ECOLAB INC.

 

3.250% Notes due 2027

3.950% Notes due 2047

 

 

 

 

 

SEVENTH SUPPLEMENTAL INDENTURE

 

Dated as of November 27, 2017

 

to

 

Indenture dated as of January 12, 2015

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

 

Trustee

 

 

 

 

 

 

 

 

 

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This SEVENTH SUPPLEMENTAL INDENTURE (this “Seventh Supplemental Indenture”) dated as of November 27, 2017, is between ECOLAB INC., a Delaware corporation (the “Company”), and WELLS FARGO BANK, NATIONAL ASSOCIATION (the “Trustee”).

RECITALS

WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture, dated as of January 12, 2015 (the “Existing Indenture,” and, together with this Seventh Supplemental Indenture, the “Indenture”), providing for the issuance by the Company from time to time of its debt securities to be issued in one or more series;

WHEREAS, the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Existing Indenture and pursuant to appropriate resolutions of the Board of Directors, has duly determined to make, execute and deliver to the Trustee this Seventh Supplemental Indenture to the Existing Indenture in order to issue two new series of debt securities to be designated as the “3.250% Notes due 2027” (the “2027 Notes”) and the “3.950% Notes due 2047” (the “2047 Notes,” and together with the 2027 Notes, the “Notes”), and to set forth the terms that will be applicable thereto and the forms thereof;

WHEREAS, the Notes have been offered and sold pursuant to Rule 144A and Regulation S of the Securities Act of 1933, as amended (the “Securities Act”);

WHEREAS, the Company has duly determined to appoint Wells Fargo Bank, National Association as Trustee, Registrar and Paying Agent under the Indenture with respect to the Notes and Wells Fargo Bank, National Association is willing to accept such appointment with respect to the Notes;

WHEREAS, Sections 2.01, 3.01 and 13.01 and of the Existing Indenture provide, among other things, that the Company and the Trustee may, without the consent of Holders, enter into indentures supplemental to the Existing Indenture to provide for specific terms applicable to any series of notes and to add to the covenants of the Company for the benefit of the Holders of each series of notes (and if such covenants are to be for the benefit of less than all series of notes, stating that such covenants are expressly being included solely for the benefit of such series); and

WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee or any Authenticating Agent and issued upon the terms and subject to the conditions set forth hereinafter and in the Indenture against payment therefor, the valid, binding and legal obligations of the Company and to make this Seventh Supplemental Indenture a valid, binding and legal agreement of the Company, have been done.

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:

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ARTICLE I

 

APPLICATION OF SEVENTH SUPPLEMENTAL INDENTURE

AND CREATION OF NOTES

Section 1.01     Application of this Seventh Supplemental Indenture .

Notwithstanding any other provision of this Seventh Supplemental Indenture, pursuant to Section 13.01 of the Existing Indenture, the provisions of this Seventh Supplemental Indenture, including the covenants set forth herein, are expressly being included solely for the benefit of the Holders of the Notes.  The Notes constitute two separate series of notes as provided in Section 3.01 of the Existing Indenture.

Section 1.02     Designation and Amount of Notes .

The 2027 Notes shall be known and designated as the “3.250% Notes due 2027” and the  2047 Notes shall be known and designated as the “3.950% Notes due 2047.”  The Notes shall be unsecured and unsubordinated obligations of the Company.  The initial maximum aggregate principal amount of Notes that may be authenticated and delivered under this Seventh Supplemental Indenture shall not exceed $500,000,000 of the 2027 Notes and $700,000,000 of the 2047 Notes, of which $325,000,000 of the 2047 Notes will be issued on the date hereof and of which up to $375,000,000 of the 2047 Notes may be issued in exchange for the Company’s 5.500% Notes due 2041, in each case, except for Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of, Notes pursuant to Sections 3.04, 3.06, 3.07 and 4.06 of the Existing Indenture.  The Trustee shall authenticate and deliver the 2027 Notes and 2047 Notes upon receipt of an authentication order in accordance with Section 3.03 of the Existing Indenture specifying the date on which such Notes are to be authenticated, the amount of each series of Notes to be authenticated on such date and the aggregate principal amount of each series of Notes outstanding after giving effect to such authentication.  Notwithstanding the foregoing, the Company may from time to time, without giving notice to or seeking the consent of the Holders of the Notes of either series, issue debt securities having the same terms (except for the issue date, and, in some cases, the public offering price and the first Interest Payment Date) and ranking equally and ratably with the Notes of a series (“Additional Notes”).  All of the 2027 Notes issued under this Seventh Supplemental Indenture, including any Exchange Notes of such series issued in the Exchange Offer and any Additional Notes of such series, shall together constitute one series for purposes of the Existing Indenture and this Seventh Supplemental Indenture, including, without limitation, waivers, amendments, redemptions and offers to purchase. All of the 2047 Notes issued under this Seventh Supplemental Indenture, including any Exchange Notes of such series issued in the Exchange Offer and any Additional Notes of such series, shall together constitute one series for purposes of the Existing Indenture and this Seventh Supplemental Indenture, including, without limitation, waivers, amendments, redemptions and offers to purchase.

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Section 1.03     Terms; Denominations; Form of Security .

(a)       Subject to Article VI hereto, the Notes are issuable in fully registered form as Global Securities without coupons, in denominations of $2,000 or any amount in excess thereof which is an integral multiple of $1,000.  The 2027 Notes shall be substantially in the form of  Exhibit A hereto and the 2047 Notes shall be substantially in the form of Exhibit B hereto.  The Depository Trust Company (“DTC”) shall act as Depositary for the Notes.  For so long as DTC or its nominee is the registered holder of the Notes represented by a Global Security, DTC or such nominee will be considered the sole owner and holder of the Notes represented by such Global Security for all purposes under the Indenture and the Notes. Owners of beneficial interests in a Note represented by a Global Security will not be entitled to have any portion of such Notes represented by a Global Security registered in their names, will not be entitled to receive physical delivery of the Notes represented by a definitive certificate and will not be considered the owners or Holders of such Notes represented by a Global Security for any purposes under the Indenture or the Notes, unless:

(i)        DTC notifies the Company that it is unwilling or unable to continue as depositary for such Global Security or has ceased to be a clearing agency registered under the Exchange Act, and in either case, the Company thereupon fails to appoint a successor depositary within 90 days of receiving such notice;

(ii)       there shall have occurred and be continuing an Event of Default with respect to the Notes represented by such Global Security; or

(iii)      the Company determines not to have the Notes represented by a Global Security.

(b)       If any one or more of the conditions specified in the preceding Section 1.03(a) occurs, then upon surrender by DTC of the Global Securities, Individual Securities will be issued to each person that DTC identifies as the beneficial owner of the Notes represented by the Global Securities. Upon any such issuance, the Trustee shall register the Individual Securities in the name of the person or persons or the nominee of any of these persons and cause the same to be delivered to these persons. The Holder of any Notes represented by Individual Securities may transfer such Notes, subject to compliance with the provisions of the legend set forth on the applicable Individual Security, if any, by surrendering it at (1) the office or agency maintained by the Company for such purpose in the Borough of Manhattan, The City of New York, which initially will be the office of the Trustee or (2) the office of any transfer agent appointed by us for such purpose. Upon the transfer, exchange or replacement of Notes represented by Individual Securities bearing the legend, or upon specific request for removal of the legend on the applicable Individual Security, the Company will deliver only Individual Securities that bear such legend, or will refuse to remove such legend, as the case may be, unless there is delivered to the Company and the Trustee such satisfactory evidence, which may include an opinion of counsel, as may reasonably be required by the Company that neither the legend nor the restrictions on transfer set forth therein are required to ensure compliance with the provisions of the Securities Act.

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(c)       (i)         Forms of Notes.  The terms and provisions contained in the forms of Notes attached hereto as Exhibit A and Exhibit B shall constitute, and are hereby expressly made, a part of this Seventh Supplemental Indenture and the Company, by its execution and delivery of this Seventh Supplemental Indenture, expressly agrees to such terms and provisions and to be bound thereto.  Any of the Notes may have such letters, numbers or other marks of identification and such notations, legends and endorsements as the officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and are not inconsistent with the provisions of the Indenture (and which do not affect the rights, duties or immunities of the Trustee), or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Notes may be listed.

(ii)       Restricted Global Notes . Each of the 2027 Notes and the 2047 Notes are initially being offered and sold only (A) to Qualified Institutional Buyers in reliance on Rule 144A or (B) outside the United States, to persons other than “U.S. persons” as defined in Rule 902 under the Securities Act in offshore transactions in compliance with Regulation S. Each series of Notes shall be available initially only in book-entry form. The Notes will be issued in the form of one or more Restricted Global Notes. The Restricted Global Notes shall be deposited with, or on behalf of, The Depository Trust Company (“DTC”) and registered in its name or in the name of Cede & Co., its nominee. Beneficial interests in the Restricted Global Notes will be shown on, and transfers of beneficial interests in the Restricted Global Notes will be effected through, records maintained by DTC and its participants. With respect to each series of Notes, Notes initially offered and sold to QIBs in reliance on Rule 144A shall be issued in book-entry form and initially will be represented by one or more Rule 144A Global Notes, and Notes initially offered and sold outside the United States pursuant to Regulation S shall be issued in book-entry form and initially will be represented by one or more Regulation S Global Notes. Clearstream Banking, S.A. (“Clearstream”) and Euroclear Bank SA/NV (“Euroclear”) may hold beneficial interests in the Regulation S Global Notes on behalf of their participants through their respective depositories. Beneficial interests in a Regulation S Global Note may also be held through organizations other than Clearstream and Euroclear that are participants in DTC. The aggregate principal amount of each Restricted Global Note may from time to time be increased or decreased by adjustments made on the records of the Securities Custodian as hereinafter provided, subject in each case to compliance with the Applicable Procedures.

(iii)      Regulation S Global Notes .  With respect to each series of Notes, Notes offered and sold in reliance on Regulation S will be issued in book-entry form and initially will be represented by one or more Regulation S Temporary Global Notes; provided, at the applicable settlement date of the offering, only Rule 144A Global Notes will be issued. Notes represented by the Temporary Regulation S Global Notes will be registered in the name of Cede & Co., as registered owner and as nominee for DTC , for credit to the respective accounts of Euroclear and Clearstream.  Reasonably promptly after the end of the Restricted Period, which such date shall be notified to the Trustee in writing by the Company, upon receipt by the Trustee and the Company of a duly executed certificate certifying that the holder of the beneficial interest in the Regulation S Temporary Global Note is a Non-U.S. Person, substantially in the form of Exhibit F , from the Depository, beneficial interests in the Notes of a series represented by the Regulation S Temporary Global Notes will be exchangeable for beneficial interests in Notes of the same series represented by one or more Permanent Regulation S Global Notes and one or more

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Permanent Regulation S Global Notes, substantially in the form of Exhibit A or B , as appropriate, duly executed by the Company and authenticated by the Trustee as hereinafter provided, shall be deposited with the Trustee, as custodian for the Depository, and the Registrar shall reflect on its books and records the cancellation of the Regulation S Temporary Global Note and the issuance of the Permanent Regulation S Global Note. The Notes represented by the Permanent Regulation S Global Notes will be registered in the name of Cede & Co., as registered owner and as nominee for DTC. The aggregate principal amount of the Temporary Regulation S Global Note and 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 interests therein as hereinafter provided.

Section 1.04     Payment of Principal and Interest,

(a)       The Notes shall mature, and the principal of the Notes shall be due and payable in U.S. Dollars to the Holders thereof, together with all accrued and unpaid interest thereon, as follows: on December 1, 2027 for the 2027 Notes (the Stated Maturity of principal of the 2027 Notes) and on December 1, 2047 for the 2047 Notes (the Stated Maturity of principal of the 2047 Notes).

(b)       The 2027 Notes shall bear interest at 3.250% per annum and the 2047 Notes shall bear interest at 3.950% per annum, in each case from and including November 27, 2017, or from the most recent Interest Payment Date on which interest has been paid or provided for, until the principal thereof becomes due and payable, and on any overdue principal and (to the extent that payment of such interest is enforceable under applicable law) on any overdue installment of interest at the same rate per annum. Interest shall be calculated on the basis of a 360-day year comprised of twelve 30-day months. Interest on the Notes shall be payable semi-annually in arrears in U.S. Dollars on June 1 and December 1 of each year, commencing on June 1, 2018 (the Interest Payment Dates with respect to the Notes). Payments of interest shall be made to the Person in whose name a Note (or predecessor Note) is registered (which shall initially be the Depositary) at the close of business on May 15 or November 15, as the case may be, next preceding such Interest Payment Date (the Record Date with respect to the Notes).

(c)       Additional Interest with respect to the Notes shall be payable in accordance with the provisions and in the amounts set forth in the Registration Rights Agreement. For the avoidance of doubt, any references in the Indenture to “interest” payable with respect to the Notes shall include any Additional Interest, if any, payable pursuant to the Registration Rights Agreement, and any Additional Interest that accrues on a Note will be in addition to the stated interest that accrues on such Note.

(d)       For so long as the Notes are represented by one or more Global Securities, all payments of principal and interest shall be made by the Company through the Paying Agent by wire transfer of immediately available funds in U.S. Dollars to the Depositary or its nominee, as the case may be, as the registered owner of the Global Securities representing such Notes.  In the event that definitive Notes shall have been issued, all payments of principal and interest shall be made by the Company through the Paying Agent by wire transfer of immediately available funds in U.S. Dollars to the accounts of the registered Holders thereof; provided, that the Company may elect to make such payments at the office of the Paying Agent in The City of Minneapolis;

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and provided further, that the Company may at its option pay interest by check to the registered address of each Holder of a definitive Note.

(e)       The Notes shall trade in the Depositary’s Same-Day Funds Settlement System until Stated Maturity (or until they are subject to acceleration pursuant to Article VII of the Existing Indenture) and secondary market trading activity in the Notes may be required by the Depositary to settle in immediately available funds.

