BIRK 6-K
Birkenstock Holding plc (BIRK)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16 OR 15d-16 UNDER THE
SECURITIES EXCHANGE ACT OF 1934
For the month of June 2026
Commission File Number 001-41836
Birkenstock Holding plc
(Translation of registrant’s name into English)
1-2 Berkeley Square
London W1J 6EA
United Kingdom
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F. Form 20-F ☒ Form 40-F ☐
Information Contained in this Report on Form 6-K
On June 19, 2026, Birkenstock Group B.V. & Co. KG (the “Issuer”), an indirect wholly-owned subsidiary of Birkenstock Holding plc (NYSE: BIRK) (the “Company” and, together with its subsidiaries, the “Group”), closed the previously announced offering (the “Offering”) of €900,000,000 in aggregate principal amount of 4.500% Senior Notes due 2033 (the “Notes”).
The Notes and the related guarantees were offered in the United States only to persons reasonably believed to be “qualified institutional buyers” in reliance on Rule 144A under the U.S. Securities Act of 1933, as amended (the “Securities Act”), and outside of the United States in offshore transactions to persons other than “U.S. persons” in compliance with Regulation S under the Securities Act. The Notes and the related guarantees have not been and will not be registered under the Securities Act or the securities laws of any other jurisdiction and may not be offered or sold in the United States except pursuant to exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.
The Notes were issued under an indenture (the “Indenture”) dated as of June 19, 2026, among the Issuer, the guarantors and GLAS Trust Company LLC as trustee, registrar, paying agent and transfer agent. Application will be made for the Notes to be admitted to the Official List of The International Stock Exchange.
The gross proceeds from the Offering will be used, directly or indirectly, (i) to redeem the €428.5 million of outstanding 5.25% Senior Notes due 2029 issued by Birkenstock Financing S.à r.l. (the “Existing Notes”) in full at par, including any accrued and unpaid interest thereon, on June 26, 2026, (ii) for (a) financing any repurchases that the Company may, at its discretion, undertake of its ordinary shares as announced on June 15, 2026 or (b) to the extent such share repurchases are commercially unreasonable or otherwise not feasible or preferable, refinancing other existing indebtedness of the Company and its subsidiaries and general corporate purposes and (iii) to pay fees and expenses associated with the foregoing transactions and certain amendments to the Group’s term and revolving facilities agreement.
Interest and Maturity. The Notes bear interest at a rate of 4.500% per annum, payable semi-annually in arrears on June 15 and December 15 of each year, commencing on December 15, 2026. The Notes will mature on June 15, 2033.
Ranking. The Notes are senior unsecured obligations of the Issuer and (i) rank pari passu in right of payment with all of the Issuer’s existing and future senior indebtedness, including the Existing Facilities (as defined in the Indenture); (ii) rank senior in right of payment to all of the Issuer’s existing and future indebtedness that is expressly subordinated in right of payment to the Notes; (iii) are effectively subordinated to all of the Issuer’s existing and future indebtedness that is secured by liens, to the extent of the value of the assets securing such indebtedness; and (iv) are structurally subordinated to all existing and future indebtedness and other liabilities of the Issuer’s subsidiaries that do not guarantee the Notes.
Security. The Notes and the related guarantees are unsecured.
Guarantors. The Notes were guaranteed on a senior unsecured basis by the following entities: Birkenstock Limited Partner S.à r.l., Birkenstock US BidCo, Inc., Birkenstock Components GmbH, Birkenstock digital GmbH, Birkenstock Europe GmbH, Birkenstock Global Sales GmbH, Birkenstock IP GmbH, Birkenstock Productions Hessen GmbH, Birkenstock Productions Rheinland-Pfalz GmbH, Birkenstock Productions Sachsen GmbH, Birkenstock USA GP, LLC, Birkenstock USA, LP and Birkenstock USA Digital LLC.
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Covenants. The terms of the Indenture, among other things, limit, subject to a number of important exceptions and qualifications, the ability of the Issuer and the Guarantors to create or incur certain liens and to consolidate or merge with other entities.
Optional Redemption. At any time prior to June 15, 2029, the Issuer may redeem all or a portion of the Notes at a redemption price equal to 100% of the principal amount redeemed, plus accrued and unpaid interest and additional amounts, if any, plus a “make-whole” premium. At any time prior to June 15, 2029, the Issuer may also redeem up to 40% of the aggregate principal amount of the Notes with the net proceeds of certain equity offerings at a redemption price equal to 104.500% of the principal amount redeemed, plus accrued and unpaid interest and additional amounts, if any. In addition, at any time prior to June 15, 2029, the Issuer may redeem up to 10% of the original aggregate principal amount of the Notes during each calendar year at a redemption price equal to 103% of the principal amount redeemed, plus accrued and unpaid interest, if any, subject to a carry-forward and/or carry-back of the relevant amounts. At any time on or after June 15, 2029, the Issuer may redeem all or a portion of the Notes at a redemption price equal to: (i) 102.250%, if redeemed during the twelve-month period beginning on June 15, 2029; (ii) 101.125%, if redeemed during the twelve-month period beginning on June 15, 2030; and (iii) 100.000%, if redeemed on June 15, 2031 or thereafter, in each case plus accrued and unpaid interest, if any, up to, but excluding the redemption date. The Issuer may also redeem all, but not less than all, of the Notes at 100% of their principal amount, plus accrued and unpaid interest and additional amounts, if any, upon the occurrence of certain changes in applicable tax law. Upon the occurrence of a Change of Control Trigger Event (as defined in the Indenture), each holder of Notes may require the Issuer to repurchase all or a portion of the Notes at a price equal to 101% of their principal amount plus accrued and unpaid interest and additional amounts, if any, to, but excluding, the redemption date.
Events of Default. The Indenture also provides for customary events of default.
The foregoing description of the Indenture does not purport to be complete and is qualified in its entirety by reference to the full text of the Indenture, a copy of which is filed herewith as Exhibit 4.1 and is incorporated herein by reference.
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Incorporation by Reference
The information in this Report on Form 6-K (including Exhibit 4.1 hereto) shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific reference in such a filing.
The information in Exhibit 4.1 hereto is also incorporated by reference into the Company’s registration statements on Form F-3 (File No. 333-284905), filed with the U.S. Securities and Exchange Commission (the "SEC") on February 13, 2025, and Form S-8 (File No. 333-274968), filed with the SEC on October 13, 2023, in each case to be a part thereof from the date on which this report is submitted, to the extent not superseded by documents or reports subsequently filed or furnished.
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Exhibit Index
Exhibit Number |
Description |
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Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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Birkenstock Holding plc |
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Date: June 22, 2026 |
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By:_/s/ Ruth Kennedy____________ |
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Name: Ruth Kennedy |
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Title: Director |
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Execution Version
Birkenstock Group B.V. & Co. KG,
as Issuer
The Guarantors named herein
Senior Notes
__________________
SENIOR NOTES INDENTURE
Dated as of June 19, 2026
__________________
GLAS Trust Company LLC,
as Trustee
and
GLAS Trust Company LLC,
as Principal Paying Agent, Transfer Agent and Registrar
______________________________________________________________________________
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE 1
Section 1.01 Definitions 1
Section 1.02 Other Definitions 56
Section 1.03 Rules of Construction 57
ARTICLE 2 THE NOTES 58
Section 2.01 Form and Dating 58
Section 2.02 Execution and Authentication 60
Section 2.03 Registrar and Paying Agent 61
Section 2.04 Paying Agent to Hold Money 62
Section 2.05 Holder Lists 62
Section 2.06 Transfer and Exchange 63
Section 2.07 Replacement Notes 74
Section 2.08 Outstanding Notes 74
Section 2.09 Acts by Holders 75
Section 2.10 Temporary Notes 75
Section 2.11 Cancellation 75
Section 2.12 Defaulted Interest 76
Section 2.13 Additional Amounts 76
Section 2.14 Currency Indemnity and Calculation of
Euro-Denominated Restrictions 79
Section 2.15 Agents 80
ARTICLE 3 REDEMPTION AND PREPAYMENT 81
Section 3.01 Notices to Trustee 81
Section 3.02 Selection of Notes to Be Redeemed or Purchased 82
Section 3.03 Notice of Redemption 82
Section 3.04 Effect of Notice of Redemption 83
Section 3.05 Deposit of Redemption or Purchase Price 84
Section 3.06 Notes Redeemed or Purchased in Part 85
Section 3.07 Mandatory Redemption or Sinking Fund 85
Section 3.08 Redemption for Taxation Reasons 85
ARTICLE 4 COVENANTS 86
Section 4.01 Payment of Notes 86
Section 4.02 Reports 87
Section 4.03 Compliance Certificates 89
Section 4.04 Suspension of Guarantees on Achievement of
Investment Grade Status 89
Section 4.05 Limitation on Liens 90
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Section 4.06 Change of Control 90
Section 4.07 Limitation on Guarantees of Indebtedness 92
Section 4.08 Financial and Other Calculations 93
ARTICLE 5 SUCCESSORS 98
Section 5.01 Merger and Consolidation 98
ARTICLE 6 DEFAULTS AND REMEDIES 100
Section 6.01 Events of Default 100
Section 6.02 Acceleration 102
Section 6.03 Other Remedies 104
Section 6.04 Waiver of Past Defaults 104
Section 6.05 Control by Majority 105
Section 6.06 Limitation on Suits 105
Section 6.07 Rights of Holders to Receive Payment 106
Section 6.08 Collection Suit by Trustee 106
Section 6.09 Trustee May File Proofs of Claim 106
Section 6.10 Priorities 107
Section 6.11 Undertaking for Costs 107
Section 6.12 Stay, Extension and Usury Laws 107
Section 6.13 Enforcement by Holders 108
ARTICLE 7 THE TRUSTEE AND AGENTS 108
Section 7.01 Duties of Trustee 108
Section 7.02 Rights of Trustee 109
Section 7.03 Individual Rights of Trustee and Agents 112
Section 7.04 Trustee’s Disclaimer 112
Section 7.05 Notice of Defaults 113
Section 7.06 Compensation and Indemnity 113
Section 7.07 Replacement of Trustee 114
Section 7.08 Successor Trustee or Agent by Merger, Etc 115
Section 7.09 Eligibility; Disqualification 115
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE 115
Section 8.01 Option to Effect Legal Defeasance or
Covenant Defeasance 115
Section 8.02 Legal Defeasance and Discharge 115
Section 8.03 Covenant Defeasance 116
Section 8.04 Conditions to Legal Defeasance or Covenant
Defeasance 117
Section 8.05 Deposited Money and Government Securities to
be Held in Trust; Other Miscellaneous Provisions 117
Section 8.06 Repayment to the Issuer 118
Section 8.07 Reinstatement 118
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ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER 119
Section 9.01 Without Consent of Holders. 119
Section 9.02 With Consent of Holders 120
Section 9.03 Revocation and Effect of Consents 122
Section 9.04 Notation on or Exchange of Notes 122
Section 9.05 Trustee to Sign Amendments, etc 123
ARTICLE 10 SATISFACTION AND DISCHARGE 123
Section 10.01 Satisfaction and Discharge 123
Section 10.02 Application of Trust Money 125
ARTICLE 11 GUARANTEES 125
Section 11.01 Guarantees 125
Section 11.02 Limitation on Liability 126
Section 11.03 Limitations Applicable to Certain Guarantors 127
Section 11.04 Successors and Assigns 135
Section 11.05 No Waiver 136
Section 11.06 Modification 136
Section 11.07 Execution of Supplemental Indenture for Future
Guarantors 136
Section 11.08 No Notation Required 136
Section 11.09 Release of Note Guarantees 137
ARTICLE 12 [Reserved] 138
ARTICLE 13 [Reserved] 138
ARTICLE 14 MISCELLANEOUS 138
Section 14.01 Notices 138
Section 14.02 Communications 139
Section 14.03 Certificate and Opinion as to Conditions Precedent. 140
Section 14.04 Statements Required in Certificate or Opinion 140
Section 14.05 Rules by Trustee and Agents 140
Section 14.06 No Personal Liability of Directors, Managers,
Officers, Employees and Stockholders 140
Section 14.07 Governing Law 140
Section 14.08 No Adverse Interpretation of Other Agreements 141
Section 14.09 Successors 141
Section 14.10 Severability 141
Section 14.11 Counterpart Originals 141
Section 14.12 Table of Contents, Headings, etc 141
Section 14.13 Submission to Jurisdiction; Appointment of Agent 141
Section 14.14 Power of Attorney 142
Section 14.15 Prescription 142
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Section 14.16 USA Patriot Act. 142
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EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF SUPPLEMENTAL INDENTURE
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THIS SENIOR NOTES INDENTURE (this “Indenture”), dated as of June 19, 2026, among Birkenstock Group B.V. & Co. KG, a limited liability partnership (Kommanditgesellschaft) organized under the laws of Germany, with business address at Burg Ockenfels, 53545 Linz am Rhein, Germany, and registered with the commercial register of the local court (Amtsgericht) of Montabaur under registration number HRA 22603 (the “Issuer”), the Guarantors named herein, GLAS Trust Company LLC, as trustee (in such capacity, the “Trustee”), paying agent (in such capacity, the “Principal Paying Agent”), transfer agent (in such capacity, the “Transfer Agent”) and as registrar (in such capacity, the “Registrar”).
