8-K
Getty Images Holdings, Inc. (GETY)
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549
FORM
8-K
CURRENT
REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported): October 21, 2025
Getty Images Holdings, Inc.
(Exact Name of Registrant as Specified in its Charter)
| Delaware | 001-41453 | 87-3764229 |
|---|---|---|
| (State<br> or other jurisdiction<br><br> of incorporation) | (Commission<br> File Number) | (IRS Employer<br> <br><br>Identification Number) |
605 5th Ave S. Suite 400
Seattle,WA 98104
(Address of Principal Executive Offices, including Zip Code)
Registrant’s
telephone number, including area code: (206) 925-5000
Not
Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written<br> communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|---|---|
| ☐ | Soliciting<br> material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| --- | --- |
| ☐ | Pre-commencement<br> communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| --- | --- |
| ☐ | Pre-commencement<br> communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| --- | --- |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
|---|---|---|
| Class A Common Stock | GETY | New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item1.01 Entry into a Material Definitive Agreement
ExchangeOffer & Consent Solicitation
Indenture
Overview
On October 21, 2025, in connection with the settlement of the offer by Getty Images, Inc. (the “Issuer”), a subsidiary of Getty Images Holdings, Inc. (the “Company”), to exchange (the “Exchange Offer”) any and all of the Issuer’s issued and outstanding 9.750% Senior Notes due 2027 (the “Old Notes”) for newly issued unsecured 14.000% Senior Notes due 2028 (the “New Notes”) of the Issuer, and the related solicitation of consents (the “Consent Solicitation”) to certain proposed amendments (the “Proposed Amendments”) to the terms of the indenture governing the Old Notes, the Issuer (i) accepted for exchange $294,686,000 aggregate principal amount of Old Notes validly tendered (and not validly withdrawn) by the holders thereof and (ii) issued New Notes in an aggregate principal amount of $294,686,000 pursuant to an indenture (the “Base Indenture”), as supplemented by the first supplemental indenture thereto (the “First Supplemental Indenture, and together with the Base Indenture, the “New Notes Indenture”), each dated as of October 21, 2025, and each by and among the Issuer, the guarantors party thereto and Wilmington Trust, National Association, as trustee.
Interest;Guarantees
The New Notes mature on March 1, 2028, unless earlier redeemed or repurchased. No sinking fund is provided for the New Notes. Cash interest on the New Notes will accrue from October 21, 2025 and is payable semi-annually in arrears on March 1 and September 1 of each year, beginning on March 1, 2026, at a rate of 14.000% per year. The obligations under the New Notes are senior unsecured obligations of the Issuer and are jointly and severally guaranteed on a senior basis by the same guarantors guaranteeing the Old Notes. No later than 20 business days following the consummation of the Company’s merger-of-equals with Shutterstock, Inc. (“Shutterstock”), pursuant to that certain Agreement and Plan of Merger, dated as of January 6, 2025, by and among, interalios, the Company and Shutterstock (the “Merger Agreement”, and such merger-of-equals the “Merger”), Shutterstock and its subsidiaries will provide a guarantee of the New Notes.
OptionalRedemption
At any time on or prior to the earlier of (i) March 1, 2027 and (ii) the 180th day after the closing date of the Merger, the Issuer may, upon notice, redeem some or all of the New Notes at a price equal to 100.0% of the principal amount of the New Notes redeemed and accrued and unpaid interest, if any, to, but not including, the applicable redemption date.
At any time after the earlier of (i) March 1, 2027 and (ii) the 180th day after the closing date of the Merger, the Issuer may redeem the New Notes at its option, in whole at any time or in part from time to time, upon giving not less than 15 and not more than 60 days’ notice, at the redemption prices set forth in the New Notes Indenture, plus accrued and unpaid interest, if any, to, but excluding, the applicable redemption date.
Changeof Control
If the Issuer experiences a change of control, the Issuer may be required to offer to repurchase the New Notes from the holders thereof at a purchase price equal to 101.0% of the aggregate principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of such repurchase.
Covenantsand Events of Default
The terms of the New Notes Indenture, among other things, limit the ability of the Issuer and its restricted subsidiaries to (i) incur or guarantee additional indebtedness or issue disqualified stock or preferred stock; (ii) pay dividends and make other distributions on, or redeem or repurchase, the Issuer’s capital stock; (iii) make certain loans and investments; (iv) prepay, redeem or repurchase indebtedness; (v) incur certain liens securing indebtedness; (vi) enter into certain transactions with affiliates; (vii) consolidate, merge or convey, transfer or lease all or substantially all of its assets; (viii) enter into agreements that restrict the ability of certain restricted subsidiaries to make dividends or other payments to the Issuer; (ix) designate our subsidiaries as unrestricted subsidiaries; and (x) transfer or sell certain assets. These covenants are subject to a number of important conditions, qualifications, exceptions and limitations that are described in the Indenture.