(f)       The Notes are subject to redemption by the Company in whole or in part in the manner described herein.

Section 1.05     Sinking Fund .

The Notes are not subject to any sinking fund.

Section 1.06     Defeasance and Covenant Defeasance .

The defeasance and covenant defeasance provisions of Article XI of the Existing Indenture will apply to the Notes.

Section 1.07     Tax Matters .

The Company will not pay additional amount on the Notes held by Non-U.S. Persons in respect of any tax, assessment or governmental change withheld or deducted.

ARTICLE II

 

DEFINITIONS

Section 2.01     Definitions .

(a)       All capitalized terms used herein and not otherwise defined below shall have the meanings ascribed thereto in the Existing Indenture.

(b)       The following terms for purposes of the Trust Indenture Act shall have the following meanings:

“indenture trustee” or “institutional trustee” shall mean the Trustee.

“indenture securities” means the Notes.

“indenture security holder” means a Holder of the Notes.

“indenture to be qualified” means this Seventh Supplemental Indenture.

(c)       The following are definitions used in this Seventh Supplemental Indenture and to the extent that a term is defined both herein and in the Existing Indenture, the definition in this Seventh Supplemental Indenture shall govern with respect to the Notes.

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“Additional Interest” means all additional interest then owing pursuant to Section 6 of the Registration Rights Agreement.  Unless the context indicates otherwise, all references to “interest” in this Seventh Supplemental Indenture or the Notes shall be deemed to include any Additional Interest to the extent then applicable.

“Attributable Debt” in respect of a Sale and Leaseback Transaction means, as of any particular time, the present value (discounted at the rate of interest implicit in the terms of the lease involved in the Sale and Leaseback Transaction, as determined in good faith by the Company) of the obligation of the lessee thereunder for net rental payments (excluding, however, any amounts required to be paid by such lessee, whether or not designated as rent or additional rent, on account of maintenance and repairs, services, insurance, taxes, assessments, water rates and similar charges or any amounts required to be paid by such lessee thereunder contingent upon monetary inflation or the amount of sales, maintenance and repairs, insurance, taxes, assessments, water rates or similar charges) during the remaining term of such lease (including any period for which such lease has been extended or may, at the option of the lessor, be extended).

“Below Investment Grade Rating Event” means the rating on the Notes is lowered by each of the Rating Agencies and the Notes are rated below Investment Grade by each of the Rating Agencies on any day within the 60-day period (which 60-day period will be extended so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies) after the earlier of (1) the occurrence of a Change of Control and (2) public notice of the occurrence of a Change of Control or the Company’s intention to effect a Change of Control; provided that a Below Investment Grade Rating Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for purposes of the definition of Change of Control Repurchase Event) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Trustee in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Rating Event).

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

(1)       the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the Company’s assets and those of its Subsidiaries, taken as a whole, to any person, other than the Company or one of its Subsidiaries;

(2)       the first day on which a majority of the members of the Board of Directors are not Continuing Directors; or

(3)       the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any person, other than the Company or one or more of its Wholly-Owned Subsidiaries, becomes the beneficial owner, directly

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or indirectly, of more than 50% of the then outstanding number of shares of the Company’s Voting Stock.

Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (1) the Company becomes a direct or indirect Wholly-Owned Subsidiary of a holding company and (2) (A) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Company’s Voting Stock immediately prior to that transaction or (B) immediately following that transaction no person (other than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly of more than 50% of the Voting Stock of such holding company.

The term “person,” as used in this definition, has the meaning given thereto in Section 13(d)(3) of the Exchange Act.

“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event.

“Comparable Treasury Issue” means the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining term (as measured from the date of redemption) of the Notes to be redeemed calculated as if the maturity date of such series of Notes were the applicable 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, with respect to any Redemption Date, (i) the average of four Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (ii) if the Quotation Agent obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations, or (iii) if only one Reference Treasury Dealer Quotation is received, such quotation.

“Consolidated Net Tangible Assets” means the aggregate amount of assets (less applicable reserves and other properly deductible items) of the Company and its Restricted Subsidiaries after deducting therefrom (a) all goodwill, tradenames, trademarks, patents, unamortized debt discount and expense and other like intangibles and (b) all current liabilities (excluding any current liabilities for money borrowed having a maturity of less than 12 months but by its terms being renewable or extendible beyond 12 months from such date at the option of the borrower), all as reflected in the Company’s latest audited consolidated balance sheet contained in the Company’s most recent annual report to its stockholders prior to the time as of which “Consolidated Net Tangible Assets” shall be determined.

“Continuing Director” means, as of any date of determination, any member of the Board of Directors who (1) was a member of the Board of Directors on November 27, 2017; or (2) was nominated for election, elected or appointed to the Board of Directors with the approval of a majority of the Continuing Directors who were members of the Board of Directors at the time of

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such nomination, election or appointment (either by a specific vote or by approval of the Company’s proxy statement in which such member was named as a nominee for election as a director).

“Corporate Trust Office” means the office of the Trustee at which the corporate trust business of the Trustee with respect to the Seventh Supplemental Indenture is, at any particular time, principally administered, which office is, as of the date on which this Seventh Supplemental Indenture is dated, located in Minneapolis, Minnesota.

c/o   Wells Fargo Bank, National Association

150 East 42nd Street

40th Floor

New York, NY  10017

Attention: Ecolab Administrator

“Exchange Notes” means, with respect to each series of Notes, any securities of the Company containing terms identical in all material respects to such series of Notes, except that the Exchange Notes will not bear the Private Placement Legend or the Regulation S Temporary Global Note Legend, and will be issued and exchanged for the Notes of the applicable series pursuant to the Registration Rights Agreement, the Existing Indenture and this Seventh Supplemental Indenture.

“Exchange Offer” means an offer that may be made by the Company pursuant to the Registration Rights Agreement to exchange Initial Notes for the Exchange Notes.

“Initial Notes” means (a) the 2027 Notes issued on the date hereof and (b) the 2047 Notes (i) issued on the date hereof and (ii) that may be issued in exchange for the Company’s 5.500% Notes due 2041, in all cases that contain the Private Placement Legend or the Regulation S Temporary Global Note Legend.

“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating categories of Moody’s) and a rating of BBB- or better by S&P (or its equivalent under any successor rating categories of S&P) or the equivalent investment grade credit rating from any additional Rating Agency or Rating Agencies selected by the Company.

“Moody’s” means Moody’s Investors Service Inc. and its successors.

“Operating Property” means any manufacturing or processing plant, warehouse or distribution center, together with the land upon which it is situated located within the United States or in Canada and owned and operated as of the date of this Seventh Supplemental Indenture or thereafter by the Company or any Restricted Subsidiary and having a net book value on the date as of which the determination is being made of more than 1.0% of Consolidated Net Tangible Assets other than property which, in the opinion of the Board of Directors of the Company, is not of material importance to the total business conducted by the Company and its Restricted Subsidiaries taken as a whole.

“Private Placement Legend” means the legends set forth in Section 6.02.

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“Qualified Institutional Buyer” or “QIB” shall have the meaning set forth in Rule 144A.

“Quotation Agent” means any Reference Treasury Dealer appointed by the Company.

“Rating Agency” means (1) each of Moody’s and S&P; and (2) if either Moody’s or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of the Company’s control, a “nationally recognized statistical rating organization” as defined in Section 3(a)(62) of the Exchange Act, selected by the Company as a replacement agency for Moody’s or S&P, or both, as the case may be.

“Reference Treasury Dealer” means (i) each of Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC and J.P. Morgan Securities Inc. (or their respective affiliates that are Primary Treasury Dealers) and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer (a “Primary Treasury Dealer”), the Company shall substitute therefor another Primary Treasury Dealer, (ii) a Primary Treasury Dealer appointed by MUFG Securities Americas Inc. and its successors, and (iii) one other Primary Treasury Dealer selected by the Company.

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Company, 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 Quotation Agent by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such Redemption Date.

“Registration Rights Agreement” means that certain registration rights agreement, dated as of November 27, 2017, by and among the Company and Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, J.P. Morgan Securities LLC, MUFG Securities Americas Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated.

“Regulation S” means Regulation S promulgated under the Securities Act and any successor regulation thereto.

“Regulation S Global Note” means the Global Security representing the Notes sold outside the United States in reliance on Regulation S issued in exchange for the Temporary Regulation S Global Note after the expiration of the Restricted Period.

“Regulation S Temporary Global Note Legend” means the legend set forth in Section 6.03.

“Restricted Global Note” means a Global Security, which shall bear a Private Placement Legend and, if applicable, a Regulation S Temporary Global Note Legend.

 

“Restricted Notes” means any Note that is (a) a “restricted security” as defined in Rule 144(a)(3) under the Securities Act or any successor provision thereto or (b) a Note that by its terms can only be sold pursuant to Regulation S, Rule 144 or Rule 144A (or successor provisions thereto) or (c) in a transaction exempt from the registration requirements of the Securities Act pursuant to Section 4 of the Securities Act, including Regulation S and Rule 144A; provided , however , that unless a Note by its terms can only be sold pursuant to Regulation S or Rule 144A,

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once the Note is sold pursuant to the provisions of Rule 144, including Rule 144(k) under the Securities Act, it will cease to be a Restricted Note. Restricted Notes are required to bear the Private Placement Legend.

“Restricted Period” means the 40-day “distribution compliance period” as defined in Regulation S.

“Restricted Subsidiaries” means all Subsidiaries other than Unrestricted Subsidiaries.

“Rule 144A” means Rule 144A, as may be amended from time to time, promulgated under the Securities Act.

“Rule 144A Global Note” means, with respect to each series of Notes, the Global Security substantially in the form of Exhibit A (with respect to the 2027 Notes) or Exhibit B (with respect to the 2047 Notes), as applicable, bearing the applicable Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee, each of which shall be issued in a denomination equal to the outstanding principal amount of the applicable series of Notes sold in reliance on Rule 144A.

“S&P” means S&P Global Ratings, a division of S&P Global Inc., and its successors.

“Temporary Regulation S Global Note” means, with respect to each series of Notes, the Global Security substantially in the form of Exhibit A (with respect to the 2027 Notes) or Exhibit B (with respect to the 2047 Notes), as applicable, bearing the Regulation S Temporary Global Note Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee, each of which shall be issued in a denomination equal to the outstanding principal amount of the applicable series of Notes sold in reliance on Regulation S.

“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming 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.

“Unrestricted Subsidiaries” means (1) any Subsidiary substantially all of whose physical properties are located, or substantially all of whose business is carried on, outside the United States and Canada, (2) any finance Subsidiary and (3) any Subsidiary of an Unrestricted Subsidiary.  In addition, the Board of Directors may designate any other Subsidiary of the Company (including any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns any capital stock of, or owns or holds any mortgage on any Operating Property of, the Company or any Restricted Subsidiary of the Company; provided that the Subsidiary to be so designated has total assets at the time of such designation of $5 million or less.

“Voting Stock” of any specified Person as of any date means the capital stock of such Person that is at the time entitled to vote generally in the election of the board of directors of such Person.

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“Wholly-Owned Subsidiary” of any specified Person means a Subsidiary all of whose Voting Stock is owned by the Company or a Wholly-Owned Subsidiary, the accounts of which are consolidated with those of the Company in its consolidated financial statements.

Section 2.02     Other Definitions .

Term		Defined in Section
“Additional Notes”		1.02
“Change of Control Offer”		4.01(b)
“Change of Control Payment”		4.01(a)
“Change of Control Payment Date”		4.01(b)(ii)
“Clearstream”		1.03(b)(ii)
“Debt”		5.01
“DTC”		1.03(a)
“Euroclear”		1.03(b)(ii)
“mortgage”		5.01
“Par Call Date”		ARTICLE III
“Primary Treasury Dealer”		2.01
“Remaining Life”		2.01
“Securities Custodian”		1.03(b)(ii)

 

ARTICLE III

OPTIONAL REDEMPTION

The Company may redeem the 2027 Notes, at any time prior to September 1, 2027, and the 2047 Notes, at any time prior to June 1, 2047 (each such date, a “Par Call Date”), in whole or from time to time in part, in each case at the Company’s option, at a Redemption Price equal to the greater of:

(i)        100% of the principal amount of the Notes to be redeemed on the Redemption Date; and

(ii)       as determined by the Quotation Agent, the sum of the present values of the principal amount of the Notes to be redeemed and remaining scheduled payments of interest thereon (not including any portion of such payments of interest accrued as of the Redemption Date) from the Redemption Date to the applicable Par Call Date, in each case discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points in respect of the 2027 Notes and plus 20 basis points in respect of the 2047 Notes;

plus, in each case, accrued and unpaid interest, if any, to but excluding the Redemption Date.

In addition, the Company may redeem the 2027 Notes and 2047 Notes at any time in whole or from time to time in part, at the Company’s option on or after the applicable Par Call

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Date, at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to but excluding the Redemption Date.

Notwithstanding the foregoing, installments of interest on the Notes that are due and payable on Interest Payment Dates falling on or prior to a Redemption Date will be payable on the Interest Payment Date to the registered Holders as of the close of business on the relevant Record Date according to the Notes and the Indenture.

Notice of any redemption will be delivered at least 30 days but not more than 60 days before the Redemption Date to each registered Holder of the Notes to be redeemed by the Company or by the Trustee on its behalf; provided that notice of redemption may be delivered more than 60 days prior to the Redemption Date if the notice is issued in connection with a defeasance of such Notes or a satisfaction and discharge of such Notes.

If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected by lot by the Trustee.

Except as otherwise set forth in this Article III, the terms and conditions upon which and the manner in which the Notes may be redeemed by the Company pursuant to this Article III are governed by the provisions of Article IV of the Existing Indenture.

ARTICLE IV

CHANGE OF CONTROL

Section 4.01     Change of Control .

