement that such financial statements are subject to the absence of footnotes and year-end audit adjustments.
(b)No Default exists, or would result, from such borrowing or from the application of proceeds therefrom.
(c)The conditions specified in Sections 4.02(a) and 4.02(b) of the Credit Agreement have been satisfied on and as of the date of the Proposed Action.
Delivery of an executed counterpart of this Committed Loan Notice by facsimile shall be effective as delivery of an original executed counterpart of this Committed Loan Notice.
4 Insert only if the Proposed Action involves a Term Borrowing, a Dollar Revolving Credit Borrowing, or a conversion.
5 Insert only if the Proposed Action is a Borrowing involving a Term SOFR Loan or a EURIBOR Loan.
6 Do not use for any Committed Loan Notice requesting only a conversion of Loans from one Type to another or otherwise or for a continuation of Term SOFR Loans or EURIBOR Loans. In the case of the initial Credit Extension on the Closing Date, this section may be modified in form and substance reasonably satisfactory to the Administrative Agent.
Americas/2023410934.5 Amendment No. 12 to Credit Agreement
Very truly yours,
SENSATA TECHNOLOGIES, INC.
By ______________________________
Name:
Title:
Americas/2023410934.5 Amendment No. 12 to Credit Agreement
Subsidiaries of Sensata Technologies Holding plc
Exhibit 21.1
| | | | | | | | |
| Name | | Jurisdiction of Incorporation |
| Airpax Electronics (Shanghai) Co., Ltd. | | China |
| August Brazil Holding Company S.á.r.l. | | Luxembourg |
| August Lux Holding Company S.á.r.l. | | Luxembourg |
| August Lux UK Holding Company S.á.r.l. | | Luxembourg |
| August UK HoldCo Limited | | United Kingdom |
| BEI North America, LLC | | United States |
| BEI Sensors SAS | | France |
| CDI Netherlands B.V. | | The Netherlands |
| Control Devices, Inc. | | United States |
| Crydom SSR Limited | | United Kingdom |
| Crydom, Inc. | | United States |
| CurbSoft, LLC | | United States |
| Custom Sensors & Technologies de Mexico S.A. de C.V. | | Mexico |
| Custom Sensors & Technologies Inc. | | United States |
| Custom Sensors & Technologies Newco Ltd. | | United Kingdom |
| Custom Sensors & Technologies Transportation de Mexico S.A. de C.V. | | Mexico |
| Custom Sensors & Technologies US Corporation | | United States |
| Custom Sensors & Technologies US LLC | | United States |
| Cynergy 3 Components Fab Limited | | United Kingdom |
| Cynergy3 Components LLC | | United States |
| Cynergy3 Components Limited | | United Kingdom |
| Cynergy3 Limited | | United Kingdom |
| Cynergy3 Property Limited. | | United Kingdom |
| DP Acquisition Corporation | | United States |
| Dynapower Company LLC | | United States |
| Elastic M2M Inc | | United States |
| FlexProtect, LLC | | United States |
| FTCP Bermuda Ltd. | | Bermuda |
| Gigavac LLC | | United States |
| Impress Sensors & Systems Limited | | United Kingdom |
| Industrial Interface Limited | | United Kingdom |
| Kavlico Corporation | | United States |
| Lithium Balance A/S | | Denmark |
| Newall Electronics Inc. | | United States |
| Newall Measurement Systems Limited | | United Kingdom |
| Preco Electronics, LLC | | United States |
| Preco Electronics GmbH | | Germany |
| Schrader Electronics Limited | | Northern Ireland |
| Schrader International Brasil Ltda. | | Brazil |
| Schrader International GmbH | | Germany |
| Schrader, LLC | | United States |
| Sendyne Corp | | United States |
| Sensata Churod Technologies (Wuhu) Co., Ltd. | | China |
| Sensata Canada, Inc. | | Canada |
| Sensata Germany GmbH | | Germany |
| Sensata Malta Holding Ltd. | | Malta |
| Sensata Sofia HoldCo, Inc. | | United States |
| Sensata Technologies (Europe) Limited | | United Kingdom |
| Sensata Technologies Automotive Sensors (Shanghai) Co., Ltd. | | China |
| Sensata Technologies B.V. | | The Netherlands |
| Sensata Technologies Baoying Co., Ltd. | | China |
Subsidiaries of Sensata Technologies Holding plc
| | | | | | | | |
| Name | | Jurisdiction of Incorporation |
| Sensata Technologies Bulgaria EOOD | | Bulgaria |
| Sensata Technologies Changzhou Co., Ltd. | | China |
| Sensata Technologies China Co., Ltd. | | China |
| Sensata Technologies de México, S. de R.L. de C.V. | | Mexico |
| Sensata Technologies Dominicana, S.r.L. | | Dominican Republic |
| Sensata Technologies Finance Company, LLC | | United States |
| Sensata Technologies France SAS | | France |
| Sensata Technologies Germany GmbH | | Germany |
| Sensata Technologies GmbH | | Germany |
| Sensata Technologies Holding Company Mexico, B.V. | | The Netherlands |
| Sensata Technologies Holding Company UK | | United Kingdom |
| Sensata Technologies Holland B.V. | | The Netherlands |
| Sensata Technologies India Private Limited | | India |
| Sensata Technologies Intermediate Holding B.V. | | The Netherlands |
| Sensata Technologies Intermediate UK Limited | | United Kingdom |
| Sensata Technologies Italia S.r.L. | | Italy |
| Sensata Technologies Japan Limited | | Japan |
| Sensata Technologies Korea Limited | | Korea |