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The Indenture provides for customary events of default (subject in certain cases to customary grace and cure periods), which include payment defaults, a failure to pay certain judgments and certain events of bankruptcy and insolvency. These events of default are subject to a number of important qualifications, limitations and exceptions that are described in the Indenture.
The New Notes were offered only to persons reasonably believed to be qualified institutional buyers in reliance on Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), or non-U.S. persons located outside of the United States and eligible to participate in an offering of securities pursuant to Regulation S under the Securities Act. The New Notes were not, and will not be, registered under the Securities Act or any state securities laws and may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the Securities Act and applicable state laws.
The foregoing summary of the New Notes Indenture does not purport to be complete and is qualified in its entirety by reference to the complete terms of the Base Indenture and First Supplemental Indenture, filed as Exhibits 4.1 and 4.2 hereto, respectively, and the form of New Notes, filed as Exhibit 4.3 hereto, each of which is incorporated herein by reference.
ThirdSupplemental Indenture to the Old Notes Indenture
On October 21, 2025, in connection with the Issuer’s acceptance of validly tendered Old Notes, the Issuer confirmed the receipt of consents of at least a majority of the outstanding principal amount of Old Notes (the “Requisite Consents”) to the Proposed Amendments. On October 21, 2025, the Issuer executed a third supplemental indenture to the indenture governing the Old Notes, dated as of October 21, 2025 (the “Third Supplemental Indenture”), by and among the Issuer, the guarantors party thereto and Wilmington Trust, National Association, as trustee. The Third Supplemental Indenture became effective upon execution and is operative as of October 21, 2025, following (i) payment by the Issuer of the Total Consideration (as defined in that certain confidential offering memorandum and consent solicitation statement, dated as of September 18, 2025 (the “Exchange Offering Memorandum”)) to holders of Old Notes whose valid tenders were accepted for exchange and (ii) notification to Wilmington Trust, National Association that such payment was made.
The foregoing description of the Third Supplemental Indenture does not purport to be complete and is qualified in its entirety by reference to the full text of the Third Supplemental Indenture, a copy of which is attached hereto as Exhibit 4.4 and is incorporated herein by reference.
SeniorSecured Notes Offering – Indenture & Escrow Agreement
Overview
On October 21, 2025, in connection with the closing of the Issuer’s offer and sale of $628,400,000 aggregate principal amount of the Issuer’s 10.500% senior secured notes due 2030 (the “Senior Secured Notes”), the Issuer (i) issued the Senior Secured Notes to certain initial purchasers in an aggregate principal amount of $628,400,000 pursuant to an indenture, dated as of October 21, 2025 (the “Senior Secured Notes Indenture”), by and among the Issuer, the Senior Secured Notes Guarantors (as defined below) and U.S. Bank Trust Company, National Association, as trustee and notes collateral agent, and (ii) entered into an escrow agreement, dated as of October 21, 2025 (the “Escrow Agreement), by and among the Issuer, U.S. Bank National Association, as escrow agent (in such capacity, the “Escrow Agent”), and U.S. Bank Trust Company, National Association, as trustee.
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Interest;Guarantees; Security
The Senior Secured Notes mature on November 15, 2030, unless earlier redeemed or repurchased. No sinking fund is provided for the Senior Secured Notes. Cash interest on the Senior Secured Notes will accrue from October 21, 2025 and is payable semi-annually in arrears on May 15 and November 15 of each year, beginning on May 15, 2026, at a rate of 10.500% per year. The obligations under the Senior Secured Notes are fully and unconditionally guaranteed, jointly and severally, on a senior secured basis by the same guarantors (the “Senior Secured Notes Guarantors”) that guarantee the Company’s credit agreement (the “Credit Agreement”) and existing 11.250% Senior Secured Notes due 2030, and secured by a first priority security interest (on a pari passu basis with the obligations under the Credit Agreement and any other existing and future first lien indebtedness) in substantially all of the existing and future assets of the Issuer and each Senior Secured Notes Guarantor, other than Excluded Property (as defined in the Senior Secured Notes Indenture) and subject to permitted liens and the First Lien Intercreditor Agreement (as defined in the Senior Secured Notes Indenture). Shutterstock and its subsidiaries will provide a guarantee of the Senior Secured Notes no later than 20 business days following the consummation of the Merger.