(a)       Upon the occurrence of a Change of Control Repurchase Event, unless all of the Notes of a series have been called for redemption pursuant to Article III hereof, each Holder of Notes of such series shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes of such series at a repurchase price in cash equal to 101% of the aggregate principal amount of such Notes of such series repurchased plus any accrued and unpaid interest on the Notes repurchased to the date of repurchase (the “Change of Control Payment”).

(b)       Within 30 days following any Change of Control Repurchase Event or, at the Company’s option, prior to any Change of Control, but after the public announcement of the transaction or transactions that constitutes or may constitute a Change of Control, the Company shall mail, or cause to be mailed, a notice (a “Change of Control Offer”) to each Holder, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and specifying:

(i)        that the Change of Control Offer is being made pursuant to this Section 4.01 and that all Notes of such series tendered will be accepted for payment;

(ii)       the Change of Control Payment and the purchase date, which shall be a Business Day no earlier than 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);

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(iii)      the CUSIP numbers for the Notes of such series;

(iv)      that any Notes of such series not tendered will continue to accrue interest;

(v)       that, unless the Company defaults in the payment of the Change of Control Payment, all Notes of such series accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date;

(vi)      that Holders electing to have any Notes of such series purchased pursuant to a Change of Control Offer will be required to surrender such Notes to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;

(vii)     that Holders will be entitled to withdraw their election referred to in clause (vi) if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes of such series delivered for purchase, and a statement that such Holder is withdrawing his election to have such Notes purchased;

(viii)    that Holders whose Notes of such series are being purchased only in part will be issued new Notes of such series equal in principal amount to the unpurchased portion of the Notes of such series surrendered, which unpurchased portion will be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess thereof; and

(ix)      if the notice is mailed prior to the date of consummation of the Change of Control, that the Change of Control Offer is conditioned on the Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice.

(c)       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 of such series as a result of a Change of Control Repurchase Event.  To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.01, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.01 by virtue of such conflict.

(d)       On the Change of Control Payment Date, the Company will, to the extent lawful:

(i)        accept for payment all Notes of such series or portions thereof (in integral multiples of $1,000) properly tendered pursuant to the Change of Control Offer;

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

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(iii)      deliver or cause to be delivered to the Trustee the Notes of such series properly accepted, together with an Officer’s Certificate stating the aggregate principal amount of Notes of such series being purchased by the Company.

The Paying Agent will promptly deliver to each Holder of Notes of such series properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note of such series equal in principal amount to any unpurchased portion of such Notes surrendered, if any; provided that each new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.

(e)       The Company shall not be required to make a Change of Control Offer upon a Change of Control Repurchase Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.01 applicable to a Change of Control Offer made by the Company and purchases all Notes of such series properly tendered and not withdrawn under such Change of Control Offer.

ARTICLE V

COVENANTS

The covenants set forth in this Article V shall be applicable to the Company in addition to the covenants in Article VI of the Existing Indenture, which shall in all respects be applicable in respect of the Notes; provided that the covenant contained in Section 6.04 of the Existing Indenture shall not be applicable to the Notes.

Section 5.01     Restrictions on Liens .

The Company will not, and will not permit any Restricted Subsidiary to, issue, assume or guarantee any indebtedness for money borrowed (herein referred to as “Debt”) if such Debt is secured by any mortgage, security interest, pledge, lien or other encumbrance (herein referred to as a “mortgage”) upon any Operating Property of the Company or any Restricted Subsidiary or any shares of stock or Debt of any Restricted Subsidiary, whether owned at the date of the issuance of the Notes or thereafter acquired, without effectively securing the Notes equally and ratably with such Debt for at least the period such other Debt is so secured unless, after giving effect thereto, the aggregate amount of all Debt so secured (not including Debt permitted in clauses (1) through (7) in the following sentence), together with all Attributable Debt in respect of Sale and Leaseback Transactions involving Operating Properties pursuant to clause (2) of Section 5.02 in existence at such time would not exceed 15% of Consolidated Net Tangible Assets.

The foregoing restriction does not apply to, and therefore shall be excluded in computing secured Debt for the purpose of such restriction, Debt secured by:

(1)       mortgages on Operating Property, shares of stock or Debt of any entity existing at the time such entity becomes a Restricted Subsidiary, provided that such mortgages are not incurred in anticipation of such entity’s becoming a Restricted Subsidiary;

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(2)       mortgages on Operating Property, shares of stock or Debt existing at the time of acquisition thereof by the Company or a Restricted Subsidiary or mortgages thereon to secure the payment of all or any part of the purchase price thereof, or mortgages on Operating Property, shares of stock or Debt to secure any Debt incurred prior to, at the time of, or within 180 days after, the latest of the acquisition thereof or, in the case of Operating Property, the completion of construction, the completion of improvements or the commencement of substantial commercial operation of such Operating Property for the purpose of financing all or any part of the purchase price thereof, such construction or the making of such improvements;

(3)       mortgages to secure Debt owing to the Company or to a Restricted Subsidiary;

(4)       mortgages on Operating Property, shares of stock or Debt existing at the date of the initial issuance of the Notes;

(5)       mortgages on Operating Property, shares of stock or Debt of a Person existing at the time such Person is merged into or consolidated with the Company or a Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties of a Person as an entirety or substantially as an entirety to the Company or a Restricted Subsidiary, provided that such mortgage was not incurred in anticipation of such merger or consolidation or sale, lease or other disposition;

(6)       mortgages on Operating Property, shares of stock or Debt in favor of the United States or any state, territory or possession thereof (or the District of Columbia), or any department, agency, instrumentality or political subdivision of the United States or any state, territory or possession thereof (or the District of Columbia), to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any Debt incurred for the purpose of financing all or any part of the purchase price or the cost of constructing or improving the Operating Property subject to such mortgages; or

(7)       extensions, renewals or replacements, in whole or in part, of any mortgage referred to in the foregoing clauses (1) through (6), provided, however, that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement.

Section 5.02     Restrictions on Sale and Leaseback; Transactions .

Sale and Leaseback Transactions by the Company or any Restricted Subsidiary with a third party of any Operating Property are prohibited (except for temporary leases for a term, including renewals, of not more than 60 months and except for leases between the Company and a Restricted Subsidiary or between Restricted Subsidiaries) unless the net proceeds of such Sale and Leaseback Transactions are at least equal to the fair market value (as determined in good faith by the Board of Directors) of the Operating Property to be leased and either:

(1)       the Company or such Restricted Subsidiary would (at the time of entering into such arrangement) be entitled, as described in clauses (1) through (7) of the second

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paragraph of Section 5.01, without equally and ratably securing the Notes, to issue, assume or guarantee Debt secured by a mortgage on such Operating Property;

(2)       the Attributable Debt of the Company and its Restricted Subsidiaries in respect of such Sale and Leaseback Transactions (other than such Sale and Leaseback Transactions as are referred to in clause (1) or (3) of this paragraph), plus the aggregate principal amount of Debt secured by mortgages on Operating Properties then outstanding (excluding any such Debt secured by mortgages described in clauses (1) through (7) of the second paragraph of Section 5.01) which do not equally and ratably secure the Notes, would not exceed 15% of Consolidated Net Tangible Assets; or

(3)       the Company, within 180 days after the sale or transfer, applies or causes a Restricted Subsidiary to apply an amount equal to the greater of the net proceeds of such sale or transfer or fair market value of the Operating Property (as determined in good faith by the Board of Directors) so sold and leased back at the time of entering into such Sale and Leaseback Transaction to

(a)       retire (other than any mandatory retirement, mandatory repayment or sinking fund payment or by payment at maturity) Notes or other Debt of the Company or a Restricted Subsidiary (other than Debt subordinated to the Notes) having a Stated Maturity more than 12 months from the date of such application or which is extendible at the option of the obligor thereon to a date more than 12 months from the date of such application or

(b)       purchase, construct or develop one or more Operating Properties (other than that involved in such Sale and Leaseback Transaction);

provided that the amount to be so applied pursuant to this clause (3) will be reduced by the principal amount of Notes delivered within 180 days after such sale or transfer to the Trustee for retirement and cancellation.

Section 5.03     Other Limitations .

(a)       Neither the Company nor any Restricted Subsidiary may transfer an Operating Property or shares of stock or Debt of a Restricted Subsidiary to an Unrestricted Subsidiary.

(b)       An Unrestricted Subsidiary may not be designated a Restricted Subsidiary unless, after giving effect thereto, the aggregate amount of all Debt of the Company and its Restricted Subsidiaries secured by mortgages which would otherwise be subject to the restrictions of Section 5.01 and the Attributable Debt in respect of all Sale and Leaseback Transactions pursuant to clause (2) under Section 5.02 in existence at such time does not at the time exceed 15% of Consolidated Net Tangible Assets.

Section 5.04     Merger, Consolidation and Sale of Assets.

(a)       The Company will not consolidate with or merge into any other Person or sell, convey, transfer or lease all or substantially all its assets to any other Person, unless (1) the Person formed by such consolidation or into which the Company is merged or to which such

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sale, conveyance, transfer or lease is made shall (A) be incorporated or otherwise organized under the laws of the United States, any state thereof or the District of Columbia, and (B) expressly assume, by supplemental indenture, executed and delivered by such Person prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and interest and premium, if any, on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under the Notes to be performed or observed by the Company; and (2) immediately after giving effect to such consolidation, merger, sale, conveyance, transfer or lease, no Default shall have occurred and be continuing. Clause (2) of the immediately preceding sentence shall not apply to (X) any sale, conveyance, transfer or lease between or among the Company and one or more Subsidiaries of the Company, (Y) any merger of the Company into any Subsidiary of the Company or (Z) any merger of the Company into an Affiliate of the Company for the purpose of the Company reincorporating or reorganizing.

(b)       Upon any consolidation of the Company with or merger of the Company into any other Person, or any sale, conveyance, transfer or lease of all or substantially all of the assets of the Company to any other Person, in accordance with this Section 5.04, the Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if such successor Person had been named as the Company in the Indenture, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes, and from time to time such Person may exercise each and every right and power of the Company under the Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of the Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board or officer of any Person that shall at the time be the successor of the Company hereunder. In the event of any such sale, conveyance or transfer, but not any such lease, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 5.04) shall be relieved of and discharged from all obligations and covenants under the Indenture and the Notes and may thereupon be dissolved and liquidated.

(c)       The Trustee, subject to the provisions of Sections 10.01 and 10.02 of the Existing Indenture, may receive an Opinion of Counsel, prepared in accordance with Section 15.01 of the Existing Indenture, as conclusive evidence that any such merger, sale, conveyance or lease, and any such assumption, complies with the applicable provisions of the Indenture.

ARTICLE VI

TRANSFER RESTRICTIONS, LEGENDS

Section 6.01     Special Transfer Provisions .

(a)       Notwithstanding any provision to the contrary herein, unless and until (x) a Restricted Note is exchanged for an Exchange Note or sold in connection with an effective shelf registration statement pursuant to the Registration Rights Agreement or (y) the Private Placement Legends are no longer required pursuant to Section 6.02, the following provisions shall apply:

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(i)        Prior to the expiration of the Restricted Period, transfers by an owner of a beneficial interest in a Temporary Regulation S Global Note to a transferee who takes delivery in the form of a beneficial interest in the notes represented by a Rule 144A Global Note will be made only in accordance with the applicable procedures of DTC and upon receipt by the Trustee of a written certification from the transferor of the beneficial interest in the form of Exhibit E to the effect that such transfer is being made to a person whom the transferor reasonably believes is a QIB in a transaction meeting the requirements of Rule 144A.

(ii)       Transfers by an owner of a beneficial interest in a Rule 144A Global Note to a transferee who takes delivery in the form of a beneficial interest in the notes represented by a Regulation S Global Note, whether before or after the expiration of the Restricted Period, will be made only upon receipt by the Trustee of a written certification from the transferor of the beneficial interest in the form of Exhibit C or D , as appropriate,  to the effect that such transfer is being made in accordance with Regulation S or (if available) Rule 144 and that, if such transfer is being made prior to the expiration of the Restricted Period, the interest transferred will be held immediately thereafter through DTC.

(iii)      Exchanges of beneficial interests in one Notes for another Note will be subject to the applicable rules and procedures of DTC and its direct and indirect participants. Any beneficial interest in the Global Securities that is transferred to a person who takes delivery in the form of an interest in another Note will, upon transfer, cease to be an interest in that Note and become an interest in the Note to which the beneficial interest is transferred and, accordingly, will thereafter be subject to all transfer restrictions, if any, and other procedures applicable to beneficial interests in the Notes to which the beneficial interest is transferred for as long as it remains an interest in that Note.

(b)        Exchange Offer .  Upon the occurrence of the Exchange Offer, the Company shall issue and, upon receipt of an authentication order in accordance with Section 3.03 of the Existing Indenture, the Trustee shall authenticate and deliver, one or more Global Securities for each series of Notes not bearing the Private Placement Legend in an aggregate principal amount equal to the principal amount of the beneficial interests in the Global Securities that are Restricted Notes for the same series of Notes tendered for acceptance in accordance with the Exchange Offer and accepted for exchange in the Exchange Offer.  Concurrently with the issuance of such Global Securities, the Registrar shall cause the aggregate principal amount of the Restricted Securities for the applicable series of Notes to be reduced accordingly, and the Company shall execute and the Trustee shall authenticate Global Securities not bearing the Private Placement Legend in the appropriate principal amount.

Interest on each Exchange Note will accrue (1) from the later of (x) the last date on which interest was paid on the Global Securities that are Restricted Notes of such series surrendered in exchange therefor or (y) if the Global Securities that are Restricted Notes of such series are surrendered for exchange on a date in a period which includes the record date for an interest payment date on such series to occur on or after the date of such exchange and as to which

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interest will be paid, the date of such interest payment date or (2) if no interest has been paid on the Global Securities that are Restricted Notes of such series, from the date of issuance.