Each party agrees as follows for the benefit of each other and for the other parties and for the equal and ratable benefit of the Holders of the Issuer’s euro-denominated 4.500% Senior Notes due 2033 (the “Notes”).
DEFINITIONS AND INCORPORATION BY REFERENCE
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Whenever any provision of this Indenture requires any action or determination to be made by, or any approval of, a Board of Directors, such action, determination or approval shall be deemed to have been taken or made if approved by a majority of the directors or equivalent (excluding employee representatives, if any) on any such Board of Directors (whether or not such action or approval is taken as part of a formal board meeting (or equivalent) or as a formal board approval (or equivalent)). The obligations of the “Board of Directors” under this Indenture may be exercised by the Board of Directors of the Issuer, the Parent Guarantor or any Financial Reporting Entity, including, in each case, its successors and assigns.
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in each case, to which any member of the Group is alone (or together with other members of the Group) beneficially entitled at that time and which is not issued or guaranteed by any member of the Group or subject to any Security (other than a Permitted Lien).
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Notwithstanding the foregoing, (a) a transaction will not be deemed to involve a Change of Control solely as a result of the Parent Guarantor becoming a direct or indirect Wholly Owned Subsidiary of a Parent Holding Company if (A) the direct or indirect holders of the Voting Stock of such Parent Guarantor immediately following that transaction are substantially the same as the holders of the Parent Guarantor’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; (b) the right to acquire Voting Stock (so long as such Person does not have the right to direct the voting of the Voting Stock subject to such right) or any veto power in connection with the acquisition or disposition of Voting Stock will not cause a party to be a beneficial owner; and (c) a Permitted Transaction under paragraph (a) or (d) thereof shall not constitute a Change of Control.
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of such person and the Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with the Accounting Principles and any write down of assets or asset value carried on the balance sheet.
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in each case to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income; plus
in each case including such fees, expenses or charges (including rating agency fees and related expenses) related to the Term Facilities, the RCF, any Notes, any other Credit Facility, any Receivables Facility, any Securitization Facility, any other Indebtedness not prohibited by this Indenture or any Equity Offering and any amendment, waiver or other modification of any of the foregoing, in each case, whether or not consummated, to the extent the same were deducted (and not added back) in computing Consolidated Net Income; plus
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and excluding:
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provided that, for purposes of this definition interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such person to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with the Accounting Principles.
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in each case on or prior to the earlier of:
provided that:
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provided, further, that if such Capital Stock is issued to any future, current or former employee, director, officer, contractor or consultant (or their respective Controlled Investment Affiliates (excluding the Permitted Holders (but not excluding any future, current or former employee, director, officer, contractor or consultant) or Immediate Family Members), of the Parent Guarantor, any of its Subsidiaries, any Parent Entity or any other entity in which the Parent Guarantor or a Subsidiary has an Investment and is designated in good faith as an “affiliate” by the Board of Directors (or the compensation committee thereof) or any other plan for the benefit of current, former or future employees (or their respective Controlled Investment Affiliates or Immediate Family Members)) of the Parent Guarantor or its Subsidiaries or by any such plan to such employees (or their respective Controlled Investment Affiliates or Immediate Family Members), such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Parent Guarantor or its Subsidiaries in order to satisfy applicable statutory, contractual or regulatory obligations.
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provided that the term “Guarantee” will not include:
and provided, further, that the amount of any Guarantee shall be deemed to be the lower of:
The term “Guarantee” used as a verb has a corresponding meaning.
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with respect to clauses (a), (b) and (d) above, if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet (excluding the footnotes thereto) of such person prepared in accordance with the Accounting Principles.
The amount of any Indebtedness outstanding as of any date shall be (A) the accreted value thereof in the case of any Indebtedness issued with original issue discount and (B) the principal amount of Indebtedness, or liquidation preference thereof, in the case of any other Indebtedness.
Notwithstanding the above provisions, in no event shall the following constitute Indebtedness:
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in each case, other than any portfolio operating companies and their subsidiary undertakings.
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or the equivalent of such rating by such rating organization or, if no rating of S&P, Moody’s or Fitch then exists, the equivalent of such rating by any other Nationally Recognized Statistical Ratings Organization.
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provided that: (i) in the case of paragraph (s)(iii)(A)(y) above, such Liens extend only to the assets, property, plant or equipment purchased, leased, rented, designed, expanded, constructed, installed, replaced, repaired or improved (as applicable) (plus improvements, accessions, proceeds or dividends or distributions in respect thereof, or replacements of any thereof); provided further that individual financings of assets provided by one lender or group of lenders may be cross-collateralized to other financings of assets by such lender or group of lenders; and (ii) in the case of paragraph (s)(v) above, only if such Liens are limited to the extent of such property or assets financed;
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In the event that a Permitted Lien meets the criteria of more than one of the types of Permitted Liens (at the time of Incurrence or at a later date), the Parent Guarantor or the Issuer in their sole discretion may divide, classify or from time to time reclassify all or any portion of such Permitted Lien in any manner that complies with this Indenture and such Permitted Lien shall be treated as having been made pursuant only to the clause or clauses of the definition of Permitted Lien to which such Permitted Lien has been classified or reclassified.
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and which are sold, conveyed, assigned or otherwise transferred or pledged by the Parent Guarantor or such Subsidiary (as applicable) in a transaction or series of transactions in connection with a Receivables Facility.
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which in each case for the avoidance of doubt may include periods prior to the Issue Date as described in Section 4.08.
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No Indebtedness will be deemed to be subordinated in right of payment to any other Indebtedness solely by virtue of being unsecured or by virtue of being secured on a junior basis or on different assets, or due to the fact that holders (or an agent, trustee or representative thereof) of any Indebtedness have entered into intercreditor or similar arrangements giving one or more of such holders priority over the other holders in the collateral held by them or by virtue of the application of “waterfall” or similar payment ordering provisions affecting tranches of Indebtedness.
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Term |
Defined in Section |
“Additional Amounts” |
2.13 |
“Additional Notes” |
2.01(c) |
“Applicable Law” |
14.16 |
“Applicable Premium” |
Exhibit A |
“Applicable Premium Deficit” |
8.04(a) |
“Authentication Agent” |
2.02 |
“Authentication Order” |
2.02 |
“Authority” |
2.03 |
“Bund Rate” |
Exhibit A |
“Change in Tax Law” |
3.08(2) |
“Change of Control Offer” |
4.06(a) |
“Change of Control Payment” |
4.06(b)(1) |
“Change of Control Payment Date” |
4.06(b)(2) |
“Code” |
2.13(7) |
“Covenant Defeasance” |
8.03 |
“cross-acceleration provision” |
6.01(a)(4)(B) |
“defeasance trust” |
8.04(a) |
“Directing Holder” |
6.02 |
“Event of Default” |
6.01(a) |
“Executed Documentation” |
1.03(p) |
“Financial Reporting Entity” |
4.02(g) |
“Forward-Looking Group Initiative Synergies” |
4.08(c) |
“Forward-Looking Purchase Synergies” |
4.08(a) |
“Forward-Looking Sale Synergies” |
4.08(b) |
“Forward-Looking Synergies” |
4.08(c) |
“grower permission” |
4.08(s) |
“guarantee default provisions” |
6.01(a)(6) |
“Guaranteed Obligations” |
11.01 |
“Increased Amount” |
4.05(b) |
“Indenture” |
preamble |
“Initial Default” |
6.04(b) |
“Initial Lien” |
4.05(a) |
“Interest Payment Date” |
Exhibit A |
“Legal Defeasance” |
8.02 |
“Noteholder Direction” |
6.02 |
“numerical permission” |
4.08(s) |
“Paying Agent” |
2.03 |
“payment default” |
6.01(a)(4)(A) |
“Payor” |
2.13 |
“Position Representation” |
6.02 |
“Purchase” |
4.08(a) |
“Registrar” |
2.03 |
“Relevant Taxing Jurisdiction” |
2.13(2) |
“Reporting Subsidiary” |
4.02(g) |
“Required Currency” |
2.14(a) |
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“Sale” |
4.08(b) |
“Tax Redemption Date” |
3.08 |
“Transfer Agent” |
2.03 |
“Verification Covenant” |
6.02 |
Unless the context otherwise requires:
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THE NOTES
The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and the Issuer and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
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An Officer must sign the Notes for the Issuer by manual, electronic or facsimile signature.
If the Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note will nevertheless be valid.
A Note will not be valid until authenticated by the manual, electronic or facsimile signature of the Trustee (or an Authentication Agent). The signature will be conclusive evidence that the Note has been authenticated under this Indenture.
On the Issue Date, the Trustee, or relevant Authentication Agent shall, upon receipt of a written order of the Issuer signed by an Officer (an “Authentication Order”), authenticate and make available for delivery the Initial Notes. Upon delivery of any Authentication Order at any time and from time to time thereafter, the Trustee shall authenticate Additional Notes for original issue, or Definitive Registered Notes issued pursuant to Section 2.06 hereof, in an aggregate principal amount specified in such Authentication Order. Such Authentication Order shall specify the amount of the Notes to be authenticated and the date on which Notes are to be
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authenticated. In addition, such Authentication Order shall include (a) a statement that the Person signing the Authentication Order have (i) read and understood the provisions of this Indenture relevant to the statements in the Authentication Order and (ii) made such examination or investigation as is necessary to enable them to make such statements and (b) a brief statement as to the nature and scope of the examination or investigation on which the statements set forth in the Authentication Order are based.