Escrow;Special Mandatory Redemption
Pursuant to the terms of the Escrow Agreement, the Issuer has caused to be deposited an amount equal to the gross proceeds of the offering of the Senior Secured Notes in an escrow account, secured in favor of the Escrow Agent by a first-priority security interest in the escrow account and all funds deposited therein. Upon release from escrow, Getty Images and the Issuer intend to use such escrowed proceeds furnished by the offering of Senior Secured Notes to pay approximately $350,000,000 of fees, expenses and cash consideration to holders of Shutterstock common stock payable in connection with the Merger (as defined below) and to use the remaining proceeds to refinance certain indebtedness of Shutterstock and pay fees and expenses in connection with this offering.
In the event that (i) the Merger Agreement is terminated on or prior to October 6, 2026, or (ii) the Issuer informs the Escrow Agent that in the reasonable judgment of the Issuer, the Merger will not be consummated on or prior to October 6, 2026, the Senior Secured Notes will be redeemed in accordance with a special mandatory redemption at a redemption price equal to 100% of the issue price of the Senior Secured Notes plus accrued and unpaid interest, if any, from the date of issuance or the most recent date to which interest has been paid or provided for, to, but not including, the date of such redemption.
OptionalRedemption
At or any time prior to November 15, 2027, the Issuer may redeem the Senior Secured Notes at its option, in whole at any time or in part from time to time, upon giving not less than 10 nor more than 60 days’ notice, at a redemption price equal to 100% of the principal amount of the Senior Secured Notes redeemed, plus a “make-whole” premium and accrued and unpaid interest, if any, to, but excluding, the redemption date.
On or after November 15, 2027, the Issuer may redeem the Senior Secured Notes at its option, in whole at any time or in part from time to time, upon giving not less than 10 nor more than 60 days’ notice, at the redemption prices set forth in the Senior Secured Notes Indenture, plus accrued and unpaid interest, if any, to, but excluding, the redemption date.
The Issuer may also redeem the Senior Secured Notes prior to November 15, 2027, at any time or from time to time, in an amount equal to the net cash proceeds received by the Issuer or any parent thereof from any equity offering at a redemption price equal to 110.500% of the principal amount plus accrued and unpaid interest, if any, to but excluding the redemption date, in an aggregate principal amount for all such redemptions not to exceed 40% of the aggregate principal amount of the Senior Secured Notes (calculated after giving effect to any issuance of additional notes that are Senior Secured Notes), provided that the redemption takes place not later than 180 days after the closing of the related equity offering; and not less than 50% of the aggregate principal amount of the Senior Secured Notes remains outstanding immediately thereafter (excluding Senior Secured Notes held by the Company or any of its restricted subsidiaries), unless all such Senior Secured Notes are redeemed substantially concurrently.
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Changeof Control
If the Issuer experiences a change of control, the Issuer may be required to make an offer to repurchase the Senior Secured Notes from the holders thereof at a purchase price equal to 101% of the aggregate principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of such repurchase.
Covenantsand Events of Default
The terms of the Senior Secured Notes Indenture, among other things, limit the ability of the Issuer and its restricted subsidiaries to (i) incur or guarantee additional indebtedness or issue disqualified stock or preferred stock; (ii) pay dividends and make other distributions on, or redeem or repurchase, the Issuer’s capital stock; (iii) make loans and investments; (iv) prepay, redeem or repurchase indebtedness; (v) incur liens securing indebtedness; (vi) enter into transactions with affiliates; (vii) consolidate, merge or convey, transfer or lease all or substantially all of its assets; (viii) enter into agreements that restrict the ability of restricted subsidiaries to make dividends or other payments to the Issuer; (ix) designate our subsidiaries as unrestricted subsidiaries; and (x) transfer or sell assets. These covenants are subject to a number of important conditions, qualifications, exceptions and limitations that are described in the Senior Secured Notes Indenture.
The Senior Secured Notes Indenture provides for customary events of default (subject in certain cases to customary grace and cure periods), which include payment defaults, a failure to pay certain judgments and certain events of bankruptcy and insolvency. These events of default are subject to a number of important qualifications, limitations and exceptions that are described in the Senior Secured Notes Indenture.