 

Section 6.02     Private Placement Legend . Unless and until (x) a Note is exchanged for an Exchange Note or sold in connection with an effective registration statement, or (y) the Company determines and there is delivered to the Trustee an Opinion of Counsel reasonably satisfactory to the Trustee and an Officer’s Certificate of the Company reasonably satisfactory to the Trustee to the effect that the following legend and the related restrictions on transfer are not required in order to maintain compliance with the provisions of the Securities Act, each Global Security and each Individual Security (and all Notes issued in exchange therefor or substitution therefor) shall bear a legend as follows:

(a)       Each certificate evidencing the Notes (except for those notes issued to non-“U.S. persons” as defined in Rule 902 under the Securities Act who are acquiring the notes in an offshore transaction in accordance with Regulation S) shall bear a 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’’), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, THAT THIS NOTE OR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) TO ECOLAB INC. (THE ‘‘ISSUER’’) OR ANY OF ITS SUBSIDIARIES, (II) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (‘‘RULE 144A’’), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A) IN ACCORDANCE WITH RULE 144A, (III) IN AN OFFSHORE TRANSACTION TO A NON-U.S. PERSON IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (IV) TO AN INSTITUTION THAT IS AN ‘‘ACCREDITED INVESTOR’’ AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, (V) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), OR (VI) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND IN EACH OF SUCH CASES IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER APPLICABLE JURISDICTION. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, REPRESENTS AND AGREES THAT IT WILL NOTIFY ANY

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PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO ABOVE. THE FOREGOING LEGEND MAY BE REMOVED FROM THIS NOTE ONLY WITH THE CONSENT OF THE ISSUER. BY ITS ACQUISITION OF THIS SECURITY (OR ANY INTEREST HEREIN) THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (I) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (‘‘ERISA’’), OF A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE ‘‘CODE’’) OR PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (‘‘SIMILAR LAWS’’), OR OF AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE ‘‘PLAN ASSETS’’ OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT (EACH A ‘‘PLAN’’), OR (II) THE ACQUISITION AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE OR GIVE RISE TO A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS. FURTHER, IF THE PURCHASER IS A PLAN THEN, AT ANY TIME WHEN REGULATION 29 C.F.R. SECTION 2510.3-21, AS MODIFIED APRIL 8, 2016, IS APPLICABLE, BY ITS ACCEPTANCE OF SUCH NOTE OR INTEREST IN SUCH NOTE, IT WILL BE DEEMED TO ACKNOWLEDGE AND AGREE THAT THE PERSON MAKING THE DECISION TO MAKE SUCH INVESTMENT ON ITS BEHALF IS AN INDEPENDENT FIDUCIARY (AS DEFINED IN (B) BELOW) AND SUCH INDEPENDENT FIDUCIARY ACKNOWLEDGES AND AGREES THAT (I) IT HAS BEEN INFORMED THAT NONE OF THE ISSUER, ANY GUARANTOR, THE INITIAL PURCHASERS OR ANY OF THEIR AGENTS OR AFFILIATES (THE ‘‘TRANSACTION PARTIES’’), HAS PROVIDED, AND NONE OF THEM WILL PROVIDE, ANY IMPARTIAL INVESTMENT RECOMMENDATION OR INVESTMENT ADVICE, AND THEY ARE NOT GIVING ANY ADVICE IN A FIDUCIARY CAPACITY, IN CONNECTION WITH ITS ACQUISITION AND HOLDING OF NOTES; AND (II) THAT IT HAS RECEIVED AND UNDERSTANDS THE DISCLOSURE OF THE EXISTENCE AND NATURE OF THE TRANSACTION PARTIES’ FINANCIAL INTERESTS CONTAINED IN THE PRIVATE PLACEMENT MEMORANDA AND ANY OTHER MATERIALS PROVIDED TO IT. FURTHER, THE INDEPENDENT FIDUCIARY WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS EITHER (A) A BANK, INSURANCE COMPANY, REGISTERED INVESTMENT ADVISER, BROKER-DEALER OR OTHER PERSON, IN EACH CASE AS DESCRIBED IN 29 C.F.R. SECTION 2510.3-21(C)(1)(I); (B) IS AN INDEPENDENT PLAN FIDUCIARY WITHIN THE MEANING OF 29 C.F.R. SECTION 2510.3-21(C) (‘‘INDEPENDENT FIDUCIARY’’); (C) IS CAPABLE OF EVALUATING

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INVESTMENT RISKS INDEPENDENTLY, BOTH IN GENERAL AND WITH REGARD TO PARTICULAR TRANSACTIONS AND INVESTMENT STRATEGIES; (D) IS RESPONSIBLE FOR EXERCISING INDEPENDENT JUDGMENT IN EVALUATING THE TRANSACTION; AND (E) NEITHER IT NOR THE INDEPENDENT FIDUCIARY IS PAYING OR HAS PAID ANY FEE OR OTHER COMPENSATION DIRECTLY TO ANY OF THE TRANSACTION PARTIES FOR INVESTMENT ADVICE (AS OPPOSED TO OTHER SERVICES) IN CONNECTION WITH ITS ACQUISITION OR HOLDING OF NOTES.”

(b)       Each certificate evidencing the Notes issued to non-’’U.S. persons’’ as defined in Rule 902 under the Securities Act who is acquiring the notes in an offshore transaction in accordance with Regulation S shall bear a 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’’), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, THAT THIS NOTE OR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) TO ECOLAB INC. (THE ‘‘ISSUER’’) OR ANY OF ITS SUBSIDIARIES, (II) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (‘‘RULE 144A’’), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A) IN ACCORDANCE WITH RULE 144A, (III) IN AN OFFSHORE TRANSACTION TO A NON-U.S. PERSON IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (IV) TO AN INSTITUTION THAT IS AN ‘‘ACCREDITED INVESTOR’’ AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, (V) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), OR (VI) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND IN EACH OF SUCH CASES IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER APPLICABLE JURISDICTION. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, REPRESENTS AND AGREES THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT. THE FOREGOING LEGEND MAY BE REMOVED FROM THIS NOTE AFTER THE

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RESALE RESTRICTION TERMINATION DATE. BY ITS ACQUISITION OF THIS SECURITY (OR ANY INTEREST HEREIN) THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (I) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (‘‘ERISA’’), OF A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE ‘‘CODE’’) OR PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (‘‘SIMILAR LAWS’’), OR OF AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE ‘‘PLAN ASSETS’’ OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT (EACH A ‘‘PLAN’’), OR (II) THE ACQUISITION AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE OR GIVE RISE TO A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS. FURTHER, IF THE PURCHASER IS A PLAN THEN, AT ANY TIME WHEN REGULATION 29 C.F.R. SECTION 2510.3-21, AS MODIFIED APRIL 8, 2016, IS APPLICABLE, BY ITS ACCEPTANCE OF SUCH NOTE OR INTEREST IN SUCH NOTE, IT WILL BE DEEMED TO ACKNOWLEDGE AND AGREE THAT THE PERSON MAKING THE DECISION TO MAKE SUCH INVESTMENT ON ITS BEHALF IS AN INDEPENDENT FIDUCIARY (AS DEFINED IN (B) BELOW) AND SUCH INDEPENDENT FIDUCIARY ACKNOWLEDGES AND AGREES THAT (I) IT HAS BEEN INFORMED THAT NONE OF THE ISSUER, ANY GUARANTOR, THE INITIAL PURCHASERS OR ANY OF THEIR AGENTS OR AFFILIATES (THE ‘‘TRANSACTION PARTIES’’), HAS PROVIDED, AND NONE OF THEM WILL PROVIDE, ANY IMPARTIAL INVESTMENT RECOMMENDATION OR INVESTMENT ADVICE, AND THEY ARE NOT GIVING ANY ADVICE IN A FIDUCIARY CAPACITY, IN CONNECTION WITH ITS ACQUISITION AND HOLDING OF NOTES; AND (II) THAT IT HAS RECEIVED AND UNDERSTANDS THE DISCLOSURE OF THE EXISTENCE AND NATURE OF THE TRANSACTION PARTIES’ FINANCIAL INTERESTS CONTAINED IN THE PRIVATE PLACEMENT MEMORANDA AND ANY OTHER MATERIALS PROVIDED TO IT. FURTHER, THE INDEPENDENT FIDUCIARY WILL BE DEEMED TO REPRESENT AND WARRANT THAT IT IS EITHER (A) A BANK, INSURANCE COMPANY, REGISTERED INVESTMENT ADVISER, BROKER-DEALER OR OTHER PERSON, IN EACH CASE AS DESCRIBED IN 29 C.F.R. SECTION 2510.3-21(C)(1)(I); (B) IS AN INDEPENDENT PLAN FIDUCIARY WITHIN THE MEANING OF 29 C.F.R. SECTION 2510.3-21(C) (‘‘INDEPENDENT FIDUCIARY’’); (C) IS CAPABLE OF EVALUATING INVESTMENT RISKS INDEPENDENTLY, BOTH IN GENERAL AND WITH REGARD TO PARTICULAR TRANSACTIONS AND INVESTMENT STRATEGIES; (D) IS

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RESPONSIBLE FOR EXERCISING INDEPENDENT JUDGMENT IN EVALUATING THE TRANSACTION; AND (E) NEITHER IT NOR THE INDEPENDENT FIDUCIARY IS PAYING OR HAS PAID ANY FEE OR OTHER COMPENSATION DIRECTLY TO ANY OF THE TRANSACTION PARTIES FOR INVESTMENT ADVICE (AS OPPOSED TO OTHER SERVICES) IN CONNECTION WITH ITS ACQUISITION OR HOLDING OF NOTES.’’ 

Section 6.03     Regulation S Temporary Global Note Legend .  Each temporary Note that is a Global Security issued pursuant to Regulation S shall bear a legend in substantially the following form:

“ THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE.  THE HOLDER OF THIS NOTE BY ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IF IT IS A PURCHASER IN A SALE THAT OCCURS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S OF THE SECURITIES ACT, IT ACKNOWLEDGES THAT, UNTIL EXPIRATION OF THE “40-DAY DISTRIBUTION COMPLIANCE PERIOD” WITHIN THE MEANING OF RULE 903 OF REGULATION S, ANY OFFER OR SALE OF THIS NOTE SHALL NOT BE MADE BY IT TO A U.S. PERSON TO OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON WITHIN THE MEANING OF RULE 902(k) UNDER THE SECURITIES ACT .”

Section 6.04     Delivery of Certain Information .

(a)       So long as any Initial Notes remain outstanding and the Company is neither subject to Section 13 or 15(d) of the Exchange Act nor exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act, the Company will furnish to any Holder of Notes and any prospective purchaser designated by a Holder, upon request of the Holder, the information required to be delivered pursuant to Rule 144A(d)(4) (or any successor provision thereto) under the Securities Act, unless at that time (a) the SEC shall have waived such requirement in writing or otherwise taken the position that subsection 144A(d)(4)(i) does not apply to the Company or (b) the provision of such information shall no longer be required by law to effect resales under Rule 144A under the Securities Act or otherwise to effect resales without registration under the Securities Act.

(b)       The transferor of any Note shall provide or cause to be provided to the Trustee all information necessary to allow the Trustee to comply with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Internal Revenue Code Section 6045. The Trustee may rely on information provided to it and shall have no responsibility to verify or ensure the accuracy of such information.

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ARTICLE VII

MISCELLANEOUS

Section 7.01     Trust Indenture Act Controls .

If any provision of this Seventh Supplemental Indenture limits, qualifies or conflicts with another provision that is required or deemed to be included in this Seventh Supplemental Indenture by the Trust Indenture Act, the required or deemed provision shall control.

Section 7.02     Notices .

Any notice or communication shall be in writing and delivered in person or mailed by first-class mail or sent by facsimile (with a hard copy delivered in person or by mail promptly thereafter) and addressed as follows:

if to the Company:

Ecolab Inc.
1 Ecolab Place
St. Paul, Minnesota 55102
Attention: General Counsel
Facsimile: (651) 250-2573

if to the Trustee:

Wells Fargo Bank, National Association
150 East 42nd Street
40th Floor
New York, NY  10017
Attention: Ecolab Administrator
Facsimile: (917) 260-1593

The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.

Notwithstanding any other provision of this Seventh Supplemental Indenture, the Existing Indenture or any Note, where this Seventh Supplemental Indenture, the Existing Indenture or any Note provides for notice of any event (including any notice of redemption or repurchase) to a Holder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given if given to DTC (or its designee) pursuant to the standing instructions from DTC or its designee, including by electronic mail in accordance with accepted practices at DTC.

Section 7.03     Governing Law .

THIS SEVENTH SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

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Section 7.04     Multiple Originals .

The parties may sign any number of copies of this Seventh Supplemental Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.  One signed copy is enough to prove this Seventh Supplemental Indenture.

Section 7.05     Headings .

The headings of Articles and Sections of this Seventh Supplemental Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.

Section 7.06     Not Responsible for Recitals or Issuance of Notes .

The recitals contained herein and in the Notes, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and the Trustee does not assume any responsibility for their correctness.  The Trustee makes no representation as to the validity or sufficiency of this Seventh Supplemental Indenture or of the Notes.  The Trustee shall not be accountable for the Company’s use of the proceeds from the Notes or for monies paid over to the Company pursuant to this Seventh Supplemental Indenture .  All of the provisions contained in the Existing Indenture in respect of the rights, privileges, and immunities of the Trustee, including but not limited to its rights to be compensated, reimbursed and indemnified, shall be applicable to the Trustee in respect of this Seventh Supplemental Indenture as fully and with like force and effect as though set forth in full herein.

Section 7.07     Adoption, Ratification and Confirmation .

The Existing Indenture, as supplemented and amended by this Seventh Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed.