The Trustee may appoint an authentication agent acceptable to the Issuer to authenticate the Notes. Unless limited by the terms of such appointment, an authentication agent may authenticate the Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agents. Such authentication agent shall have the same rights as the Trustee in any dealings hereunder with the Issuer or with any of the Issuer’s Affiliates. The Trustee hereby appoints GLAS Trust Company LLC, as authentication agent for the Notes (the “Authentication Agent”) and GLAS Trust Company LLC hereby accepts such appointment and the Issuer hereby confirms that such appointment is acceptable to it.
The Issuer shall maintain offices or agencies where Notes may be presented for registration of transfer or for exchange (each, a “Registrar”) and one or more offices or agencies where the Issuer has authorized such office or agency to pay the principal of (and premium, if any) or interest on any Note on behalf of the Issuer (each, a “Paying Agent”). The Issuer will also maintain one or more transfer agents (the “Transfer Agent”). The Registrar will maintain a register reflecting ownership of the Notes. The Issuer may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Issuer will notify the Trustee in writing of the name and address of any Paying Agent or Registrar not a party to this Indenture. The Issuer or any of the Issuer’s Subsidiaries, acting as agent of the Issuer solely for this purpose, may act as Paying Agent or Registrar in respect of the Notes.
The Issuer initially appoints GLAS Trust Company LLC to act as Principal Paying Agent, Transfer Agent and Registrar. GLAS Trust Company LLC hereby accepts such appointment.
The Issuer shall enter into an appropriate agency agreement with any Paying Agent or Registrar not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such agent. The Issuer shall notify the Trustee of the name and address of any such agent. If the Issuer fails to maintain a Registrar or Paying Agent after reasonable notice from the Trustee, the Trustee may appoint a suitably qualified and reputable party to act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.06. The Issuer or any of its Subsidiaries may act as Paying Agent or Registrar in respect of the Notes, provided that it segregates and holds in a separate trust fund for the benefit of the Holders all money held by it as paying agent.
Upon written notice to the Trustee, the Issuer may change any Paying Agent, Registrar or Transfer Agent for the Notes without prior notice to the Holders of such Notes. However, for so long as the Notes are listed on the Official List of the Exchange, and if and to the extent that the rules of The International Stock Exchange Authority Limited (the “Authority”) so require, the Issuer will notify the Authority of any change of Paying Agent, Registrar or Transfer Agent in accordance with Section 14.01 and, in the case of Definitive Registered
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Notes, in addition to such publication and posting, mail such notice by first-class mail to each Holder’s registered address, as it appears on the register for the Notes, with a copy to the Trustee.
No later than 10:00 a.m. (GMT), on each due date of the principal of, interest and premium (if any) on any Note, the Issuer shall deposit with the Paying Agent a sum sufficient to pay such principal, interest and premium (if any) when so becoming due and subject to receipt of such monies, the Paying Agent shall make payment on the Notes in accordance with this Indenture. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee or such entity designated by the Trustee for this purpose and to account for any funds disbursed by the Paying Agent. Upon complying with this Section 2.04, the Paying Agent shall have no further liability for the money delivered to the Trustee. The Issuer shall no later than 2:00 p.m. (GMT) on the Business Day prior to the day on which the Paying Agent is to receive payment, procure that the bank effecting payment for it confirms via fax or tested SWIFT MT100 message to the Paying Agent the payment instructions relating to such payment.
The Registrar will preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If the Trustee is not the Registrar, the Issuer will furnish to the Trustee at least three Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders.
Neither the Trustee, the Agents nor any of their agents will have any responsibility or be liable for any aspect of the records in relation to, or payments made on account of, beneficial ownership interests in the Global Notes or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
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Upon the occurrence of any of the events listed in Section 2.06(a)(1)(A) or Section 2.06(a)(1)(B), the Issuer shall execute, and the Trustee or the Authentication Agents, shall, upon receipt of an Authentication Order, authenticate and deliver Definitive Registered Notes in an aggregate principal amount equal to the principal amount of the applicable Global Note tendered in exchange therefor. The Issuer will, at the cost of the Issuer (but against such indemnity as the Registrar or any relevant Agent may require in respect of any tax or other duty of whatever nature which may be levied or imposed in connection with such exchange), cause sufficient Definitive Registered Notes to be executed and delivered to the Trustee for authentication and the Registrar for registration of the exchange and dispatch to the relevant Holders within 30 days of the relevant event. The Trustee or the Registrar shall, at the cost of the Issuer, deliver such Definitive Registered Notes to the Persons in whose names such Notes are so registered. Definitive Registered Notes issued in exchange for beneficial interests in Global Notes pursuant to this Section 2.06(a) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its Participants or Indirect Participants or otherwise, shall instruct the Trustee. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a); provided, however, that beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c), (d) or (e) hereof.
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Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee or the Registrar shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(g) hereof.
and, in each such case, if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
If any such transfer is effected at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee, or the Authentication Agent, shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred.
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Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.
the Principal Paying Agent or the Registrar shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(g) hereof, and the Issuer shall execute and, upon receipt of an Authentication Order, the Trustee, or the Authentication Agent, shall authenticate and deliver to the Person designated in the instructions a Restricted Definitive Registered Note in the appropriate principal amount. Any Restricted Definitive Registered Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the Holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Principal Paying Agent or the Registrar shall deliver such Restricted Definitive Registered Notes to the Persons in whose names such Notes are so registered. Any Restricted Definitive Registered Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.
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and, in each such case set forth in this subparagraph (C), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
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the Trustee or the Registrar will cancel the Restricted Definitive Registered Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, the appropriate 144A Global Note, and in the case of clause (C) or (D) above, the appropriate Regulation S Global Note.
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and, in each such case set forth in this subparagraph (C), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(2), the Trustee or the Registrar will cancel the Definitive Registered Note and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.
If any such exchange or transfer from an Unrestricted Definitive Registered Note to a beneficial interest is effected pursuant to this subparagraph (3) at a time when an Unrestricted Global Note has not yet been issued, the Issuer will issue and, upon receipt of an Authentication Order, the Trustee, or the Authentication Agent, will authenticate one or more Unrestricted Global Notes in an aggregate principal amount
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equal to the principal amount of Unrestricted Definitive Registered Notes so transferred.
and, in each such case, if the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or
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transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
[THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]
[THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IT IS ACQUIRING THIS NOTE IN AN “OFFSHORE TRANSACTION” PURSUANT TO RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (2) AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR FOR WHICH IT HAS PURCHASED SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS [IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF SUCH SECURITIES, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL SECURITIES AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF SUCH SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY),] [IN THE CASE OF SECURITIES SOLD TO NON-U.S. PERSONS IN ACCORDANCE WITH REGULATION S: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND
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THE DATE ON WHICH SUCH SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S] ONLY (A) TO THE ISSUER, THE GUARANTORS OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENTS OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.]
[THIS GLOBAL NOTE IS HELD BY THE COMMON DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS GLOBAL NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
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PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER.]
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE COMMON DEPOSITARY TO A NOMINEE OF THE COMMON DEPOSITARY OR BY A NOMINEE OF THE COMMON DEPOSITARY TO THE COMMON DEPOSITARY OR ANOTHER NOMINEE OF THE COMMON DEPOSITARY OR BY THE COMMON DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR COMMON DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR COMMON DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY (WHICH SHALL INITIALLY BE BANQUE INTERNATIONALE à LUXEMBOURG S.A.) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE COMMON DEPOSITARY OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY (AND ANY PAYMENT IS MADE TO THE COMMON DEPOSITARY OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE COMMON DEPOSITARY OR ITS NOMINEE, HAS AN INTEREST HEREIN.]
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If any mutilated Note is surrendered to the Trustee or the Issuer or the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Issuer will issue and the Trustee, or the applicable Authentication Agent, upon receipt of an Authentication Order, will authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee, any Agent, or the Issuer, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee, the relevant Agent, and the Issuer to protect the Issuer, the Trustee and any Agent from any loss that any of them may suffer if a Note is replaced. The Issuer, the Trustee and any Agent may charge the relevant Holder for its expenses in replacing a Note.
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If, after the delivery of such replacement Note, a bona fide purchaser of the original Note in lieu of which such replacement Note was issued presents for payment or registration such original Note, the Trustee shall be entitled to recover such replacement Note from the Person to whom it was delivered or any Person taking therefrom, except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Issuer, the Trustee, and any Agent in connection therewith.
Subject to the provisions of the final sentence of the preceding paragraph of this Section 2.07, every replacement Note is an obligation of the Issuer and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.
The Notes outstanding at any time are all the Notes authenticated by the Trustee or the Authentication Agent except for those canceled by the Trustee, Paying Agent or Registrar, those delivered to them for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof and those described in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note; provided, however, that Notes held by the Issuer or a Subsidiary of the Issuer shall not be deemed to be outstanding for purposes of paragraph 5(c) of the Global Notes as applicable.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser in whose hands such Note is a legal, valid and binding obligation of the Issuer.
If the entire principal amount and premium, if any, of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent receives in accordance with the times set forth in Section 2.04 of this Indenture, on each redemption date or maturity date, money sufficient to pay all principal and interest and premium, if any, payable on that date with respect to the Notes (or portions thereof) to be redeemed or maturing as the case may be, and the Paying Agent is not, as advised to it in writing by the Issuer or, as the case may be, the Registrar, prohibited as advised to it in writing by the Issuer from paying such amount to the relevant Holders on that date pursuant to the terms of this Indenture, then on and after that date such series of Notes (or portions thereof) cease to be outstanding and interest on them ceases to accrue.
If the Paying Agent holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date, and is not prohibited from paying such money to the Holders pursuant to the terms of this Indenture, then on and after that date such Notes will be deemed to be no longer outstanding and will cease to accrue interest.
A Note does not cease to be outstanding because the Issuer, an Affiliate of the Issuer, or any fund or other entity controlled, managed or advised by any direct or indirect shareholder of the Issuer (or, in each case, any successor thereof) holds the Note; provided that, in determining whether the holders of the requisite majority of outstanding Notes have given any
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request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Issuer, an Affiliate of the Issuer, or any fund or other entity controlled, managed by or advised by any direct or indirect shareholder of the Issuer (or, in each case, any successor thereof) shall be disregarded and deemed not to be outstanding if a Responsible Officer of the Trustee has received written notice of such ownership at least two Business Days prior to the date of such determination; provided that this sentence shall not apply to any Sponsor Related Fund that receives an allocation of the Notes in the initial syndication thereof. Prior to the receipt of such notice, the Trustee shall be entitled to assume that none of the Notes are owned by the Issuer, an Affiliate of the Issuer, or any fund or other entity controlled, managed by or advised by any direct or indirect shareholder of the Issuer (or, in each case, any successor thereof). For the avoidance of doubt, provision of such notice shall not be an obligation of the Issuer. For the avoidance of doubt, no Independent Debt Fund shall be considered to be a Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer.
Until certificates representing the Notes are ready for delivery, the Issuer may prepare and the Trustee, or the Authentication Agents, upon receipt of an Authentication Order, will authenticate, temporary Notes. Temporary Notes will be substantially in the form of Definitive Registered Notes but may have variations that the Issuer considers appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuer will prepare and the Trustee, or the relevant Authentication Agent, will authenticate Definitive Registered Notes in exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the benefits of this Indenture.