The Senior Secured Notes were offered only to persons reasonably believed to be qualified institutional buyers in reliance on Rule 144A under the Securities Act or non-U.S. persons located outside of the United States and eligible to participate in an offering pursuant to Regulation S under the Securities Act. The Senior Secured Notes were not, and will not be, registered under the Securities Act or any state securities laws and may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the Securities Act and applicable state laws.
The foregoing summary of the (i) Senior Secured Notes Indenture does not purport to be complete and is qualified in its entirety by reference to the complete terms of the Senior Secured Notes Indenture, filed as Exhibit 4.5 hereto, and the form of Senior Secured Notes, filed as Exhibit 4.6 hereto, each of which is incorporated herein by reference and (ii) Escrow Agreement does not purport to be complete and is qualified in its entirety by reference to the complete terms of the Escrow Agreement, filed as Exhibit 4.7.
CertainRelationships
J.P. Morgan Securities LLC, the dealer manager for the Exchange Offer and Consent Solicitation and representative to the initial purchasers of the Senior Secured Notes, and its affiliates from time to time have provided in the past and may provide in the future various securities trading, commercial banking, investment banking, financial advisory, structuring, investment management, investment research, principal investment, hedging, financing, brokerage, and other financial services in the ordinary course of business to the Issuer, the Company, and their affiliates, and as such are entitled to customary fees and expenses in connection therewith. In addition, an affiliate of J.P. Morgan Securities LLC has acted as an arranger in prior financing transactions involving the Company and the Issuer.
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Item2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information contained in Item 1.01 above is hereby incorporated in this Item 2.03 by reference.
Item8.01 Other Events
ExchangeOffer and Consent Solicitation – Final Results
On October 20, 2025, the Issuer issued a press release announcing the final results of the previously announced Exchange Offer and Consent Solicitation. As of 5:00 p.m., New York City time, on October 17, 2025, representing the expiration time of the Exchange Offer, $294,686,000 aggregate principal amount of Old Notes were validly tendered (and not validly withdrawn) in the Exchange Offer, representing 98.23% of the total outstanding Old Notes tendered (and therefore consents validly delivered and not validly revoked). On October 21, 2025, the Issuer has confirmed acceptance of all tendered Old Notes. As a result, the Issuer issued New Notes in an aggregate principal amount of $294,686,000 in exchange for the $294,686,000 aggregate principal amount of Old Notes validly tendered.
This Current Report on Form 8-K shall not constitute an offer to sell or a solicitation of an offer to buy the New Notes or any other securities, and shall not constitute an offer, solicitation or sale in any jurisdiction in which such an offer, solicitation or sale would be unlawful. A copy of the press release announcing the final results of the Exchange Offer and Consent Solicitation is attached hereto as Exhibit 99.1 to this Current Report on Form 8-K.
ExchangeOffer and Consent Solicitation – Settlement
On October 21, 2025, the Issuer issued a press release announcing the settlement of the previously announced Exchange Offer and Consent Solicitation. According to Accuratus Tax and CA Services LLC, using the commercial names “Bondholder Communications Group” or “Bondcom”, the information and exchange agent for the Exchange Offer and Consent Solicitation, $294,686,000 aggregate principal amount of Old Notes were validly tendered (and not validly withdrawn) in the Exchange Offer by the Issuer and $5,314,000 aggregate principal amount of Old Notes remain outstanding. A copy of the press release announcing the settlement of the Exchange Offer and Consent Solicitation is included as Exhibit 99.2 hereto and incorporated by reference herein.
SeniorSecured Notes Offering - Closing
On October 21, 2025, the Issuer issued a press release announcing the closing of the previously announced offering of Senior Secured Notes.
The offering of the Senior Secured Notes was made in connection with Getty Images’ previously announced proposed Merger with Shutterstock, creating a premier visual company. Pursuant to the terms of the Escrow Agreement, the Issuer has caused to be deposited an amount equal to the gross proceeds of the offering of the Senior Secured Notes in an escrow account, secured in favor of the Escrow Agent by a first-priority security interest in the escrow account and all funds deposited therein. Upon release from escrow, Getty Images and the Issuer intend to use such escrowed proceeds furnished by the offering of Senior Secured Notes to pay approximately $350,000,000 of fees, expenses and cash consideration to holders of Shutterstock common stock payable in connection with the Merger (as defined below) and to use the remaining proceeds to refinance certain indebtedness of Shutterstock and pay fees and expenses in connection with this offering.