[Signature Page Follows]

 

 

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IN WITNESS WHEREOF, the parties have caused this Seventh Supplemental Indenture to be duly executed as of the date first written above.

 

 

 

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EXHIBIT A

[Form of Face of Note]

[Add applicable Private Placement Legend.]

[Add Regulation S Temporary Global Note Legend, if applicable.]

THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.  THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY 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 REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

CUSIP 1  
ISIN

ECOLAB INC.

3.250% NOTE DUE 2027

 

ECOLAB INC., a Delaware corporation (herein called the “Company”), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of $[__] ([__] MILLION DOLLARS) or such other principal amount as shall be set forth on Schedule I hereto on December 1, 2027 and to pay interest thereon at the rate of 3.250% per annum from November 27, 2017 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, and to pay the Additional Interest, if any, as defined in and payable pursuant to the Registration Rights Agreement, on June 1 and December 1 of each year,

1        Rule 144A Notes:  278865 BB5 / US278865BB51
Regulation S Notes:  U27803 AH5 / USU27803AH55

Temporary Reg-S Note will convert to the Permanent Reg-S Note Cusip # ____ automatically after the Restricted Period ends, subject to the requirements set forth in the Indenture.

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commencing June 1, 2018 (each an “Interest Payment Date”), until the principal hereof is paid or made available for payment.

The interest that is payable and is punctually paid or duly provided for on any Interest Payment Date will, except as provided in the Indenture hereinafter referred to, be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the Record Date for such interest, which will be the May 15 and November 15, as the case may be, immediately preceding each Interest Payment Date.  Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on the relevant Record Date and either may be paid to the Persons in whose name this Note (or one or more predecessor Notes) are registered at the close of business on a Special Record Date for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders not less than ten calendar days prior to such Special Record Date, or may be paid in any other lawful manner, all as more fully provided in the Indenture.  Payment of the principal of and interest on this Note will be made at the office or agency of the Company maintained for that purpose, or in such other office or agency as may be established by the Company pursuant to the Indenture (initially the principal corporate trust office of the Trustee in Minneapolis, Minnesota (the “Corporate Trust Office”)), 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; provided, however, that payment of interest may be made at the option of the Company through the Paying Agent (i) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or (ii) by wire transfer to an account maintained by the Person entitled thereto as specified in the Security Register.  In the event that notes in definitive form shall have been issued, payments of principal and interest at maturity will be made against presentation of this Note at the Corporate Trust Office (or such other office as may be established pursuant to the Indenture), by check or wire transfer.

Reference is hereby made to the further provisions of this Note set forth on the reverse side hereof, which further provisions shall for all purposes have the same effect as though fully set forth at this place.

Unless the Certificate of Authentication hereon has been executed by the Trustee or an Authenticating Agent under the Indenture referred to on the reverse hereof by the manual signature of one of its authorized officers, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

 

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IN WITNESS WHEREOF, the Company has caused this Note to be signed in its name by the manual or facsimile signature of its Assistant Treasurer and attested by the manual or facsimile signature of one of its Assistant Secretaries.

Date: November 27, 2017

 

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Trustee’s Certificate of Authentication

This is one of the Notes described in the Indenture.

Dated:  November 27, 2017

 

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[Form of Reverse of Note]

 

ECOLAB INC.

 

3.250% NOTE DUE 2027

1.        This Note is one of a duly authorized issue of securities of the Company designated as its 3.250% Notes due 2027 (the “Notes”) issued under an Indenture dated as of January 12, 2015 (herein called, together with the Seventh Supplemental Indenture referred to below, the “Indenture”), between the Company and Wells Fargo Bank National Association, as Trustee, to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights thereunder of the Company, the Trustee and the Holders of the Notes, and the terms upon which the Notes are, and are to be, authenticated and delivered.

2.        This Note is one of the notes of the series designated on the face hereof, limited to an aggregate principal amount not to exceed $500,000,000, which amount may be increased at the option of the Company if in the future it determines that it may wish to sell additional Notes of this series, as specified in the Seventh Supplemental Indenture between the Company and Trustee, dated as of November 27, 2017, establishing the form and certain terms of the Notes pursuant to the Indenture (the “Seventh Supplemental Indenture”). References herein to “this series” mean the series of Notes designated on the face hereof.

3.        The Company may redeem the Notes, prior to September 1, 2027 (the “Par Call Date”), at any time in whole or from time to time in part, in each case at the Company’s option, at a Redemption Price equal to the greater of:

(i)        100% of the principal amount of the Notes to be redeemed on the Redemption Date; and

(ii)       as determined by the Quotation Agent, the sum of the present values of the principal amount of the Notes to be redeemed and remaining scheduled payments of interest thereon (not including any portion of such payments of interest accrued as of the Redemption Date) from the Redemption Date to the Par Call Date, in each case discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points;

plus, in each case, accrued and unpaid interest, if any, to but excluding the Redemption Date.

In addition, the Company may redeem the Notes, at any time in whole or from time to time in part, at the Company’s option on or after the Par Call Date, at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to but excluding the Redemption Date.

Notwithstanding the foregoing, installments of interest on the Notes that are due and payable on Interest Payment Dates falling on or prior to a Redemption Date will be payable on the Interest Payment Date to the registered Holders as of the close of business on the relevant Record Date according to this Note and the Indenture.

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Any notice to holders of Notes of a redemption pursuant to this paragraph 3 hereof will include the appropriate calculation of the Redemption Price, but does not need to include the Redemption Price itself.  The actual Redemption Price, calculated as described above, will be set forth in a Company Order delivered to the Trustee no later than two Business Days prior to the Redemption Date.

4.        Upon the occurrence of a Change of Control Repurchase Event, unless all of the Notes have been called for redemption pursuant to paragraph 3 of this Note, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of such Notes repurchased plus any accrued and unpaid interest on the Notes repurchased to the date of repurchase.  “Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event, as such terms are defined in the Indenture.  The Change of Control Offer will be made in accordance with the terms specified in the Indenture.

5.        If an Event of Default with respect to the Notes (other than certain events of bankruptcy, insolvency or reorganization) shall occur and be continuing, the Trustee or the Holders of 25% or more in principal amount of the Outstanding Notes may declare the principal of and all accrued but unpaid interest on all Notes to be due and payable in the manner and with the effect provided in the Indenture.  The Indenture provides that such declaration and its consequences may, in certain events, be annulled by the Holders of a majority in principal amount of the Outstanding Notes.  If an Event of Default with respect to the Notes relating to certain events of bankruptcy, insolvency or reorganization shall occur and be continuing, the principal of and all accrued but unpaid interest on all Notes shall automatically become due and payable as provided in the Indenture.

6.        The Holder of this Note is entitled to the benefits of the Registration Rights Agreement, dated as of November 27, 2017, among the Company and Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, J.P. Morgan Securities LLC, MUFG Securities Americas Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated. 2

7.        The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of Notes under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of Notes at the time Outstanding.  The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences.  Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and; of any Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof; whether or not notation of such consent or waiver is made upon this Note.

2           To be included only in the Initial Notes on the Issue Date and any Additional Notes that bear the Restricted Note Legend.

 

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8.        No reference herein to the Indenture and no provisions of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, places and rate, and in the coin or currency, herein prescribed.

9.        As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note may be registered on the Register of the Company, upon surrender of this Note for registration of transfer at the office or agency to be maintained by the Company for that purpose, or at such other office or agency as may be established by the Company for such purpose pursuant to the Indenture (initially the principal corporate trust office of the Trustee in Minneapolis, Minnesota), duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company, and duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for like aggregate principal amount, will be issued to the designated transferee or transferees.

10.      The Notes are issuable only in fully registered form, without coupons, in denominations of $2,000 or any amount in excess thereof which is an integral multiple of $1,000.  As provided in the Indenture, and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes in authorized denominations, as requested by the Holder surrendering the same.

11.      No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

12.      Prior to the due presentment of this Note for registration of transfer or exchange, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee, nor any such agent shall be affected by notice to the contrary.

13.      Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30- day months.  Interest shall be payable to and excluding any Interest Payment Date.

14.      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.

15.      This Note shall not be valid until authenticated by the manual signature of the Trustee or an Authenticating Agent.

16.      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), CUT (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

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17.      Each Holder of this Note covenants and agrees by such Holder’s acceptance thereof to comply with and be bound by the foregoing provisions.

18.      All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

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ASSIGNMENT FORM

FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto

PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE

PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE

_________________________________________

_________________________________________

_________________________________________

 

the within Security and all rights thereunder, hereby irrevocably constituting and appointing ____________________________ attorney to transfer said Security on the books of the Company, with full power of substitution in the premises.

Dated:_______________________________

Signature:____________________________

NOTICE:  THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.

Signature Guarantee:

SIGNATURE GUARANTEE

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

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EXHIBIT B

[Form of Face of Note]

[Add applicable Private Placement Legend.]

[Add Regulation S Temporary Global Note legend, if applicable.]

THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.  THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY 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 REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

CUSIP 3  
ISIN

ECOLAB INC.

 

3.950% NOTE DUE 2047

 

ECOLAB INC., a Delaware corporation (herein called the “Company”), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of $[__] ([__] MILLION DOLLARS) or such other principal amount as shall be set forth on Schedule I hereto on December 1, 2047 and to pay interest thereon at the rate of 3.950% per annum from November 27, 2017 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, and to pay the Additional Interest, if any, as defined and payable pursuant to the Registration Rights Agreement, on June 1 and December 1 of each year,

3        Rule 144A Notes:  278865 AZ3 / US278865AZ39
Regulation S Notes:  U27803 AG7 / USU27803AG72

Temporary Reg-S Note will convert to the Permanent Reg-S Note Cusip # ____ automatically after the Restricted Period ends, subject to the requirements set forth in the Indenture.

 

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commencing June 1, 2018 (each an “Interest Payment Date”), until the principal hereof is paid or made available for payment.

The interest that is payable and is punctually paid or duly provided for on any Interest Payment Date will, except as provided in the Indenture hereinafter referred to, be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the Record Date for such interest, which will be the May 15 and November 15, as the case may be, immediately preceding each Interest Payment Date.  Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on the relevant Record Date and either may be paid to the Persons in whose name this Note (or one or more predecessor Notes) are registered at the close of business on a Special Record Date for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders not less than ten calendar days prior to such Special Record Date, or may be paid in any other lawful manner, all as more fully provided in the Indenture.  Payment of the principal of and interest on this Note will be made at the office or agency of the Company maintained for that purpose, or in such other office or agency as may be established by the Company pursuant to the Indenture (initially the principal corporate trust office of the Trustee in Minneapolis, Minnesota (the “Corporate Trust Office”)), 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; provided, however, that payment of interest may be made at the option of the Company through the Paying Agent (i) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or (ii) by wire transfer to an account maintained by the Person entitled thereto as specified in the Security Register.  In the event that notes in definitive form shall have been issued, payments of principal and interest at maturity will be made against presentation of this Note at the Corporate Trust Office (or such other office as may be established pursuant to the Indenture), by check or wire transfer.

Reference is hereby made to the further provisions of this Note set forth on the reverse side hereof, which further provisions shall for all purposes have the same effect as though fully set forth at this place.

Unless the Certificate of Authentication hereon has been executed by the Trustee or an Authenticating Agent under the Indenture referred to on the reverse hereof by the manual signature of one of its authorized officers, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

 

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IN WITNESS WHEREOF, the Company has caused this Note to be signed in its name by the manual or facsimile signature of its Assistant Treasurer and attested by the manual or facsimile signature of one of its Assistant Secretaries.

Date: November 27, 2017

 

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Trustee’s Certificate of Authentication

This is one of the Notes described in the Indenture.

Dated:  November 27, 2017

 

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[Form of Reverse of Note]

 

ECOLAB INC.

 

3.950% NOTE DUE 2047

1.        This Note is one of a duly authorized issue of securities of the Company designated as its 3.950% Notes due 2047 (the “Notes”) issued under an Indenture dated as of January 12, 2015 (herein called, together with the Seventh Supplemental Indenture referred to below, the “Indenture”), between the Company and Wells Fargo Bank National Association, as Trustee, to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights thereunder of the Company, the Trustee and the Holders of the Notes, and the terms upon which the Notes are, and are to be, authenticated and delivered.

2.        This Note is one of the notes of the series designated on the face hereof, limited to an aggregate principal amount not to exceed $700,000,000, which amount may be increased at the option of the Company if in the future it determines that it may wish to sell additional Notes of this series, as specified in the Seventh Supplemental Indenture between the Company and Trustee, dated as of November 27, 2017, establishing the form and certain terms of the Notes pursuant to the Indenture (the “Seventh Supplemental Indenture”). References herein to “this series” mean the series of Notes designated on the face hereof.

3.        The Company may redeem the Notes, prior to June 1, 2047 (the “Par Call Date”), at any time in whole or from time to time in part, in each case at the Company’s option, at a Redemption Price equal to the greater of:

(i)        100% of the principal amount of the Notes to be redeemed on the Redemption Date; and

(ii)       as determined by the Quotation Agent, the sum of the present values of the principal amount of the Notes to be redeemed and remaining scheduled payments of interest thereon (not including any portion of such payments of interest accrued as of the Redemption Date) from the Redemption Date to the Par Call Date, in each case discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points;

plus, in each case, accrued and unpaid interest, if any, to but excluding the Redemption Date.

In addition, the Company may redeem the Notes, at any time in whole or from time to time in part, at the Company’s option on or after the Par Call Date, at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to but excluding the Redemption Date.

Notwithstanding the foregoing, installments of interest on the Notes that are due and payable on Interest Payment Dates falling on or prior to a Redemption Date will be payable on the Interest Payment Date to the registered Holders as of the close of business on the relevant Record Date according to this Note and the Indenture.