The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent will forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee or at the direction of the Trustee, the Registrar or the Paying Agent (other than the Issuer or a subsidiary of the Issuer) and no one else will cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and will dispose of such canceled Notes (subject to the record retention requirements of the Exchange Act) in its customary manner unless the Issuer directs the Trustee to deliver canceled Notes to the Issuer following a written request from that Issuer. No Issuer may issue new Notes to replace Notes that it has redeemed or paid or that have been delivered to the Trustee for cancellation.
If the Issuer defaults in a payment of interest on the Notes, it will pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, in accordance with the terms hereof, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Issuer will notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Issuer will fix or cause to be fixed each such special record date and payment date in a manner satisfactory to the Trustee; provided that no such special record date may be less than 10 days prior to the related payment date for such defaulted interest. At least 10 days before the special record date, the Issuer (or,
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upon the written request of such Issuer, the Trustee in the name and at the expense of the Issuer) will mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid. Notwithstanding the foregoing, if the Issuer pays the defaulted interest prior to the date that is 30 days after the date of default in payment of interest, no special record date will be set and payment will be made to the Holders as of the original record date.
All payments made by or on behalf of the Issuer or any Guarantor (including any successor entity) (each, a “Payor”) in respect of the Notes or with respect to any Note Guarantee, as applicable, will be made free and clear of and without withholding or deduction for, or on account of, any Taxes unless the withholding or deduction of such Taxes is then required by law or by the relevant taxing authority’s interpretation or administration thereof. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
will at any time be required by law to be made from any payments made by any Payor or by the Paying Agent on behalf of any Payor, with respect to any Note or any Note Guarantee, including (without limitation) payments of principal, redemption price, interest or premium, if any, such Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received by each Holder in respect of such payments, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), will not be less than the amounts which would have been received by each Holder in respect of such payments on any such Note or Note Guarantee in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of:
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In addition, no Additional Amounts shall be paid with respect to a Holder who is a fiduciary or a partnership or any Person other than the beneficial owner of the Notes, to the extent that the beneficiary or settler with respect to such fiduciary, the member of such partnership or the beneficial owner would not have been entitled to Additional Amounts had such beneficiary, settler, member or beneficial owner held such Notes directly.
The Payor will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant tax authority in accordance with applicable law.
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The Payor will use reasonable efforts to provide certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes, or if such tax receipts are not available, certified copies of such other reasonable evidence as is available of such payments as soon as reasonably practicable to the Trustee (with a copy to the Paying Agent). Such copies shall be made available to the Holders upon reasonable written request and will be made available at the offices of the Paying Agent.
If any Payor is obligated to pay Additional Amounts with respect to any payment made on any Note or any Note Guarantee, at least 30 days prior to the date of such payment, the Payor will deliver to the Trustee and the Paying Agent an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable and such other information necessary to enable the Paying Agent to pay Additional Amounts on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the Payor may deliver such Officer’s Certificate as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee and the Paying Agent shall be entitled to conclusively rely on such Officer’s Certificate as conclusive proof that such payments are necessary.
Wherever in this Indenture or the Notes there is mentioned, in any context:
such reference shall be deemed to include payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
The Payor will pay each applicable Holder for any present or future stamp, issue, registration, court or documentary taxes, or similar charges or levies (including any related interest or penalties with respect thereto) or any other excise, property or similar taxes or similar charges or levies (including any related interest or penalties with respect thereto) that arise in a Relevant Taxing Jurisdiction from the execution, delivery, registration, enforcement of, or receipt of payments with respect to any Notes, any Note Guarantee, this Indenture, or any other document or instrument in relation thereto (in each case, (i) other than in connection with a transfer after the offering of the Initial Notes and limited solely to the extent of such taxes or similar charges or levies that arise from the receipt of any payments of principal or interest on the Notes, and (ii) limited to any such taxes or similar charges or levies that are not excluded under clauses (1) through (4) and (6) through (8) (save that in respect of clause (6), this proviso shall not apply in connection with transfer, personal property or similar Taxes)).
The foregoing obligations in this Section 2.13 will survive any termination, defeasance or discharge of this Indenture, any transfer by a Holder or beneficial owner, and will apply mutatis mutandis to any jurisdiction in which any successor to a Payor is incorporated or organized, engaged in business for tax purposes or otherwise resident for tax purposes, or any jurisdiction from or through which any payment under, or with respect to the Notes (or any
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Note Guarantee) is made by or on behalf of such successor Payor, or any political subdivision or taxing authority or agency thereof or therein.
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REDEMPTION AND PREPAYMENT
If the Issuer elects to redeem any series of Notes pursuant to the applicable optional redemption provisions contained in paragraph 5(c) of the Global Notes, it shall notify, five Business Days before the publication of the notice of such redemption (unless a shorter period is satisfactory to the Trustee, the Registrar and the Paying Agent), the Trustee, the Registrar and the Paying Agent of the redemption date and the principal amount of Notes to be redeemed and the section of the Note pursuant to which the redemption will occur.
The Issuer must furnish to the Trustee (with a copy to the Paying Agent), at least 10 days but not more than 60 days before a redemption date, an Officer’s Certificate setting forth:
In the event that any Global Note (or any portion thereof) is redeemed, Euroclear and/or Clearstream, as applicable, will redeem an equal amount of the Book-Entry Interests in such Global Note from the amount received by them in respect of the redemption of such Global Note. The redemption price payable in connection with the redemption of such Book-Entry Interests will be equal to the amount received by Euroclear and Clearstream, as applicable, in connection with the redemption of such Global Note (or any portion thereof).
Under the existing practices of Euroclear and Clearstream, if fewer than all of the Notes are to be redeemed at any time, Euroclear and Clearstream will credit their respective participants’ accounts on a pro rata basis (such as by way of a pool factor), by lot or on such other basis as they deem fair and appropriate and in accordance with their applicable procedures (unless otherwise required by law or applicable stock exchange rules); provided, however, that no Book-Entry Interest of less than €100,000 principal amount may be redeemed in part. If the Notes are not held through Euroclear or Clearstream, the Notes will be selected on a pro rata basis, subject to adjustments so that no Note in an unauthorized denomination remains outstanding after such redemption; provided, however, that no such partial redemption shall reduce the outstanding principal amount of any Notes below €100,000. The Trustee, the Paying Agent and the Registrar shall not be liable for selections made under this Section 3.02.
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The Trustee or the Registrar will promptly notify the Issuer of, in the case of any Notes selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased, to the extent such information is provided by the Relevant Clearing System to the Trustee or the Registrar in the case of any Global Notes. Notes and portions of Notes selected will be in minimum amounts of €100,000 and integral multiples of €1,000 in excess thereof, except that if all the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of €1,000 (in excess of €100,000) shall be redeemed or purchased. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.
Except as otherwise provided herein, at least 10 days but not more than 60 days before the redemption date, the Issuer shall transmit a notice of redemption in accordance with Section 14.01 and as provided below to each Holder whose Notes are to be redeemed, at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of Euroclear and Clearstream, except that redemption notices may be delivered electronically or mailed more than 60 days prior to a redemption date if the notice is issued in connection with a legal or covenant defeasance of the Notes pursuant to Article 8 hereof or a satisfaction and discharge of this Indenture pursuant to Article 10 hereof. For Notes which are represented by Global Notes held on behalf of Euroclear or Clearstream, notices may be given by delivery of the relevant notices to Euroclear or Clearstream, as applicable, for communication to entitled account holders in substitution for the aforesaid mailing. If and for so long as any Notes are listed on the Official List of the Exchange and if and to the extent the rules of the Exchange so require, the Issuer will notify the Exchange of any such notice to the Holders of the relevant Notes and, in connection with any redemption, the Issuer will notify the Exchange of any change in the principal amount of Notes outstanding.
The notice will identify the Notes to be redeemed and will state:
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At the Issuer’s request, the Paying Agent or Registrar shall give the notice of redemption in the Issuer’s name and at its expense. In such event, the Issuer shall provide the Trustee and the Paying Agent or Registrar with the information required and within the time periods specified by this Section.
To the extent that the mandatory rules and procedures of the Depositary conflict with this Indenture, any notice will be deemed to satisfy this Indenture if it complies with the mandatory rules and procedures of the Depositary.
Notice of any redemption of the Notes may, at the Issuer’s discretion, be given prior to the completion of a transaction (including an Equity Offering, an incurrence of Indebtedness, a Change of Control or other transaction) and any redemption notice may, at the Issuer’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of a related transaction. If such redemption or purchase is so subject to satisfaction of one or more conditions precedent, such notice shall describe each such condition, and if applicable, shall state that, in the Issuer’s discretion, the redemption or repurchase date may be delayed until such time (provided, however, that, in any case, such redemption date shall be no more than 60 days from the date on which such notice is first given except that redemption notices may be delivered more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture pursuant to the provisions thereof), or such redemption or purchase may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied (or waived by the Issuer in its sole discretion) by the redemption or purchase date, or by the redemption or purchase date as so delayed, or that such notice may be rescinded at any time in the Issuer’s sole discretion if the Issuer determines that any or all of such conditions will not be satisfied or waived. In addition, the Issuer may provide in such notice that payment of the redemption or purchase price and performance of the Issuer’s obligations with respect to such redemption may be performed by another Person.
The Issuer may redeem Notes pursuant to one or more of the relevant provisions in this Indenture, and, subject to the requirements of the Relevant Clearing System, a single notice of redemption may be delivered with respect to redemptions made pursuant to different provisions. Any such notice may provide that redemptions made pursuant to different provisions will have the same or different redemption dates.
If the optional redemption date is on or after a record date and on or before the corresponding interest payment date, the accrued and unpaid interest up to, but excluding, the
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redemption date will be paid on the redemption date to the Holder in whose name the Note is registered at the close of business on such record date in accordance with the applicable procedures of the Relevant Clearing System, and no additional interest will be payable to Holders whose Notes will be subject to redemption by the Issuer.
No later than 10:00 a.m. (GMT) on the relevant redemption or purchase date, the Issuer will deposit with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued and unpaid interest, if any, and Additional Amounts, if any, on all Notes to be redeemed or purchased on that date other than Notes or portions of Notes called for redemption that have been delivered by the Issuer to the Trustee for cancellation. The Paying Agent will promptly return to the Issuer any money deposited with the Paying Agent by the Issuer in excess of the amounts necessary to pay the redemption or purchase price of, and accrued and unpaid interest, if any, and Additional Amounts, if any, on, all Notes to be redeemed or purchased. Neither the Trustee nor any Agent shall be required to pay out any money without first having been placed in funds.
If the Issuer complies with the provisions of the preceding paragraph, on and after the redemption or purchase date, interest will cease to accrue on the Notes or the portions of Notes called for redemption or purchase unless the Paying Agent is prohibited from making such redemption payment pursuant to the terms of this Indenture. If any Note called for redemption or purchase is not so paid upon surrender for redemption or purchase because of the failure of the Issuer to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.