| Sensata Technologies Limited | | United Kingdom |
| Sensata Technologies Malaysia Sdn. Bhd. | | Malaysia |
| Sensata Technologies Malta Ltd | | Malta |
| Sensata Technologies Management China Co., Ltd. | | China |
| Sensata Technologies Mex Distribution, S.A. de C.V. | | Mexico |
| Sensata Technologies Poland Sp, z.o.o | | Poland |
| Sensata Technologies Sensores e Controles do Brasil Ltda. | | Brazil |
| Sensata Technologies Sensors (Changzhou) Co., Ltd | | China |
| Sensata Technologies Singapore Pte. Ltd. | | Singapore |
| Sensata Technologies Spain, S.L. | | Spain |
| Sensata Technologies Taiwan Co., Ltd. | | Taiwan |
| Sensata Technologies UK Financing Co., plc | | United Kingdom |
| Sensata Technologies, Inc. | | United States |
| Sensor-Nite N.V. | | Belgium |
| SmartWitness BG LTD | | Bulgaria |
| SmartWitness EMEA Limited | | United Kingdom |
| SmartWitness Holdings, Inc. | | United States |
| SmartWitness USA LLC | | United States |
| Spear Power Systems AS | | Norway |
| Spear Power Systems BV | | Belgium |
| Spear Power Systems, Inc. | | United States |
| Spear Power Systems PTE Ltd | | Singapore |
| ST August Lux Company S.á.r.l. | | Luxembourg |
| ST August Lux Intermediate Holdco S.á.r.l. | | Luxembourg |
| ST Schrader Holding Company UK Limited | | United Kingdom |
| STI Holdco, Inc. | | United States |
| Swindon Silicon Systems Limited | | United Kingdom |
| UAB "Data Mobile" | | Lithuania |
| UAB "Xirgo Global" | | Lithuania |
| Wabash Technologies Limited | | United Kingdom |
| Wabash Technologies Mexico S. de R.L. de C.V. | | Mexico |
| Xirgo Holdings, Inc. | | United States |
| Xirgo Technologies Intermediate Holdings, LLC | | United States |
| Xirgo Technologies, LLC | | United States |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the following Registration Statements:
(1) Registration Statement (Form S-4 No. 333-220735) pertaining to Sensata Technologies Holding plc;
(2) Post-Effective Amendment No. 1 to the Registration Statement (Form S-8 No. 333-166336) pertaining to the Sensata Technologies Holding plc Second Amended and Restated 2006 Management Option Plan and the Sensata Technologies Holding plc First Amended and Restated 2010 Equity Incentive Plan;
(3) Post-Effective Amendment No. 1 to the Registration Statement (Form S-8 No. 333-191999) pertaining to the Sensata Technologies Holding plc First Amended and Restated 2010 Equity Incentive Plan; and
(4) Registration Statement (Form S-8 No. 333-258224) pertaining to the Sensata Technologies Holding plc 2021 Equity Incentive Plan;
of our reports dated February 13, 2023, with respect to the consolidated financial statements and schedules of Sensata Technologies Holding plc, and the effectiveness of internal control over financial reporting of Sensata Technologies Holding plc, included in this Annual Report (Form 10-K) of Sensata Technologies Holding plc for the year ended December 31, 2022.
Boston, Massachusetts
February 13, 2023
Exhibit 31.1
Certification
I, Jeff Cote, certify that:
1.I have reviewed this Annual Report on Form 10-K of Sensata Technologies Holding plc;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| | | | | | | | |
| Date: | February 13, 2023 | |
| | /s/ Jeff Cote |
| | Jeff Cote |
| | Chief Executive Officer and President |
Exhibit 31.2
Certification
I, Paul Vasington, certify that:
1.I have reviewed this Annual Report on Form 10-K of Sensata Technologies Holding plc;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| | | | | | | | |
| Date: | February 13, 2023 | |
| | /s/ PAUL VASINGTON |
| | Paul Vasington |
| | Executive Vice President and Chief Financial Officer |
Exhibit 31.3
Certification
I, Maria Freve, certify that:
1.I have reviewed this Annual Report on Form 10-K of Sensata Technologies Holding plc;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| | | | | | | | |
| Date: | February 13, 2023 | |
| | /s/ MARIA FREVE |
| | Maria Freve |
| | Vice President and Chief Accounting Officer |
Exhibit 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. 1350
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report on Form 10-K of Sensata Technologies Holding plc (the “Company”) for the year ended December 31, 2022, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), each of the undersigned chief executive officer, chief financial officer, and chief accounting officer of the Company, certifies, to the best knowledge and belief of the signatory, pursuant to 18 U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
1.The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Act of 1934; and
2.The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| | | | | |
| /s/ JEFF COTE |
| Jeff Cote |
| Chief Executive Officer and President |
| Date: | February 13, 2023 |
| |
| /s/ PAUL VASINGTON |
| Paul Vasington |
| Executive Vice President and Chief Financial Officer |
| Date: | February 13, 2023 |
| |
| /s/ MARIA FREVE |
| Maria Freve |
| Vice President and Chief Accounting Officer |
| Date: | February 13, 2023 |
| |