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Any notice to holders of Notes of a redemption pursuant to this paragraph 3 hereof will include the appropriate calculation of the Redemption Price, but does not need to include the Redemption Price itself.  The actual Redemption Price, calculated as described above, will be set forth in a Company Order delivered to the Trustee no later than two Business Days prior to the Redemption Date.

4.        Upon the occurrence of a Change of Control Repurchase Event, unless all of the Notes have been called for redemption pursuant to paragraph 3 of this Note, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of such Notes repurchased plus any accrued and unpaid interest on the Notes repurchased to the date of repurchase.  “Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event, as such terms are defined in the Indenture.  The Change of Control Offer will be made in accordance with the terms specified in the Indenture.

5.        If an Event of Default with respect to the Notes (other than certain events of bankruptcy, insolvency or reorganization) shall occur and be continuing, the Trustee or the Holders of 25% or more in principal amount of the Outstanding Notes may declare the principal of and all accrued but unpaid interest on all Notes to be due and payable in the manner and with the effect provided in the Indenture.  The Indenture provides that such declaration and its consequences may, in certain events, be annulled by the Holders of a majority in principal amount of the Outstanding Notes.  If an Event of Default with respect to the Notes relating to certain events of bankruptcy, insolvency or reorganization shall occur and be continuing, the principal of and all accrued but unpaid interest on all Notes shall automatically become due and payable as provided in the Indenture.

6.        The Holder of this Note is entitled to the benefits of the Registration Rights Agreement, dated as of November 27, 2017, among the Company and Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, J.P. Morgan Securities LLC, MUFG Securities Americas Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated. 4

7.        The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of Notes under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of Notes at the time Outstanding.  The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences.  Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and; of any Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof; whether or not notation of such consent or waiver is made upon this Note.

4           To be included only in the Initial Notes on the Issue Date and any Additional Notes that bear the Restricted Note Legend.

 

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8.        No reference herein to the Indenture and no provisions of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, places and rate, and in the coin or currency, herein prescribed.

9.        As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note may be registered on the Register of the Company, upon surrender of this Note for registration of transfer at the office or agency to be maintained by the Company for that purpose, or at such other office or agency as may be established by the Company for such purpose pursuant to the Indenture (initially the principal corporate trust office of the Trustee in Minneapolis, Minnesota), duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company, and duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for like aggregate principal amount, will be issued to the designated transferee or transferees.

10.      The Notes are issuable only in fully registered form, without coupons, in denominations of $2,000 or any amount in excess thereof which is an integral multiple of $1,000.  As provided in the Indenture, and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes in authorized denominations, as requested by the Holder surrendering the same.

11.      No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

12.      Prior to the due presentment of this Note for registration of transfer or exchange, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee, nor any such agent shall be affected by notice to the contrary.

13.      Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30- day months.  Interest shall be payable to and excluding any Interest Payment Date.

14.      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.

15.      This Note shall not be valid until authenticated by the manual signature of the Trustee or an Authenticating Agent.

16.      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), CUT (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

 

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17.      Each Holder of this Note covenants and agrees by such Holder’s acceptance thereof to comply with and be bound by the foregoing provisions.

18.      All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

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ASSIGNMENT FORM

FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto

PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE

 

PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE

_________________________________________

_________________________________________

_________________________________________

 

the within Security and all rights thereunder, hereby irrevocably constituting and appointing ____________________________ attorney to transfer said Security on the books of the Company, with full power of substitution in the premises.

Dated:_______________________________

Signature:____________________________

NOTICE:  THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.

Signature Guarantee:

SIGNATURE GUARANTEE

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

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EXHIBIT C

FORM OF TRANSFER CERTIFICATE

FOR EXCHANGE OR TRANSFER FROM RULE 144A GLOBAL

NOTE TO TEMPORARY REGULATION S GLOBAL NOTE

Wells Fargo Bank, N.A. – DAPS REORG

Corporate Trust Operations

MAC N9300-070

600 South Fourth Street – 7th Floor

Minneapolis, MN 55415

Phone: (800) 344-5128

Fax: (866) 969-1290

Email: dapsreorg@wellsfargo.com

 

 

Re:      ECOLAB INC.

$[                                        ]

Reference is hereby made to the Indenture dated as of January 12, 2015 between Wells Fargo Bank, National Association (the “ Trustee ”), and Ecolab Inc. (the “ Company ”), as supplemented by that certain Seventh Supplemental Indenture, dated as of November 27, 2017, by and between the Trustee and the Company (as so supplemented, the “ Indenture ”).  Capitalized terms not defined in this Certificate shall have the meanings given to them in the Indenture.

This letter relates to $_____________ principal amount of [2027 Notes][2047 Notes]  represented by a beneficial interest in the Rule 144A Global Note (CUSIP No. [_]) held with the Depositary by or on behalf of [transferor] as beneficial owner (the “ Transferor ”).  The Transferor has requested an exchange or transfer of its beneficial interest for an interest in the Temporary Regulation S Global Note (CUSIP (CINS) No. [_]) to be held with [Euroclear] [Clearstream] (ISIN Code ___) (Common Code ___) through the Depositary.

In connection with such request and in respect of such Notes, the Transferor does hereby certify that such exchange or transfer has been effected in accordance with the transfer restrictions set forth in the Notes and pursuant to and in accordance with Regulation S under the Securities Act, and accordingly the Transferor does hereby certify that:

(1)       the offer of the Notes was not made to a person in the United States;

(2)       (A)    at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States, or

(B)   the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was prearranged with a buyer in the United States;

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(3)       no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;

(4)       the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and

(5)       upon completion of the transaction, the beneficial interest being transferred as described above was held with the Depositary through Euroclear or Clearstream or both (ISIN Code ___) (Common Code ___).

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This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the dealers.

 

Dated: ______________, ____

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EXHIBIT D

FORM OF TRANSFER CERTIFICATE FOR TRANSFER

OR EXCHANGE FROM RULE 144A GLOBAL NOTE

TO REGULATION S GLOBAL NOTE

Wells Fargo Bank, N.A. – DAPS REORG

Corporate Trust Operations

MAC N9300-070

600 South Fourth Street – 7th Floor

Minneapolis, MN 55415

Phone: (800) 344-5128

Fax: (866) 969-1290

Email: dapsreorg@wellsfargo.com

 

 

Re:      ECOLAB INC.

$[                                        ]

Reference is hereby made to the Indenture dated as of January 12, 2015 between Wells Fargo Bank, National Association (the “ Trustee ”), and Ecolab Inc. (the “ Company ”), as supplemented by that certain Seventh Supplemental Indenture, dated as of November 27, 2017, by and between the Trustee and the Company (as so supplemented, the “ Indenture ”).  Capitalized terms not defined in this Certificate shall have the meanings given to them in the Indenture.

This letter relates to $____________ principal amount of [2027 Notes][2047 Notes] represented by a beneficial interest in the Rule 144A Global Note (CUSIP No. [_]) held with the Depositary by or on behalf of transferor as beneficial owner (the “ Transferor ”).  The Transferor has requested an exchange or transfer of its interest for an interest in the Regulation S Global Note (CUSIP No. [_]).

In connection with such request and in respect of such Notes, the Transferor does hereby certify that such exchange or transfer has been effected in accordance with the transfer restrictions set forth in the Notes and (i) that, with respect to transfers made in reliance on Regulation S under the Securities Act:

(1)     the offer of the Notes was not made to a person in the United States;

(2)       (A)      at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States, or

(B)    the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States;

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(3)     no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and

(4)     the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

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This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the dealers.

 

Dated: ______________ __, ____

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EXHIBIT E

FORM OF TRANSFER CERTIFICATE FOR TRANSFER OR

EXCHANGE FROM TEMPORARY REGULATION S GLOBAL NOTE

TO RULE 144A GLOBAL NOTE

Wells Fargo Bank, N.A. – DAPS REORG

Corporate Trust Operations

MAC N9300-070

600 South Fourth Street – 7th Floor

Minneapolis, MN 55415

Phone: (800) 344-5128

Fax: (866) 969-1290

Email: dapsreorg@wellsfargo.com

 

 

Re:      ECOLAB INC.

$[                                        ]

Reference is hereby made to the Indenture dated as of January 12, 2015 between Wells Fargo Bank, National Association (the “ Trustee ”), and Ecolab Inc. (the “ Company ”), as supplemented by that certain Seventh Supplemental Indenture, dated as of November 27, 2017, by and between the Trustee and the Company (as so supplemented, the “ Indenture ”).  Capitalized terms not defined in this Certificate shall have the meanings given to them in the Indenture.

This letter relates to $______________ principal amount of [2027 Notes][2047 Notes] which are held in the form of the Temporary Regulation S Global Note (CUSIP No. [_]) with [Euroclear/Clearstream] (ISIN Code [_]) (Common Code [____]) through the Depositary by or on behalf of transferor as beneficial owner (the “ Transferor ”).  The Transferor has requested an exchange or transfer of its interest in such Notes for an interest in the Rule 144A Global Note (CUSIP No. [_]).

In connection with such request, and in respect of such Notes, the Transferor does hereby certify that such Notes are being transferred in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the “ Securities Act ”) to a transferee that the Transferor reasonably believes is purchasing the Notes for its own account or an account with respect to which the transferee exercises sole investment discretion and the transferee and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction.

This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the dealers of such Notes.

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Dated: ______________ __, ____

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EXHIBIT F

FORM OF CERTIFICATE OF BENEFICIAL OWNERSHIP

Re:      ECOLAB INC.

$[                                        ]

Reference is hereby made to the Indenture dated as of January 12, 2015 between Wells Fargo Bank, National Association (the “ Trustee ”), and Ecolab Inc. (the “ Company ”), as supplemented by that certain Seventh Supplemental Indenture, dated as of November 27, 2017, by and between the Trustee and the Company (as so supplemented, the “ Indenture ”).  Capitalized terms not defined in this Certificate shall have the meanings given to them in the Indenture.

This is to certify that as of the date hereof, and except as set forth below, the above-captioned Notes held by you for our account are beneficially owned by (a) non-U.S. person(s) or (b) U.S. person(s) who purchased the Notes in transactions which did not require registration under the Securities Act of 1933, as amended (the “ Securities Act ”).  As used in this paragraph, the term “U.S. person” has the meaning given to it by Regulation S under the Securities Act.

As used herein, “United States” means the United States of America (including the States and the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.

We undertake to advise you promptly in writing or via electronic communication on or prior to the date on which you intend to submit your certification relating to the Notes held by you for our account in accordance with your operating procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.

This certification excepts and does not relate to $__________ of such interest in the above Notes in respect of which we are not able to certify and as to which we understand exchange and delivery of definitive Notes (or, if relevant, exercise of any rights or collection of any interest) cannot be made until we do so certify.

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We understand that this certification is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification to any interested party in such proceedings.

Date:  ____ __, ____ 5

By: ____________________________

As, or as agent for, the beneficial owner(s) of the Notes to which this certificate relates.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

5           Not earlier than 15 days prior to the certification event to which the certification relates.

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Exhibit 4.5

 

 

Execution Version

 

 

 

$1,200,000,000

 

ECOLAB INC.

 

$500,000,000 3.250% Notes Due 2027

$700,000,000 3.950% Notes Due 2047

 

REGISTRATION RIGHTS AGREEMENT

 

November 27, 2017

 

Citigroup Global Markets Inc.

388 Greenwich Street

New York, New York 10013

 

Credit Suisse Securities (USA) LLC

Eleven Madison Avenue

New York, New York 10010-3629

 

J.P. Morgan Securities LLC

383 Madison Avenue

New York, New York 10179

 

Merrill Lynch, Pierce, Fenner & Smith

Incorporated

One Bryant Park

New York, New York 10036

 

MUFG Securities Americas Inc.

1221 Avenue of the Americas, 6 th Floor

New York, New York 10020

 

Ladies and Gentlemen:

 

Ecolab Inc., a Delaware corporation (the “ Company ”), proposes to (i) issue and sell to Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, J.P. Morgan Securities LLC and MUFG Securities Americas Inc., as representatives of the several initial purchasers (collectively, the “ Initial Purchasers ”), upon the terms set forth in a purchase agreement, dated November 16, 2017 (the “ Purchase Agreement ”), $500,000,000 aggregate principal amount of its 3.250% Notes Due 2027 (the “ 2027 Securities ”) and $325,000,000 aggregate principal amount of its 3.950% Notes Due 2047 (the “ 2047 New Money Securities ”) and (ii) offer (the “ Exchange Offer ”) the opportunity for eligible holders to exchange its issued and outstanding 5.500% Notes due 2041 for up to $375,000,000 aggregate principal amount of its 3.950% Notes due 2047 (the “ 2047 Exchange Offer Securities ” and, together with the 2047 New Money Securities, the “ 2047 Securities ” and, collectively with the 2027 Securities, the “ Initial Securities ”) in an amount described in the offering memorandum prepared in connection with the Exchange Offer. The Initial Securities will be issued pursuant to an indenture, dated as of January 12, 2015 (the “ Base Indenture ”), between the Company and Wells Fargo Bank, National Association (the “ Trustee ”), as amended by a seventh supplemental indenture, to be dated the date of first issuance of the 2027 Securities and the 2047 New Money Securities (the “ Supplemental Indenture ” and, together with the Base Indenture, the “ Indenture ”) between the Company and the Trustee. As an inducement to the Initial Purchasers and the dealer managers (the “ Dealer Managers ”) acting in connection with the Exchange Offer, the Company agrees with the Initial Purchasers and the Dealer Managers, for the benefit of the

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holders of the Initial Securities (including, without limitation, the Initial Purchasers), the Exchange Securities (as defined below) and the Private Exchange Securities (as defined below) (collectively the “ Holders ”), as follows:

 

1.      Registered Exchange Offer .

 

The Company shall, at its own cost, prepare and file with the Securities and Exchange Commission (the “ Commission ”) a registration statement (the “ Exchange Offer Registration Statement ”) on an appropriate form under the Securities Act of 1933, as amended (the “ Securities Act ”), with respect to a proposed offer (the “ Registered Exchange Offer ”) to the Holders of Transfer Restricted Securities (as defined below), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for (a) the 2027 Securities, a like aggregate principal amount of debt securities (the “ 2027 Exchange Securities ”) and (b) the 2047 Securities, a like aggregate principal amount of debt securities (the “ 2047 Exchange Securities ” and, together with the 2027 Exchange Securities, the “ Exchange Securities ”) of the Company issued under the Indenture and identical in all material respects to the applicable series of Initial Securities (except for the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereof) that would be registered under the Securities Act. The Company shall use commercially reasonable efforts to cause such Exchange Offer Registration Statement to be declared effective under the Securities Act within 270 days (or if the 270th day is not a business day, the first business day thereafter) (the “ Registered Exchange Offer Effectiveness Deadline ”) after the date of original issue of the 2027 Securities and the 2047 New Money Securities (the “ Issue Date ”) and shall keep the Exchange Offer Registration Statement effective for not less than 20 business days (or longer, if required by applicable law) including the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “ Exchange Offer Registration Period ”).