Subject to the terms hereof, upon surrender of a Note that is redeemed in part, the Issuer shall execute and upon receipt of an Authentication Order, the Trustee, or the Authentication Agent, shall authenticate for the Holder (at the Issuer’s expense), (a) in the case of a Definitive Registered Note, a new Definitive Registered Note in principal amount equal to the unredeemed portion of the original Note upon cancellation of the original Definitive Registered Note and (b) in the case of a Global Note, the Registrar shall make an appropriate notation on such Global Note (or otherwise in accordance with the applicable procedures of the Relevant Clearing System) to decrease the principal amount thereof to an amount equal to the unredeemed portion thereof. Subject to the terms of the applicable redemption notice (including any conditions contained therein), Notes called for redemption become due on the date fixed for redemption. On and after the redemption date, unless the Issuer defaults in the payment of the redemption price, interest ceases to accrue on Notes or portions of them called for redemption.
The Issuer is not required to make mandatory redemption payments or sinking fund payments with respect to the Notes prior to their maturity, except in connection with offers to purchase pursuant to Section 4.06.
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The Issuer may redeem the Notes in whole, but not in part, at any time at its discretion upon giving not less than 10 nor more than 60 days’ prior written notice to the Holders (which notice will be irrevocable) at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to but excluding the date fixed for redemption (a “Tax Redemption Date”) (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date) and all Additional Amounts, if any, then due and which will become due on the Tax Redemption Date as a result of the redemption or otherwise, if the Issuer determines in good faith that, as a result of:
a Payor is, or on the next interest payment date in respect of the Notes would be, required to pay Additional Amounts (or increased Additional Amounts) with respect to the Notes, and such obligation cannot be avoided by taking reasonable measures available to the Payor (including, for the avoidance of doubt, the appointment of a new Paying Agent where this would be reasonable). Such Change in Tax Law must be formally announced and become effective on or after the Issue Date (or if the applicable Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction on a date after the Issue Date, such later date).
Notice of redemption for taxation reasons will be published in accordance with the procedures described in Section 3.03. Notwithstanding the foregoing, no such notice of redemption will be given earlier than 60 days prior to the earliest date on which the Payor would be obligated to make such payment of Additional Amounts. Prior to the publication or mailing of any notice of redemption of Notes pursuant to the foregoing, the Issuer will deliver to the Trustee (a) an Officer’s Certificate stating that it is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to its right to so redeem have been satisfied and that the obligation to pay Additional Amounts cannot be avoided by the relevant Payor taking reasonable measures available to it (but in the case of a Guarantor, only if the payment giving rise to such requirement cannot be made by the Issuer or another Guarantor who can make such payment without the obligation to pay Additional Amounts) and (b) a written opinion of an independent tax counsel of recognized standing qualified under the laws of the Relevant Taxing Jurisdiction and reasonably satisfactory to the Trustee (such approval not to be unreasonably withheld, conditioned or delayed) to the effect that the Payor has been or will become obligated to pay Additional Amounts as a result of a Change in Tax Law. The Trustee will accept and shall be entitled to rely conclusively on such Officer’s Certificate and opinion as sufficient evidence of the satisfaction of the conditions precedent described above, without further inquiry, in which event it will be conclusive and binding on the Holders.
The foregoing provisions will apply mutatis mutandis to the laws and official positions of any jurisdiction in which any successor to a Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or
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therein. The foregoing provisions will survive any termination, defeasance or discharge of this Indenture.
COVENANTS
For the avoidance of doubt, the consummation of the Transaction shall not be prohibited by this Article 4 or Article 5.
The Issuer shall pay or cause to be paid the principal of, premium, if any, and interest and Additional Amounts, if any, on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest and Additional Amounts, if any, will be considered paid on the date due if the applicable Paying Agent holds, prior to 10:00 a.m. (GMT) on each such date (or such other time as the Issuer and the Paying Agent may mutually agree from time to time, but always subject to actual receipt), money deposited by the Issuer in immediately available funds and designated for and sufficient to pay all principal, premium and Additional Amounts, if any, and interest then due and is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture.
The Issuer shall pay interest on overdue principal at a rate that is 1% higher than the then-applicable interest rate on the Notes to the extent lawful. The Issuer will pay interest on overdue installments of interest (without regard to any applicable grace period), at the same rate to the extent lawful.
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(the occurrence of such events, a “Suspension Event” and the date thereof being referred to as the “Suspension Date”), then, beginning on the Suspension Date until the date (the “Reversion Date”) on which the Notes no longer have an Investment Grade Status or a Rating Agency withdraws its Investment Grade Status or downgrades the rating assigned to the relevant series of Notes below an Investment Grade Status (in each case, to the extent given an Investment Grade Status by such Rating Agency), the Note Guarantees will be suspended.
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SUCCESSORS
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The Successor Company will succeed to, and be substituted for, and may exercise every right and power of, the Parent Guarantor under the Notes and this Indenture.
The Successor Company shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under the Notes and this Indenture.
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DEFAULTS AND REMEDIES
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and, in each case, the aggregate principal amount of all indebtedness subject to such payment defaults or accelerations (after giving effect to any applicable grace periods), is in excess of the greater of (x) €205 million and (y) an amount equal to 30% of LTM EBITDA;
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and any such decree, order or appointment continues to be in effect and unstayed for a period of sixty (60) consecutive days; or
which, in each case, is (1) sanctioned by a court and becomes unconditional and (2) not with the Trustee;
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If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal, premium, if any,
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and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture. Following such Event of Default, the Trustee is entitled to require all Agents to act under its direction.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence to the Event of Default. No remedy is exclusive of any other remedy. All remedies are cumulative to the extent permitted by law.
Subject to Section 7.01(e), the Holders of at least 30% in principal amount of the outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee, or of exercising any trust or power conferred on the Trustee, and the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. The Trustee, however, may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee determines is unduly prejudicial to the rights of any other Holder or that would involve the Trustee in personal liability and may take any other action that is not inconsistent with any such direction received from Holders of the Notes.
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Subject to Article 7, if an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity and/or security satisfactory to the Trustee in its sole discretion against any loss, liability or expense. Except to enforce the right to receive payment of principal or interest when due, no Holder may pursue any remedy with respect to this Indenture or the Notes unless:
Notwithstanding any other provision of this Indenture, the right of any Holder to bring suit for the enforcement of any payment of principal, premium on, if any, or interest, if any, on the Notes on or after such respective dates shall not be impaired or affected without the consent of the Holders of not less than 90% in aggregate principal amount of the Notes.
If an Event of Default specified in Section 6.01(a)(1) or (2) occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Issuer or any other obligor on the Notes for the whole amount then due and owing (together with interest on any unpaid interest to the extent lawful) and such further amount as shall be sufficient to cover the costs and expenses of collection, including the properly incurred compensation, expenses, disbursements and advances of the Trustee, the Agents, any other agents and counsel.
If the Issuer fails to pay such amounts forthwith upon such demand, the Trustee, in its own name as trustee of an express trust, may institute a judicial proceeding in its own name for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Issuer or any other obligor upon the Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Issuer or any other obligor upon the Notes, wherever situated.
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The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the properly incurred compensation, expenses, disbursements and advances of the Trustee, the Agents, any other agents and counsel) and the Holders allowed in any judicial proceedings relative to the Issuer, any other obligor upon the Notes, their creditors or their property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims, and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the properly incurred compensation, expenses, disbursements and advances of the Trustee, the Agents, any other agents and counsel, and any other amounts due the Trustee under Section 7.06 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, the Agents, any other agents and counsel, and any other amounts due the Trustee under Section 7.06 hereof out of the estate in any such proceeding shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order:
First: to the Trustee, the Agents, any other agents and attorneys (including the Agents and the Trustee) for amounts due under Section 7.02 and Section 7.06, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and any Agents and the costs and expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes for principal, premium, if any, interest and Additional Amounts, if any, rateably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, interest and Additional Amounts, if any, respectively; and
Third: to the Issuer or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10. At least 15 days before such record date, the Issuer shall mail to each Holder and the Trustee a notice that states the record date, the payment date and amount to be paid.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion
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may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount of the then-outstanding Notes, or to any suit initiated by any Holder for the enforcement of the payment of any principal of or interest on any Note, on or after its maturity date.
The Parent Guarantor and its Subsidiaries shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Parent Guarantor and its Subsidiaries (to the extent that they may lawfully do so) hereby expressly waive all benefit or advantage of any such law, and covenant that they will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted.
Holders of the Notes may not enforce this Indenture or the Notes except as provided in this Indenture.
THE TRUSTEE AND AGENTS
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The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Parent Guarantor, the Issuer or any Affiliate of the Parent Guarantor or the Issuer with the same rights it would have if it were not Trustee. However, in the event that the Trustee has acknowledged that it has acquired any conflicting interest, it must eliminate such conflict within 90 days, or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Section 7.09 hereof.
The Trustee will not be responsible for and makes no representation as to the validity or adequacy of this Indenture, the Notes or any Note Guarantee and it shall not be accountable for the Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s direction under any provision of this Indenture, it will not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it will not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Notes and perform its obligations hereunder.
If a Default occurs and is continuing and a Responsible Officer of the Trustee is informed in writing of such occurrence by the Issuer, the Trustee must give notice of the Default to the Holders within 60 days after being notified by the Issuer. Except in the case of a Default in the payment of principal of, or premium, if any, or interest on any Note, the Trustee may withhold notice if and so long as the Trustee in good faith determines that withholding notice is in the interests of the Holders.
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If the Trustee or any Agent consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act will be the successor Trustee or Agent.
In case any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by consolidation, merger or conversion to such authenticating Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes.
This Indenture shall at all times have a Trustee that is an entity organized and doing business under the laws of the United States or any state thereof, or a member state of the
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European Union or a political subdivision thereof or the United Kingdom, that is authorized to exercise corporate trust power and that is a Person which is generally recognized as an entity which customarily performs such corporate trustee roles and provides such corporate trustee services in transactions similar in nature of the Offering of the Notes as described in the Offering Memorandum.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The Issuer may at any time elect to have either Section 8.02 or Section 8.03 hereof be applied to all outstanding Notes, the Note Guarantees and this Indenture upon compliance with the conditions set forth below in this Article 8.
Upon the Issuer’s election described in Section 8.01 hereof to exercise its rights under this Section 8.02, the Parent Guarantor, the Issuer and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations with respect to all outstanding Notes, the Note Guarantees and this Indenture on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Parent Guarantor, the Issuer and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Guarantees), which will thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in Section 8.02(a) and Section 8.02(b) and to have satisfied all their other obligations under such Notes, the Note Guarantees and this Indenture (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder:
Subject to compliance with this Article 8, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof. If the
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Issuer exercises its legal defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified in Section 6.01.
Upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Issuer, its Subsidiaries and the Parent Guarantor will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of its obligations under Section 4.02, Section 4.03, Section 4.04, Section 4.05, Section 4.06, Section 4.07, Section 5.01 (other than with respect to Section 5.01(b)(1)) hereof with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes will thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but will continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes will not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and the Note Guarantees, the Issuer and its Subsidiaries may omit to comply with and will have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply will not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes and Note Guarantees will be unaffected thereby. In addition, upon the Issuer’s election described in Section 8.01 hereof to exercise its rights under this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, payment of the Notes may not be accelerated because of an Event of Default specified in Section 6.01(a)(3), Section 6.01(a)(4) and Section 6.01(a)(5) (other than with respect to the Issuer).