 

If the Company effects the Registered Exchange Offer, the Company will be entitled to close the Registered Exchange Offer 20 business days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not properly withdrawn in accordance with the terms of the Registered Exchange Offer.

 

Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer and use commercially reasonable efforts to complete the Registered Exchange Offer not later than 360 days after the Issue Date (or if such 360th day is not a business day, the next succeeding business day) (the “ Registered Exchange Offer Completion Deadline ”), it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange Initial Securities for the applicable series of Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act.

 

The Company acknowledges that, pursuant to current interpretations by the Commission’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an “ Exchanging Dealer ”), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the “Procedures for Tendering” (or other appropriate) section and the “Purpose of Exchange Offer” (or other appropriate) section, and (c) Annex C hereto in the “Plan of Distribution” section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities acquired in exchange for Initial Securities constituting any portion of an unsold allotment is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale.

 

The Company shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided ,  

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however , that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(i) below) and (ii) the Company shall use commercially reasonable efforts to make such prospectus, and any amendment or supplement thereto, available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer.

 

If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds 2027 Securities or 2047 New Money Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the “ Private Exchange ”) for such 2027 Securities and 2047 New Money Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects (including the existence of restrictions on transfer under the Securities Act and the securities laws of the several states of the United States, but excluding provisions relating to the matters described in Section 6 hereof) to such applicable 2027 Securities and 2047 New Money Securities (respectively, the “ 2027 Private Exchange Securities ” and “ 2047 Private Exchange Securities ” and, together, the “ Private Exchange Securities ”).  The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the “ Securities ”.

 

In connection with the Registered Exchange Offer, the Company shall:

 

a)      mail or deliver to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;

 

b)      keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the date notice thereof is mailed or delivered to the Holders;

 

c)      utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;

 

d)      permit Holders to withdraw tendered Initial Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and

 

e)      otherwise comply with all applicable laws.

 

As soon as reasonably practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:

 

x)      accept for exchange all the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;

 

y)      deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and

 

z)      cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange.

 

Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Initial Securities being exchanged by such Holder, and any Exchange Securities received by such Holder, have been or will be acquired in the ordinary course of business, (ii) such Holder is not engaged and does not intend to engage in and will have no arrangements or understanding with any person to participate in the distribution of the Initial Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not

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engaged in, and does not intend to engage in, a distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities.

 

2.       Shelf Registration . If, (i) because of any change in law or in applicable interpretations thereof by the staff of the Commission, the Company is not permitted to effect a Registered Exchange Offer and would otherwise be required to effect a Registered Exchange Offer pursuant to Section 1 hereof, (ii) the Registered Exchange Offer is not consummated by the Registered Exchange Offer Completion Deadline, (iii) any Initial Purchaser so requests in writing with respect to the Initial Securities not eligible to be exchanged for Exchange Securities in the Registered Exchange Offer as a result of being held by such Initial Purchaser and held by it following consummation of the Registered Exchange Offer or (iv) any Holder (other than an Exchanging Dealer) notifies the Company prior to the 20th day following completion of the Registered Exchange Offer that it is prohibited by applicable law or Commission policy from participating in the Registered Exchange Offer (other than as a result of the status of any such Holder as an “affiliate” of the Company) or, in the case of any Holder (other than an Exchanging Dealer) that participates in the Registered Exchange Offer, such Holder does not receive freely tradeable Exchange Securities on the date of the exchange, the Company shall take the following actions:

 

a)      The Company shall, at its cost, file with the Commission and thereafter shall use commercially reasonable efforts to cause to be declared effective (unless it becomes effective automatically upon filing) a registration statement (the “ Shelf Registration Statement ” and, together with the Exchange Offer Registration Statement, a “ Registration Statement ”) on an appropriate form under the Securities Act relating to the offer and sale of the Transfer Restricted Securities by the Holders thereof from time to time in accordance with the methods of distribution set forth in the Shelf Registration Statement and Rule 415 under the Securities Act (hereinafter, the “ Shelf Registration ”) within 210 days after the date, if any on which the Company becomes obligated to file the Shelf Registration Statement (or if such 210th day is not a business day, the next succeeding business day) (the “ Shelf Registration Effectiveness Deadline ”) or, if permitted by Rule 430B under the Securities Act, otherwise designate an existing effective Shelf Registration Statement for use by the Holders as a Shelf Registration Statement relating to the resales of the Initial Securities; provided ,   however , that no Holder (other than an Initial Purchaser) shall be entitled to have the Securities held by it covered by such Shelf Registration Statement unless such Holder agrees in writing to be bound by all the provisions of this Registration Rights Agreement (this “ Agreement ”) applicable to such Holder.

 

b)      The Company shall use commercially reasonable efforts to keep the Shelf Registration Statement continuously effective in order to permit the prospectus included therein to be lawfully delivered by the Holders of the relevant Securities, for a period of two years (or for such longer period if extended pursuant to Section 3(i) below) from the Issue Date or such shorter period that will terminate when all the Securities covered by the Shelf Registration Statement (i) have been sold pursuant thereto or (ii) have been distributed to the public pursuant to Rule 144 under the Securities Act (the “ Shelf Registration Period ”).

3.       Registration Procedures . In connection with any Shelf Registration contemplated by Section 2 hereof and, to the extent applicable, any Registered Exchange Offer contemplated by Section 1 hereof, the following provisions shall apply:

 

a)      The Company shall (i) furnish to each Initial Purchaser and Dealer Manager, prior to the filing thereof with the Commission, a copy of the Registration Statement and each amendment thereof and each supplement, if any, to the prospectus included therein and reflect in each such document, when so filed with the Commission, such comments as any Initial Purchaser or Dealer Manager reasonably may propose; (ii) include the information set forth in Annex A hereto on the cover, in Annex B hereto in the “Procedures for Tendering” (or other appropriate) section and the “Purpose of Exchange Offer” (or other appropriate) section and in Annex C hereto in the “Plan of Distribution” section of the prospectus forming a part of the Exchange Offer Registration Statement and include the information set forth in Annex D hereto in the Letter of Transmittal delivered pursuant to the Registered Exchange Offer, in each case subject to any change, addition, deletion or moving of such disclosure requested by the staff of the Commission; (iii) if reasonably requested by an Initial Purchaser, include the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in the prospectus forming a part of the Exchange Offer Registration

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Statement; (iv) include within the prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the Commission with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of Exchange Securities received by such broker-dealer in the Registered Exchange Offer (a “Participating Broker-Dealer”); and (v) in the case of a Shelf Registration Statement, include in the prospectus included in the Shelf Registration Statement (or, if permitted by Commission Rule 430B(b), in a prospectus supplement that becomes a part thereof pursuant to Commission Rule 430B(f)) that is delivered to any Holder pursuant to Section 3(d) , the names of the Holders, who propose to sell Securities pursuant to the Shelf Registration Statement, as selling securityholders.

b)      The Company shall give written notice to the Initial Purchasers, the Dealer Managers, the Holders and any Participating Broker-Dealer from whom the Company has received prior written notice that it will be a Participating Broker-Dealer in the Registered Exchange Offer (which notice pursuant to clauses (ii) through (v) hereof shall be accompanied by an instruction to suspend the use of the prospectus until the requisite changes have been made):

 

(i)      when the Registration Statement or any amendment thereto has been filed with the Commission and when the Registration Statement or any post-effective amendment thereto has become effective;

 

(ii)      of any request by the Commission for amendments or supplements to the Registration Statement or the prospectus included therein or for additional information;

 

(iii)      of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, of the issuance by the Commission of a notification of objection to the use of the form on which the Registration Statement has been filed, and of the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Commission Rule 405;

 

(iv)      of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and

 

(v)      of the happening of any event that requires the Company to make changes in the Registration Statement or the prospectus in order that the Registration Statement or the prospectus do not contain an untrue statement of a material fact nor omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the prospectus, in light of the circumstances under which they were made) not misleading.

 

c)      The Company shall use commercially reasonable efforts to obtain the withdrawal at the earliest possible time, of any order suspending the effectiveness of the Registration Statement.

 

d)      If not otherwise available on the Commission’s Electronic Data Gathering, Analysis and Retrieval (“ EDGAR ”) System or similar system, upon the written request of a Holder included within the coverage of the Shelf Registration, the Company shall furnish to each such Holder, without charge, at least one copy of the Shelf Registration Statement and any post-effective amendment or supplement, thereto, including financial statements and schedules, and, if the Holder so requests in writing, all exhibits thereto (including those, if any, incorporated by reference). The Company shall not, without the prior consent of the Initial Purchasers, make any offer relating to the Securities that would constitute a “free writing prospectus,” as defined in Commission Rule 405.

 

e)   If not otherwise available on the Commission’s EDGAR System or similar system, upon the written request of any Holder, the Company shall deliver to each Exchanging Dealer, each Initial Purchaser and each Dealer Manager, and to any other Holder who so requests in writing, without charge, at least one

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copy of the Exchange Offer Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and, if any Initial Purchaser or any such Holder requests, all exhibits thereto (including those incorporated by reference).

 

f)   The Company shall, during the Shelf Registration Period, deliver to each Holder of Securities included within the coverage of the Shelf Registration, without charge, as many copies of the prospectus (including each preliminary prospectus) included in the Shelf Registration Statement and any amendment or supplement thereto as such person may reasonably request. The Company consents, subject to the provisions of this Agreement, to the use of the prospectus or any amendment or supplement thereto by each of the selling Holders of the Securities in connection with the offering and sale of the Securities covered by the prospectus, or any amendment or supplement thereto, included in the Shelf Registration Statement.

 

g)   The Company shall deliver to each Initial Purchaser, each Dealer Manager, any Exchanging Dealer, any Participating Broker-Dealer and such other persons required to deliver a prospectus following the Registered Exchange Offer, without charge, as many copies of the final prospectus included in the Exchange Offer Registration Statement and any amendment or supplement thereto as such persons may reasonably request. The Company consents, subject to the provisions of this Agreement, to the use of the prospectus or any amendment or supplement thereto by any Initial Purchaser, if necessary, any Participating Broker-Dealer and such other persons required to deliver a prospectus following the Registered Exchange Offer in connection with the offering and sale of the Exchange Securities covered by the prospectus, or any amendment or supplement thereto, included in such Exchange Offer Registration Statement.

h)   The Company shall cooperate with the Holders of the Securities to facilitate the timely preparation and delivery of certificates representing the Securities to be sold pursuant to any Registration Statement free of any restrictive legends and in such denominations and registered in such names as the Holders may request a reasonable period of time prior to sales of the Securities pursuant to such Registration Statement.

 

i)   Upon the occurrence of any event contemplated by paragraphs (ii)  through (v) of Section 3(b) above during the period for which the Company is required to maintain an effective Registration Statement, the Company shall promptly prepare and file a post-effective amendment to the Registration Statement or a supplement to the related prospectus and any other required document so that, as thereafter delivered to Holders of the Securities or purchasers of Securities, the prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company shall also promptly provide notice to the Initial Purchasers, the Holders and any known Participating Broker-Dealer of its determination (which determination shall have been made by the Company’s board of directors for a bona fide business purpose) to suspend the availability of a Registration Statement and the related prospectus because the continued effectiveness and use of such Registration Statement and prospectus included therein would require the disclosure of confidential information or interfere with any financing, acquisition, corporate reorganization or other material transaction or development involving the Issuer or any of its consolidated subsidiaries (it being understood that such notice may disclose only the existence of such determination and need not disclose the nature of the basis therefore, which may be kept confidential for such period as may reasonably be required for bona fide business reasons). If the Company notifies the Initial Purchasers, the Holders of the Securities and any known Participating Broker-Dealer in accordance with paragraphs (ii) through (v) of Section 3(b) above to suspend the use of the prospectus until the requisite changes to the prospectus have been made, then the Initial Purchasers, the Holders of the Securities and any such Participating Broker-Dealers shall suspend use of such prospectus, and the period of effectiveness of the Shelf Registration Statement provided for in Section 2(b) above and the Exchange Offer Registration Statement provided for in Section 1 above shall each be extended by the number of days from and including the date of the giving of such notice to and including the date when the Initial Purchasers, the Holders of the Securities and any known Participating Broker-Dealer shall have received such amended or supplemented prospectus or notice that the use of such prospectus may be resumed, as applicable, pursuant to this Section 3(i) . During the Shelf Registration Period, the Company will prior to the three‑year expiration of that Shelf Registration Statement file, and use commercially reasonable efforts to cause to be declared effective (unless it becomes effective automatically upon filing) within a period that avoids any interruption in the ability of

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Holders of Securities covered by the expiring Shelf Registration Statement to make registered dispositions, a new registration statement relating to the Securities, which shall be deemed the “Shelf Registration Statement” for purposes of this Agreement.

 

j)       Not later than the effective date of the applicable Registration Statement, the Company will provide a CUSIP number for the Initial Securities or the Exchange Securities, as the case may be, and provide the applicable trustee with printed certificates for the Initial Securities or the Exchange Securities, as the case may be, in a form eligible for deposit with The Depository Trust Company.

 

k)      The Company will comply in all material respects with all rules and regulations of the Commission to the extent and so long as they are applicable to the Registered Exchange Offer or the Shelf Registration.

 

l)       The Company shall cause the Indenture to be qualified under the Trust Indenture Act of 1939, as amended, in a timely manner and containing such changes, if any, as shall be necessary for such qualification. In the event that such qualification would require the appointment of a new trustee under the Indenture, the Company shall appoint a new trustee thereunder pursuant to the applicable provisions of the Indenture.

 

m)     The Company may require each Holder of Securities to be sold pursuant to the Shelf Registration Statement to furnish to the Company such information regarding the Holder and the distribution of the Securities as the Company may from time to time reasonably require for inclusion in the Shelf Registration Statement, and the Company may exclude from such registration the Securities of any Holder that fails to furnish such information within a reasonable time after receiving such request.

n)      The Company will use commercially reasonable efforts to (a) if the Initial Securities have been rated prior to the initial sale of such Initial Securities, confirm such ratings will apply to the Securities covered by a Registration Statement, or (b) if the Initial Securities were not previously rated, cause the Securities covered by a Registration Statement to be rated with the appropriate rating agencies, if so requested by Holders of a majority in aggregate principal amount of Securities covered by such Registration Statement, or by the managing underwriters, if any.

o)      The Company shall use commercially reasonable efforts to take all other steps necessary to effect the registration of the Securities covered by a Registration Statement contemplated hereby.

 

4.       Registration Expenses . The Company shall bear all fees and expenses incurred in connection with the performance of its obligations under Sections 1 through 3 hereof (including the reasonable fees and expenses, if any, of Mayer Brown LLP, counsel for the Initial Purchasers and Dealer Managers, incurred in connection with the Registered Exchange Offer), whether or not the Registered Exchange Offer or a Shelf Registration is filed or becomes effective, and, in the event of a Shelf Registration, shall bear or reimburse the Holders of the Securities covered thereby for the reasonable fees and disbursements of one firm of counsel designated by the Holders of a majority in principal amount of the Initial Securities covered thereby to act as counsel for the Holders of the Initial Securities in connection therewith.

 

5.       Indemnification .

 

a)      The Company agrees to indemnify and hold harmless each Holder of the Securities, any Participating Broker-Dealer, and each person, if any, who controls such Holder or such Participating Broker-Dealer within the meaning of the Securities Act or the Exchange Act (each Holder, any Participating Broker-Dealer and such controlling persons are referred to collectively as the “ Holder Indemnified Parties ”) from and against any losses, claims, damages or liabilities (“ Losses ”), joint or several, or any actions in respect thereof (including, but not limited to, any Losses or actions relating to purchases and sales of the Securities) to which each Holder Indemnified Party may become subject under the Securities Act, the Exchange Act or otherwise, insofar as Losses or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement or prospectus or in any amendment or supplement thereto or in any preliminary prospectus or “issuer free writing prospectus,” as defined in

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Commission Rule 433 (“ Issuer FWP ”), relating to a Shelf Registration, or arise out of, or are based upon, the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and shall reimburse, as incurred, the Holder Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such Losses or action in respect thereof; provided ,   however , that (i) the Company shall not be liable in any such case to the extent that such loss, claim, damage or liability arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in a Registration Statement or prospectus or in any amendment or supplement thereto or in any preliminary prospectus or Issuer FWP relating to a Shelf Registration in reliance upon and in conformity with written information pertaining to such Holder Indemnified Party and furnished to the Company by or on behalf of such Holder Indemnified Party specifically for inclusion therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder or Participating Broker-Dealer from whom the person asserting any such Losses purchased the Securities concerned, to the extent that a prospectus relating to such Securities was required to be delivered (including through satisfaction of the conditions of Commission Rule 172) by such Holder Indemnified Party under the Securities Act in connection with such purchase and any such loss, claim, damage or liability of such Holder Indemnified Party results from the fact that there was not conveyed to such person, at or prior to the time of the sale of such Securities to such person, an amended or supplemented prospectus or, if permitted by Section 3(d) , an Issuer FWP correcting such untrue statement or omission or alleged untrue statement or omission if the Company had previously furnished copies thereof to such Holder or Participating Broker-Dealer; provided further ,   however , that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Holder Indemnified Party.

 

b)      Each Holder and each Participating Broker-Dealer, severally and not jointly, will indemnify and hold harmless the Company, each of its directors and each officer who signed the Registration Statement and each other person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act (collectively, the “ Company Indemnified Parties ” and together with the Holder Indemnified Parties, the “ Indemnified Parties ”) from and against any Losses or any actions in respect thereof, to which any Company Indemnified Party may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such Losses or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement or prospectus or in any amendment or supplement thereto or in any preliminary prospectus or Issuer FWP relating to a Shelf Registration, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder or Participating Broker-Dealer specifically for inclusion therein; and, subject to the limitation set forth immediately preceding this clause, shall reimburse, as incurred, any Company Indemnified Party for any legal or other expenses reasonably incurred by such Company Indemnified Party in connection with investigating or defending any Losses or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder or Participating Broker-Dealer may otherwise have to the Company or any of its controlling persons.

 

c)      Promptly after receipt by an Indemnified Party under this Section 5 of notice of the commencement of any action or proceeding (including a governmental investigation), such Indemnified Party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 5 , notify the indemnifying party in writing of the commencement thereof; but the failure to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have under subsection (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an Indemnified Party otherwise than under subsection (a) or (b) above. In case any such action is brought against any Indemnified Party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party (who

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shall not, except with the consent of the Indemnified Party, be counsel to the indemnifying party), and after notice from the indemnifying party to such Indemnified Party of its election so to assume the defense thereof the indemnifying party will not be liable to such Indemnified Party under this Section 5 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such Indemnified Party in connection with the defense thereof. No indemnifying party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending or threatened action in respect of which any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party unless such settlement (i) includes an unconditional release of such Indemnified Party from all liability on any claims that are the subject matter of such action, and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party.

 

d)      If the indemnification provided for in this Section 5 is unavailable or insufficient to hold harmless an Indemnified Party under subsections (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such Indemnified Party as a result of the Losses (or actions in respect thereof) referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the Indemnified Party on the other from the exchange of the Securities, pursuant to the Registered Exchange Offer, or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party or parties on the one hand and the Indemnified Party on the other in connection with the statements or omissions that resulted in such Losses (or actions in respect thereof) as well as any other relevant equitable considerations. The relative fault of the parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the Indemnified Party, on the other, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid by an Indemnified Party as a result of the Losses referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any action or claim which is the subject of this subsection (d) . Notwithstanding any other provision of this Section 5(d) , the Holders of the Securities or Participating Broker-Dealer shall not be required to contribute any amount in excess of the amount by which the net proceeds received by such Holders or Participating Broker-Dealers from the sale of the Securities pursuant to a Registration Statement exceeds the amount of damages which such Holders or Participating Broker-Dealers have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

 

e)      The agreements contained in this Section 5 shall survive the sale of the Securities pursuant to a Registration Statement and shall remain in full force and effect, regardless of any termination or cancellation of this Agreement or any investigation made by or on behalf of any Indemnified Party.

 

6.       Additional Interest Under Certain Circumstances .

a)      Additional interest (the “ Additional Interest ”) with respect to the Initial Securities shall be assessed as follows if any of the following events occur (each such event in clauses (i) through (iii) below a “ Registration Default ”):

 

(i)       If neither the Registered Exchange Offer is completed by the Registered Exchange Offer Completion Deadline nor the Shelf Registration Statement has become effective by the Shelf Registration Effectiveness Deadline;

 

(ii)      If the Exchange Offer Registration Statement has become effective but ceases to be effective or usable prior to the consummation of the Registered Exchange Offer (unless such ineffectiveness is cured within 365 days after the Issue Date (or if such 365th day is not a business day, the next succeeding business day)); or

 

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(iii)     If the Shelf Registration Statement, if applicable, has been declared effective but ceases to be effective or usable for more than 120 days, whether or not consecutive, during any twelve-month period.

 

Additional Interest (in addition to stated interest on the Securities) shall accrue on the Initial Securities over and above the interest set forth in the title of the Securities from and including the date on which any such Registration Default shall occur to but excluding the date on which all such Registration Defaults have been cured, at a rate of 0.25% per annum. Following the cure of all Registration Defaults, the accrual of Additional Interest will cease and the interest rate will revert to the applicable original rate. Any additional interest will be the exclusive remedy, monetary or otherwise, available to any Holder or affected New Notes with respect to any Registration Default. In no event shall the Company be obligated to pay Additional Interest for more than one Registration Default at any one time.

 

b)      A Registration Default referred to in Section 6(a) hereof shall be deemed not to have occurred and be continuing in relation to a Shelf Registration Statement or the related prospectus if (i) such Registration Default has occurred solely as a result of (x) the filing of a post-effective amendment to such Shelf Registration Statement to incorporate annual audited financial information with respect to the Company where such post-effective amendment is not yet effective and needs to be declared effective to permit Holders to use the related prospectus or (y) other material events, with respect to the Company that would need to be described in such Shelf Registration Statement or the related prospectus and (ii) in the case of clause (y) , the Company is proceeding promptly and in good faith to amend or supplement such Shelf Registration Statement and related prospectus to describe such events; provided ,   however , that in any case if such Registration Default occurs for a continuous period in excess of 30 days, Additional Interest shall be payable in accordance with the above paragraph from the day such Registration Default occurs until such Registration Default is cured.

 

c)      Any amounts of Additional Interest due pursuant to Section 6(a) above will be payable in cash on the regular interest payment dates with respect to the Initial Securities. The amount of Additional Interest will be determined by multiplying the applicable Additional Interest rate by the principal amount of the Initial Securities, multiplied by a fraction, the numerator of which is the number of days such Additional Interest rate was applicable during such period (determined on the basis of a 360-day year comprised of twelve 30-day months), and the denominator of which is 360. Any accrued and unpaid interest (including Additional Interest) on any of the Initial Securities shall, upon the issuance of an Exchange Security in exchange therefore, cease to be payable to the Holder thereof but such accrued and unpaid interest (including Additional Interest) shall be payable on the next interest payment date for such Exchange Security to the Holder thereof on the related record date. Any Additional Interest payable by the Company shall constitute liquidated damages and shall be the exclusive remedy, monetary or otherwise, available to Holders with respect to a Registration Default.

 

d)      “ Transfer Restricted Securities ” means each Security until (i) the date on which such Transfer Restricted Security has been exchanged by a person other than a broker-dealer for a freely transferable Exchange Security in the Registered Exchange Offer, (ii) following the exchange by a broker-dealer in the Registered Exchange Offer of an Initial Security for an Exchange Note, the date on which such Exchange Note is sold to a purchaser who receives from such broker-dealer on or prior to the date of such sale a copy of the prospectus contained in the Exchange Offer Registration Statement, (iii) the date on which such Initial Security has been effectively registered under the Securities Act and disposed of in accordance with the Shelf Registration Statement and (iv) the earliest date that is no less than two years after the Issue Date and on which all such Securities (except for Securities held by an affiliate of the Company) are no longer subject to any restrictions on transfer under the Securities Act including those pursuant to Rule 144.

 

7.     Rules 144 and 144A . The Company shall, to the extent it is required to do so under the Exchange Act, use commercially reasonable efforts to file the reports required to be filed by it under the Exchange Act in a timely manner and, if at any time the Company is not required to file such reports, it will, upon the request of any Holder of Initial Securities, use commercially reasonable efforts to make publicly available other information so long as necessary to permit sales of their securities pursuant to Rules 144 and 144A. The Company covenants that it will take such further action as any Holder of Initial Securities may reasonably request, all to the extent required from time to time to enable

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such Holder to sell Initial Securities without registration under the Securities Act within the limitation of the exemptions provided by Rules 144 and 144A (including the requirements of Rule 144A(d)(4)).  Upon the request of any Holder of Initial Securities, the Company shall deliver to such Holder a written statement as to whether it has complied with such requirements. Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to require the Company to register any of its securities pursuant to the Exchange Act.

 

8.     Miscellaneous .

 

a)       Amendments and Waivers . The provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, except by the Company and the written consent of the Holders of a majority in principal amount of the Securities affected by such amendment, modification, supplement, waiver or consents.

 

b)       Notices . All notices and other communications provided for or permitted hereunder shall be made in writing by hand delivery, first-class mail, facsimile transmission, or air courier which guarantees overnight delivery:

 

(i)    if to a Holder, at the most current address given by such Holder to the Company.

 

(ii)   if to the Initial Purchasers:

 

Citigroup Global Markets Inc.

388 Greenwich Street

New York, New York 10013

Attention: General Counsel

Facsimile: (646) 291-1469

 

Credit Suisse Securities (USA) LLC

Eleven Madison Avenue

New York, New York 10010-3629

Attention: Transaction Advisory Group

Facsimile: (212) 325-4296

 

J.P. Morgan Securities LLC

383 Madison Avenue

New York, New York 10179

Attention: Investment Grade Syndicate Desk – 3rd Floor

Facsimile: (212) 834-6081

 

Merrill Lynch, Pierce, Fenner & Smith

Incorporated

214 North Tryon Street, 14th Floor

Charlotte, North Carolina 28255

Attention: Liability Management Group

Facsimile: (704) 719-8385

 

MUFG Securities Americas Inc.

1221 Avenue of the Americas, 6 th Floor

New York, New York 10020

Attention: Capital Markets Group

Facsimile: (212) 405-7440

 

with a copy to:

 

Mayer Brown LLP

71 S. Wacker Drive