In order to elect to exercise its rights under either Section 8.02 or Section 8.03 hereof:
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Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of, premium, if any, interest or Additional Amounts, if
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any on any Note and remaining unclaimed for two years after such principal, premium, if any, interest or Additional Amounts, if any, has become due and payable shall be paid to the Issuer on its request or (if then held by the Issuer) will be discharged from such trust; and the Holder of such Note will thereafter be permitted to look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, will thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer cause to be made available to the newswire service of Bloomberg or, if Bloomberg does not operate, any similar agency a notice to the effect that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Issuer.
If the Trustee or any Paying Agent is unable to apply any euro or non-callable European Government Obligations in accordance with Section 8.02 or Section 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuer’s obligations under this Indenture and the Notes will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or Section 8.03 hereof until such time as the Trustee or such Paying Agent is permitted to apply all such money in accordance with Section 8.02 or Section 8.03 hereof, as the case may be; provided, however, that, if the Issuer make any payment of principal of, premium, if any, or interest on any Note following the reinstatement of its obligations, the Issuer will be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.
AMENDMENT, SUPPLEMENT AND WAIVER
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Except as provided in this Section 9.02, this Indenture (including without limitation, Section 4.06 hereof) and the other Note Documents may be amended, supplemented or otherwise modified with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, such Notes) and, subject to Section 6.04 and Section 6.07, any existing Default or Event of Default (other than a Default or Event of Default in the payment of principal or premium, Additional Amounts, if any, or interest on any Note (including in connection with an offer to purchase), except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture and the other Note Documents may be waived with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, such Notes). If any amendment, supplement or waiver will only affect one or more series of Notes (but not all series of Notes), only the Holders of at least a majority in aggregate principal amount of the then outstanding Notes of the series so affected (and not the consent of the Holders of at least a majority in aggregate principal amount of all Notes then outstanding), shall be required. Section 2.08 hereof shall determine which Notes are considered to be “outstanding” for purposes of this Section 9.02.
Upon the request of the Issuer, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders in accordance with this Section 9.02, and upon receipt by the Trustee of the documents described in Section 7.02(p) hereof, the Trustee will join with the Issuer and the Guarantors, as applicable, in the execution of such amended or supplemental indenture or other instrument unless such amended or supplemental indenture or other instrument directly affects the Trustee’s own rights, duties, indemnities or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but will not be obligated to, enter into such amended or supplemental indenture or other instrument.
The consent of the Holders is not necessary under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver of any Notes Document. It is sufficient if such consent approves the substance thereof. A consent to any amendment, supplement or waiver under this Indenture by any Holder given in connection with a sale or tender of such Holder’s Notes will not be rendered invalid by such sale or tender.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuer will deliver to the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuer to deliver such notice, or any defect therein, will not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver. Subject to Section 6.07 hereof and the following paragraph, the Holders of a majority in aggregate principal amount of the Notes then
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outstanding may waive compliance in a particular instance by the Issuer with any provision of this Indenture or the Notes.
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Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder or subsequent Holder may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
The Trustee may place an appropriate notation (or otherwise in accordance with the procedures of the Relevant Clearing System) about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuer in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note will not affect the validity and effect of such amendment, supplement or waiver.
The Trustee will sign any amended or supplemental indenture or other instrument authorized pursuant to this Article 9 if the amendment or supplement or other instrument does not adversely affect the rights, duties, liabilities or immunities of the Trustee. In executing any amended or supplemental indenture or other instrument, the Trustee will be provided with and (subject to Section 7.01 hereof) will be fully protected in relying upon, in addition to the documents required by Section 14.03 hereof, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture or other instrument or other instrument is authorized or permitted by this Indenture and that such amendment is the legal, valid and binding obligation of the Issuer (and any Guarantor) enforceable against them in accordance with its terms, subject to customary exceptions, and complies with the provisions of this Indenture. In signing any amendment, supplement or waiver, the Trustee shall be entitled to indemnification or security satisfactory to them. Notwithstanding the foregoing, an Opinion of Counsel will not be required in connection with the addition of a Guarantor under this Indenture upon execution and delivery by such Guarantor to the Trustee of a supplemental indenture to this Indenture, the form of which is attached as an exhibit hereto.
SATISFACTION AND DISCHARGE
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Subject to the provisions of Section 8.06, all money deposited with the Trustee pursuant to Section 10.01 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest and Additional Amounts, if any, for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money, European Government Obligations in the case of the Notes in accordance with Section 10.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s and any Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 10.01; provided that if the Issuer has made any payment of principal of, premium, if any, or interest and Additional Amounts, if any, on the Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money, European Government Obligations in the case of the Notes, held by the Trustee or Paying Agent.
GUARANTEES
Subject to this Article 11 and the Agreed Security Principles, each of the Guarantors hereby, jointly and severally and unconditionally guarantees to each Holder of a Note
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authenticated and delivered by the Trustee (or Authentication Agent) and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (i) the principal of, premium, if any, interest and Additional Amounts, if any, on the Notes shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium, if any, interest and Additional Amounts, if any, on the Notes (to the extent permitted by law), and all other obligations of the Issuer to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Without limiting the generality of the foregoing, each Guarantor’s liability under its Note Guarantee shall extend to all obligations under the Notes and this Indenture (including, without limitation, interest, fees, costs and expenses) that would be owed but for the fact that they are unenforceable or not allowable due to any proceeding under Bankruptcy Law involving the Issuer or any Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenant that this Note Guarantee shall not be discharged except by complete payment and performance of the obligations contained in the Notes and this Indenture and the obligations of each Guarantor under this Note Guarantee shall not be subject to any reduction, limitation, impairment, set-off, defense, counterclaim, discharge or termination for any reason other than the complete payment and performance of the obligations contained in the Notes and this Indenture.
If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either of the Issuer or the Guarantors, any amount paid either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby or any collateral securing any such obligations until payment and performance in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (ii) in the event of any declaration of
125
acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.
“AG” means (i) a stock corporation (Aktiengesellschaft, AG) incorporated under German law and/or (ii) a limited liability partnership (Kommanditgesellschaft) with a stock corporation (Aktiengesellschaft, AG) as general partner (Komplementär).
“AG Guarantor” means any Guarantor which is an AG, any SE Guarantor and any KGaA Guarantor.
“AktG” means the German Stock Corporation Act (Aktiengesetz, AktG).
“Auditor’s Determination” means the determination pursuant to Section 11.03(a)(3)(D).
“BGB” means the German Civil Code (Bürgerliches Gesetzbuch, BGB).
“DPLA” means a domination and/or profit and loss pooling agreement (Beherrschungs- und/oder Gewinnabführungsvertrag) as defined in § 291 (1) AktG.
“EU Guarantor” means any limited liability company (or limited liability partnership with a limited liability company as its general partner) incorporated in a jurisdiction other than Germany whose centre of main interest (as that term
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is used in Article 3(1) of Regulation (EU) No. 2015/848 of 20 May 2015 on insolvency proceedings (recast), as amended by Regulation (EU) No. 2025/2073 of 8 October 2025)) is in Germany.
“German Guarantor” means any AG Guarantor, any GmbH Guarantor and any EU Guarantor.
“GmbH” means (i) a limited liability company (Gesellschaft mit beschränkter Haftung, GmbH) incorporated under German law and/or (ii) a limited liability partnership (Kommanditgesellschaft) with a limited liability company (Gesellschaft mit beschränkter Haftung, GmbH) as general partner (Komplementär) incorporated under German law.
“GmbH Capital Impairment” means the GmbH Net Assets of a GmbH Guarantor falling below the amount (Entstehung einer Unterbilanz) required to maintain that GmbH Guarantor's registered share capital (Stammkapital) or an increase of an existing shortage (Vertiefung einer Unterbilanz) of its registered share capital (Stammkapital) and thereby violating §§ 30, 31 GmbHG (including by way of any decrease of the GmbH Net Assets as a consequence of the existence, discharge or enforcement of any Limited Upstream Obligation against any subsidiary of a GmbH Guarantor).
“GmbH Guarantor” means a Guarantor which is a GmbH.
“GmbH Net Assets” means the net assets (Reinvermögen) of a GmbH Guarantor calculated in accordance with § 42 GmbHG, §§ 242, 264 HGB and the generally accepted accounting principles applicable (Grundsätze ordnungsgemäßer Buchführung) from time to time in Germany as adjusted pursuant to Section 11.03(a)(3)(F).
“GmbHG” means the German Limited Liability Company Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung, GmbHG).
“HGB” means the German Commercial Code (Handelsgesetzbuch, HGB)
“InsO” means the German Insolvency Code (Insolvenzordnung – InsO).
“KGaA” means a Guarantor which is a partnership limited by shares (Kommanditgesellschaft auf Aktien, KGaA).
“KGaA Guarantor” means a Guarantor which is a KGaA.
“Limited Obligation” means any guarantee and any other liability, indemnity or other payment obligation under this Article 11 or any other provision of the Note Documents.
“Limited Upstream Obligation” means any Limited Obligation if and to the extent such Limited Obligation secures or relates to liabilities which are owed by direct or indirect shareholders of the relevant Guarantor (upstream) or Subsidiaries of such shareholders (such Subsidiaries not to include the relevant Guarantor and the Subsidiaries of that relevant Guarantor, except if and to the extent the liabilities (including guarantees) of such Subsidiaries secure
127
liabilities of a member of the Group that is not a direct or indirect Subsidiary of the relevant Guarantor) (cross-stream).
“Liquidity Impairment” means a German Guarantor being deprived of the liquidity necessary to fulfil its liabilities towards its creditors and thereby violating § 15b (5) InsO, § 278 (3) AktG and/or Art. 5 SE Regulation (as applicable to the relevant German Guarantor).
“Management Notification” means the notification pursuant to Section 11.03(a)(3)(iii).
“Subsidiary” means a subsidiary within the meaning of sections 15 to 17 of the AktG.
“SE” means a European company (Europäische Gesellschaft, SE) incorporated under German law.
“SE Guarantor” means a Guarantor which is (i) an SE and/or (ii) a limited liability partnership (Kommanditgesellschaft) with a SE as general partner (Komplementär).
“SE Regulation” means Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE).
in each case unless the mere existence of such a DPLA does not lead to the inapplicability of § 57 (1) and § 71a AktG (in connection with § 278 (3) AktG
128
and/or Art. 5 SE Regulation, as applicable) as explicitly confirmed with reasons (and not, for example, as an obiter dictum) by the Federal Court of Justice (Bundesgerichtshof) in a third party case; and the loss compensation claim (Verlustausgleichsanspruch) of the AG Guarantor under such a DPLA would not be, or cannot be expected to be, fully valuable and recoverable (vollwertig) in the balance sheet of the AG Guarantor.
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in each case, to the extent that any such on-lending or otherwise passing on or bank guarantees or letters of credit are still outstanding at the time of the enforcement of the relevant Limited Upstream Obligation provided that the Trustee waives with binding effect any restrictions under the Note Documents (as applicable) in respect of the GmbH Guarantor's recourse claim (if any) arising as a result of the enforcement of the Limited Upstream Obligation so that it shall be permitted for the GmbH Guarantor to make use of its rights to (x) set off its recourse claim (if any) against the loan or similar obligation in respect of the amounts on-lent or otherwise passed on to it or (y) otherwise use its recourse claim (if any) to settle or discharge this loan or similar obligation. The Trustee may elect not to waive the restrictions under the Notes Documents (as applicable) in respect of the GmbH Guarantor’s recourse claim (if any) arising as a result of the enforcement of the Limited Upstream Obligation against that GmbH Guarantor, provided that if the Trustee so elects, the enforcement limitations set out in this Section 11.03 apply in relation to any amounts which correspond to funds that have been borrowed and have been on-lent to, or otherwise been passed on to, or made available for the benefit of, the relevant GmbH Guarantor. For the avoidance of doubt, nothing in this Section 11.03(a)(3)(B) shall have the effect that such on-lent amounts may be enforced multiple times (no double dip);
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in each case unless the mere existence of such DPLA does not lead to the inapplicability of § 30 (1) sentence 1 GmbHG;
then the restrictions set out in Section 11.03(a)(3)(i) above shall cease to apply until a Management Notification has been provided.
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132
133
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This Article 11 shall be binding upon each Guarantor and its successors and assigns and shall inure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges conferred upon that party in this Indenture and in the Notes shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions of this Indenture.
Neither a failure nor a delay on the part of either the Trustee or the Holders in exercising any right, power or privilege under this Article 11 shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. The rights, remedies and benefits of the Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other rights, remedies or benefits which either may have under this Article 11 at law, in equity, by statute or otherwise.
No modification, amendment or waiver of any provision of this Article 11, nor the consent to any departure by any Guarantor therefrom, shall in any event be effective unless the same shall be in writing and signed by the Trustee, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Guarantor in any case shall entitle such Guarantor to any other or further notice or demand in the same, similar or other circumstances.
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The failure to endorse a Note Guarantee on any Note shall not affect or impair the validity thereof.
The Note Guarantee of a Guarantor will be automatically and unconditionally released and discharged upon:
Upon any occurrence giving rise to a release of a Note Guarantee, as specified in this Section 11.09, the Trustee shall, subject to receipt of certain documentation requested pursuant to this Indenture, take all necessary actions at the reasonable request and cost of the Issuer, including the granting of releases or waivers, to effectuate any release of a Note Guarantee in accordance with these provisions, subject to customary protections and indemnifications. Each of the releases set forth above shall be effected by the Trustee without the consent of the Holders and will not require any other action or consent on the part of the Trustee. None of the Issuer, the Trustee or any Guarantor will be required to make a notation on the Notes to reflect
136
any such release, termination or discharge. The Issuer may in its sole discretion, and without prejudice to any future election in relation thereto, elect to have any Note Guarantee remain in place, as opposed to being released.
Any Guarantor not released from its obligations under its Note Guarantee as provided in this Section 11.09 will remain liable for the full amount of principal of, premium, if any, interest and Additional Amounts, if any, on, the Notes and for the other obligations of any Guarantor under this Indenture as provided in this Article 11.
[Reserved]
[Reserved]
MISCELLANEOUS
Any notice or communication by the Issuer or the Trustee to the others is duly given if in writing in English and by publication on the website or online data system maintained in accordance with Section 4.02 or delivered in Person or mailed by first class mail (registered or certified, return receipt requested), facsimile, electronic mail or other electronic transmission or overnight air courier guaranteeing next day delivery, to the others’ address:
If to the Parent Guarantor, the Issuer or any Guarantor:
Birkenstock Group B.V. & Co KG
Burg Ockenfels
53545 Linz am Rhein
Germany
Attention: Treasury Department, [email protected]
with copies to:
Paul, Weiss Rifkind, Wharton & Garrison LLP
20 Air Street
London W1B 5AN
United Kingdom
Facsimile: +44 20 7681 2558
Attention: Matthew Merkle
If to the Trustee, the Principal Paying Agent and Transfer Agent:
Glas Trust Company LLC
3 Second Street
Suite 206
Jersey City, New Jersey 07311
USA
137
Attention: The Manager, Debt Capital Markets
Email: [email protected]
The Parent Guarantor, the Issuer, any Guarantor or the Trustee, by notice to the others may designate additional or different addresses for subsequent notices or communications.
All notices to Holders of Notes will be validly given if electronically delivered or mailed to them at their respective addresses in the register of the Holders, if any, maintained by the registrar. For so long as any Notes are represented by Global Notes, all notices to Holders will be delivered to the Relevant Clearing Systems in accordance with the applicable procedures of the Relevant Clearing Systems, delivery of which shall be deemed to satisfy the requirements of this paragraph, which will give such notices to the Holders of book‑entry interests. To the extent the mandatory rules and procedures of the Relevant Clearing Systems conflict with any such requirements, a notice will be deemed to satisfy the requirements of this Indenture if it complies with the mandatory rules and procedures of the Relevant Clearing Systems. In addition, if and for so long as the Notes are listed on the Official List of the Exchange and if and to the extent that the rules of the Authority so require, notices of the Issuer with respect to the Notes will be sent to the Authority.
Each such notice shall be deemed to have been given on the date of such publication or, if published more than once on different dates, on the first date on which publication is made; provided that, if notices are mailed, such notice shall be deemed to have been given on the later of such publication and the seventh day after being so mailed. Any notice or communication mailed to a Holder shall be mailed to such Person by first‑class mail or other equivalent means and shall be sufficiently given to such Holder if so mailed within the time prescribed. Failure to electronically deliver or mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is electronically delivered or mailed in the manner provided above, it is duly given, whether or not the addressee receives it. If a notice or communication is given through a Relevant Clearing System, it is duly given on the day the notice is given to such Relevant Clearing System.
If the Issuer electronically delivers or mails a notice or communication to Holders, it will mail a copy to the Trustee and each Agent at the same time.
All notices and communications shall be in the English language or accompanied by a translation into English certified as being a true and accurate translation. In the event of any discrepancies between the English and the other than English versions of such notices or communications, the English version of such notice or communication shall prevail.
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Upon any request or application by the Issuer to the Trustee to take any action under this Indenture, the Issuer shall furnish to the Trustee:
Each certificate or opinion with respect to compliance with a condition precedent provided for in this Indenture must include:
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
139
No director, manager, officer, employee, incorporator or stockholder of the Issuer or any of its Subsidiaries or Affiliates, as such, shall have any liability for any obligations of the Issuer under the Note Documents or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the U.S. federal securities laws and it is the view of the SEC that such a waiver is against public policy.
THis Indenture and the Notes, INCLUDING ANY NOTE GUARANTEES, and the rights and duties of the parties thereunder shall be governed by and construed in accordance with the laws of the State of New York. For the avoidance of doubt, the governing law of this Indenture and the Notes may be amended with the consent of Holders of at least a majority in principal amount of the Notes then outstanding (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes).
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer or their Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
All agreements of the Issuer in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this Indenture will bind its successors. All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 11.03.
In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
The parties may sign any number of copies of this Indenture. Each signed copy will be an original, but all of them together represent the same agreement.
The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions hereof.
140
The Issuer and each Guarantor irrevocably submit to the non-exclusive jurisdiction of any New York state or U.S. federal court located in the Borough of Manhattan in the City and State of New York over any suit, action or proceeding arising out of or relating to this Indenture, the Notes and the Note Guarantees. The Issuer and each Guarantor irrevocably waive, to the fullest extent permitted by law, any objection which they may have, pursuant to New York law or otherwise, to the laying of the venue of any such suit, action or proceeding brought in such a court and any claim that any such suit, action or proceeding brought in such a court has been brought in any inconvenient forum. In furtherance of the foregoing, the Issuer and each Guarantor incorporated outside the United States hereby irrevocably designate and appoint Birkenstock US (at its office at c/o Corporation Service Company, 251 Little Falls Drive, Wilmington, New Castle County, DE 19808, United States) as its agent to receive service of all process brought against them with respect to any such suit, action or proceeding in any such court in the City and State of New York, such service being hereby acknowledged by it to be effective and binding service in every respect and the Guarantors incorporated outside the United States agree to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid. Birkenstock US hereby accepts such appointment and hereby agrees to act as said agent for service of process. Copies of any such process so served shall also be given to the Issuer in accordance with Section 14.01 hereof, but the failure of the Issuer to receive such copies shall not affect in any way the service of such process as aforesaid.
Nothing in this Section shall limit the right of the Trustee or any Holder to bring proceedings against the Issuer in the courts of any other jurisdiction or to serve process in any other manner permitted by law.
If any party to this Indenture is represented by an attorney or attorneys in connection with the signing and/or execution and/or delivery of this Indenture or any agreement or document referred to herein or made pursuant hereto, including any Note, and the relevant power or powers of attorney is or are expressed to be governed by the laws of a particular jurisdiction, it is hereby expressly acknowledged and accepted by the other parties hereto that such laws shall govern the existence and extent of such attorney’s or attorneys’ authority and the effects of the exercise thereof.
Claims against the Issuer or any Guarantor for the payment of principal, premium, if any, or Additional Amounts, if any, on the Notes will be prescribed ten years after the applicable due date for payment thereof. Claims against the Issuer or any Guarantor for the payment of interest on the Notes will be prescribed six years after the applicable due date for payment of interest.
In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering, including Section 326 of the USA PATRIOT Act of the United States (“Applicable Law”), the Trustee and Agents are required
141
to obtain, verify, record and update certain information relating to individuals and entities which maintain a business relationship with the Trustee and Agents. Accordingly, each of the parties agree to provide to the Trustee and Agents, upon their request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee and Agents to comply with Applicable Law.
[Signatures on following pages]
142
SIGNATURES
Dated as of June 19, 2026
Birkenstock Group B.V. & Co. KG, represented by its general partner (Komplementär) Birkenstock Administration B.V.
as Issuer
By: /s/ Oliver Christian Joachim Reichert
Name: Oliver Christian Joachim Reichert
Title: Sole Managing Director
(Signature Page to Indenture)|
birkenstock limited partner s.À R.L., as Parent Guarantor
By: /s/ Francis Michel Jean Marie Zéler
Name: Francis Michel Jean Marie Zéler
Title: Sole Manager
(Signature Page to Indenture)|
BIRKENSTOCK PRODUCTIONS RHEINLAND-PFALZ GMBH
as Guarantor,
By: /s/ Deniz Kocak
Name: Deniz Kocak
Title: Managing Director (Geschäftsführer)
(Signature Page to Indenture)|
BIRKENSTOCK GLOBAL SALES GMBH
as Guarantor,
By: /s/ Ivica Krolo
Name: Ivica Krolo
Title: Managing Director (Geschäftsführer)
(Signature Page to Indenture)|
BIRKENSTOCK COMPONENTS GMBH
as Guarantor,
By: /s/ Marco Basilio
Name: Marco Basilio
Title: Managing Director (Geschäftsführer)
(Signature Page to Indenture)|
BIRKENSTOCK PRODUCTIONS HESSEN GMBH
as Guarantor,
By: /s/ Marcus Börger
Name: Marcus Börger
Title: Managing Director (Geschäftsführer)
(Signature Page to Indenture)|
BIRKENSTOCK EUROPE GMBH
as Guarantor,
By: /s/ Nico Bouyakhf
Name: Nico Bouyakhf
Title: Managing Director (Geschäftsführer)
(Signature Page to Indenture)|
BIRKENSTOCK DIGITAL GMBH
as Guarantor,
By: /s/ Oliver Winderoll
Name: Oliver Winderoll
Title: Managing Director (Geschäftsführer)
(Signature Page to Indenture)|
BIRKENSTOCK IP GMBH
as Guarantor,
By:
Name: Christian Heesch
Title: Managing Director (Geschäftsführer)
By: /s/ Steffen Schäffner
Name: Steffen Schäffner
Title: Authorised Signatory (Prokurist)
(Signature Page to Indenture)|
BIRKENSTOCK IP GMBH
as Guarantor,
By: /s/ Christian Heesch
Name: Christian Heesch
Title: Managing Director (Geschäftsführer)
By:
Name: Steffen Schäffner
Title: Authorised Signatory (Prokurist)
(Signature Page to Indenture)|
BIRKENSTOCK PRODUCTIONS SACHSEN GMBH
as Guarantor,
By: /s/ Cenk Ugur
Name: Cenk Ugur
Title: Managing Director (Geschäftsführer)
(Signature Page to Indenture)|
BIRKENSTOCK US BIDCO, INC.
as Guarantor,
By: /s/ David Kahan
Name: David Kahan
Title: President and Managing Director
(Signature Page to Indenture)|
BIRKENSTOCK USA GP, LLC
as Guarantor,
By: /s/ David Kahan
Name: David Kahan
Title: President and Managing Director
(Signature Page to Indenture)|
BIRKENSTOCK USA, LP
as Guarantor,
By: /s/ David Kahan
Name: David Kahan
Title: President and Managing Director
(Signature Page to Indenture)|
BIRKENSTOCK USA Digital Llc,
as Guarantor,
By: /s/ David Kahan
Name: David Kahan
Title: President and Managing Director
(Signature Page to Indenture)|
SIGNED for and on behalf of
GLAS TRUST COMPANY LLC,
as Trustee
By: /s/ Steve Wright
Name: Steve Wright
Title: Senior Transaction Manager
(Signature Page to Indenture)|
SIGNED for and on behalf of
GLAS Trust Company LLC,
as Principal Paying Agent, Transfer Agent and Registrar
By: /s/ Steve Wright
Name: Steve Wright
Title: Senior Transaction Manager
(Signature Page to Indenture)|
Exhibit A
1[FORM OF FACE OF NOTE]
[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]
Birkenstock Group B.V. & Co. KG
[●]% Senior Notes due 20[●]
[REGULATION S/RULE 144A]
ISIN:____________
Common Code: _________
No. ___ €[_______]
Birkenstock Group B.V. & Co. KG, a limited liability partnership (Kommanditgesellschaft) organized under the laws of Germany, with business address at Burg Ockenfels, 53545 Linz am Rhein, Germany, and registered with the commercial register of the local court (Amtsgericht) of Montabaur under registration number HRA 22603 (the “Issuer”), for value received promises to pay to the registered holder or its registered assigns, upon surrender hereof, the principal sum of [ ], subject to any adjustments listed on the Schedule of Increases, Decreases or Exchanges of Interests in the Global Note attached hereto, on [●].
Interest Payment Dates: [●] and [●] of each year, commencing on [●].
Record Dates: The [Clearing System Business Day immediately before the Interest Payment Date][for Global Notes][On the Business Day immediately before the Interest Payment Date][for Definitive Registered Notes]
Date: ____________.
Reference is hereby made to the further provisions of this Note set forth herein, which further provisions shall for all purposes have the same effect as if set forth at this place. This Global Note is registered in the nominee name of Banque Internationale à Luxembourg, société anonyme, for Euroclear and Clearstream accounts.
1 Bracketed language to be flexed as appropriate for relevant series of Notes once broken out.
A-1
| ||
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed by its duly authorized director, officer or other authorized signatory.
Birkenstock Group B.V. & CO. KG
represented by its general partner (Komplementär) Birkenstock Administration B.V.
By:
Name:
Title:
A-2
|
Certificate of Authentication
This is one of the Notes referred to in the within‑mentioned Indenture.
Dated: _____________
Signed for and on behalf of:
GLAS Trust Company LLC
not in its personal capacity, but in its capacity as
Authentication Agent appointed by
GLAS Trust Company LLC,
as Trustee
By:
Authorized Signatory
A-3
|
[FORM OF REVERSE OF NOTE]
[●]% Senior Note due 20[●]
Unless otherwise defined herein, capitalized terms used herein have the meanings assigned to them in the Indenture.
If the Issuer delivers Global Notes to the Trustee for cancellation on a date that is on or after the record date and on or before the corresponding interest payment date, the accrued and unpaid interest up to, but excluding, the redemption date will be paid on the redemption date to the Holder in whose name the Note is registered at the close of business on such record date in accordance with the applicable procedures of the Relevant Clearing System, and no additional interest will be payable to Holders whose Notes will be subject to redemption by the Issuer.
A-4
For purposes of this Note:
“Applicable Premium” means the greater of:
A-5
in each case, as calculated by the Issuer or on behalf of the Issuer by such Person as the Issuer shall designate. For the avoidance of doubt, calculation of the Applicable Premium shall not be an obligation or duty of the Trustee or the Paying Agent.
“Bund Rate” as selected by the Issuer, means the yield to maturity at the time of computation of direct obligations of the Federal Republic of Germany (Bunds or Bundesanleihen) with a constant maturity as officially compiled and published in the most recent financial statistics that have become publicly available at least two Business Days (but not more than five Business Days) prior to the redemption date (or, if such financial statistics are not so published or available, any publicly available source of similar market data selected in good faith by the Issuer) most nearly equal to the period from the redemption date to [●]; provided, however, that if the period from the redemption date to [●] is not equal to the constant maturity of a direct obligation of the Federal Republic of Germany for which a weekly average yield is given, the Bund Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of direct obligations of the Federal Republic of Germany for which such yields are given, except that if the period from such redemption date to [●] is less than one year, the weekly average yield on actually traded direct obligations of the Federal Republic of Germany adjusted to a constant maturity of one year shall be used; and provided, further, that in no case shall the Bund Rate be less than zero.
A-6
Date |
Redemption Price |
[●] |
[●]% |
[●] |
[●]% |
[●], and thereafter |
100.000% |
A-7
a Payor (as defined in the Indenture) is, or on the next interest payment date in respect of the Notes would be, required to pay Additional Amounts (or increased Additional Amounts) with respect to the Notes, and such obligation cannot be avoided by taking reasonable measures available to the Payor (including, for the avoidance of doubt, the appointment of a new Paying Agent where this would be reasonable). Such Change in Tax Law must be formally announced and become effective on or after the Issue Date (or if the applicable Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction on a date after the Issue Date, such later date).
A-8
A-9
A-10
ASSIGNMENT FORM
To assign the Note, fill in the form below:
(I) or (we) assign and transfer the Note to:
(Insert assignee’s legal name)
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date:
Your Signature:
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
A-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.06 of the Indenture, check the appropriate box below:
☐ Section 4.06
If you want to elect to have only part of the Note purchased by the Issuer pursuant to Section 4.06 of the Indenture, state the amount you elect to have purchased:
€
Date:
Your Signature:
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.:
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
A-12
SCHEDULE OF INCREASES, DECREASES OR EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The initial aggregate principal amount of this Global Note is [ ]. The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Registered Note, or exchanges of a part of another Global Note or Definitive Registered Note for an interest in this Global Note, have been made (or otherwise in accordance with the applicable procedures of the Relevant Clearing System):
Date of Increase/Decrease/ |
Amount of decrease in Principal Amount |
Amount of increase in Principal |
Principal Amount of this Global Note following such decrease |
Signature of authorized |
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A-13
Exhibit B
FORM OF CERTIFICATE OF TRANSFER
[Issuer]
[Trustee]
Re: [●]% Senior Notes due 20[●]
[(Common Code_________________; ISIN_________________)]
Reference is hereby made to the indenture, dated as of June 19, 2026 (the “Indenture”), among, inter alios, Birkenstock Group B.V. & Co. KG, a limited liability partnership (Kommanditgesellschaft) organized under the laws of Germany, with business address at Burg Ockenfels, 53545 Linz am Rhein, Germany, and registered with the commercial register of the local court (Amtsgericht) of Montabaur under registration number HRA 22603 (the “Issuer”), GLAS Trust Company LLC, as trustee (the “Trustee”) and GLAS Trust Company LLC, as Principal Paying Agent, Transfer Agent and Registrar in respect of the Issuer’s [●]% Senior Notes due 20[●]. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
___________________, (the “Transferor”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of €___________ (the “Transfer”), to ___________________________ (the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
B-1
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B-2
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This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
[Insert Name of Transferor]
By:
Name:
Title:
Dated: _______________________
B-3
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ANNEX A TO CERTIFICATE OF TRANSFER
[CHECK ONE OF (a) OR (b)]
[CHECK ONE]
in accordance with the terms of the Indenture.
B-4
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Exhibit C
FORM OF CERTIFICATE OF EXCHANGE
[Issuer]
[Trustee]
Re: [●]% Senior Notes due 20[●]
[(Common Code_________________; ISIN_________________)]
Reference is hereby made to the indenture, dated as of June 19, 2026 (the “Indenture”), among, inter alios, Birkenstock Group B.V. & Co. KG, a limited liability partnership (Kommanditgesellschaft) organized under the laws of Germany, with business address at Burg Ockenfels, 53545 Linz am Rhein, Germany, and registered with the commercial register of the local court (Amtsgericht) of Montabaur under registration number HRA 22603 (the “Issuer”), GLAS Trust Company LLC, as trustee (the “Trustee”) and GLAS Trust Company LLC, as Principal Paying Agent, Transfer Agent and Registrar in respect of the Issuer’s [●]% Senior Notes due 20[●]. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
___________________, (the “Owner”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of €___________ (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:
C-1
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C-2
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This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.
[Insert Name of Transferor]
By:
Name:
Title:
Dated: _______________________
C-3
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Exhibit D
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of [●], among [name of New Guarantor[s]]1 (the “New Guarantor”), Birkenstock Group B.V. & Co. KG, a limited liability partnership (Kommanditgesellschaft) organized under the laws of Germany, with business address at Burg Ockenfels, 53545 Linz am Rhein, Germany, and registered with the commercial register of the local court (Amtsgericht) of Montabaur under registration number HRA 22603 (the “Issuer”) and GLAS Trust Company LLC, as trustee (the “Trustee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture, under the Indenture referred to below.
WITNESSETH:
WHEREAS, the Issuer and the Trustee, inter alios, have entered into an indenture, dated as of June 19, 2026 (as amended, supplemented, waived or otherwise modified) (the “Indenture”), providing for the issuance of the Issuer’s [●]% Senior Notes due 20[●];
WHEREAS, pursuant to Section 4.07 of the Indenture, [each of] the undersigned New Guarantor[s] is required to execute a supplemental indenture substantially in the form hereof or other appropriate agreement providing for such New Guarantor’s Note Guarantee on the same terms and conditions as those set forth in the Indenture;
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and the Issuer are authorized to execute and deliver this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, [each of] the New Guarantor[s], the Issuer, and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1 Insert as appropriate.
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The Guaranteed Obligations of [each of][the] New Guarantor[s] to the Holders and to the Trustee pursuant to the Indenture as supplemented hereby, are expressly set forth in Article 11 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee.
[Relevant limitations imposed by local law analogous to Section 11.02 of the Indenture to be inserted, if and as applicable].
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D-3
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
[NAME OF NEW GUARANTOR[S]],
as New Guarantor
By:
Name:
Title:
[●], as Issuer
By:
Name:
Title:
SIGNED for and on behalf of
[●],
as Trustee
acting by its two authorized signatories
By:
Name:
Title:
By:
Name:
Title:
D-4
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