5
The Senior Secured Notes were offered only to persons reasonably believed to be qualified institutional buyers in reliance on Rule 144A under the Securities Act, and to non-U.S. persons outside the United States in reliance on Regulation S under the Securities Act. The Senior Secured Notes have not been and will not be registered under the Securities Act or any state securities laws, and may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the Securities Act and applicable state securities laws.
This Current Report on Form 8-K shall not constitute an offer to sell or a solicitation of an offer to buy the Senior Secured Notes or any other securities, and shall not constitute an offer, solicitation or sale in any jurisdiction in which such an offer, solicitation or sale would be unlawful. A copy of the press release announcing the closing of the offering of the Senior Secured Notes is included as Exhibit 99.2 hereto and incorporated by reference herein.
Forward Looking Statements
This Current Report contains forward-looking statements within the meaning of Section 27A of the Securities Act as amended, and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that reflect management’s current expectations, plans, and assumptions that management has made in light of their experience in the industry, as well as their perceptions of historical trends, current conditions, expected future developments, and other factors they believe are appropriate under the circumstances and at such time. Forward-looking statements include information concerning possible or assumed future results of operations, including statements regarding estimates and forecasts of other financial and performance metrics and projections of market opportunity, the application of the proceeds from the offering of the Senior Secured Notes, the compliance with the terms and conditions of the Escrow Agreement, the consummation of the Merger and compliance with the terms and conditions of the Merger Agreement.. These statements often include words such as “anticipate,” “expect,” “suggests,” “plan,” “believe,” “intend,” “estimates,” “targets,” “projects,” “should,” “could,” “would,” “may,” “will,” “forecast,” and other similar expressions or the negative of these words and phrases, other variations of these words and phrases or comparable terminology, but not all forward-looking statements include such identifying words.
These forward-looking statements are subject to and involve risks, uncertainties, and assumptions that may cause the Company’s actual results, performance, or achievements to differ materially from any future results, performance, or achievements expressed or implied by these forward-looking statements. Important factors that could lead to such material differences include, but are not limited to, the risks and uncertainties associated with the Exchange Offer and Consent Solicitation and offering and sale of the Senior Secured Notes. You are cautioned not to place undue reliance on forward-looking statements, which represent management’s beliefs and assumptions only as of the date of this Current Report. Actual future results may differ materially from what the Company expects. Important factors that could cause actual results to differ materially from the Company’s expectations are discussed in the section entitled “Risk Factors” set forth in each of the Exchange Offering Memorandum and that certain offering memorandum, dated as of October 6, 2025, setting forth the terms of the offer and sale of the Senior Secured Notes, as well as under the heading “Risk Factors” included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2024, filed with the Securities and Exchange Commission (“SEC”). These factors should not be considered exhaustive and should be read together with other cautionary statements included in the Company’s filings with the SEC. The Company expressly disclaims any obligation to publicly update or revise any forward-looking statements contained in this Current Report, whether as a result of new information, future developments, or otherwise, except as required by applicable federal securities law.
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
7
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Getty Images Holdings, Inc. | ||
|---|---|---|
| By: | /s/ Kjelti Kellough | |
| Name: | Kjelti Kellough | |
| Title: | Senior Vice President, General | |
| Counsel, and Corporate Secretary |
Date: October 21, 2025
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Exhibit 4.1
GETTY IMAGES, INC.,
as the Company,
EACH OF THE GUARANTORS PARTY HERETO
and
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee
INDENTURE
Dated as of October 21, 2025
PROVIDING FOR THE ISSUANCE OF NOTES IN SERIES
TABLE OF CONTENTS
| Page | ||
|---|---|---|
| ARTICLE I | ||
| Definitions and Incorporation by Reference | ||
| SECTION 1.1 | Definitions | 1 |
| SECTION 1.2 | Other Definitions | 45 |
| SECTION 1.3 | Rules of Construction | 46 |
| SECTION 1.4 | Incorporation by Reference of TIA | 47 |
| SECTION 1.5 | Limited Condition Transaction | 47 |
| SECTION 1.6 | Certain Compliance Calculations | 48 |
| ARTICLE II | ||
| The Notes | ||
| SECTION 2.1 | Forms Generally | 48 |
| SECTION 2.2 | Form of Trustee’s Certificate of Authentication | 50 |
| SECTION 2.3 | Restrictive and Global Note Legends | 51 |
| SECTION 2.4 | Amount Unlimited; Issuable in Series | 52 |
| SECTION 2.5 | Denominations | 53 |
| SECTION 2.6 | Execution, Authentication and Delivery and Dating | 54 |
| SECTION 2.7 | Temporary Notes | 54 |
| SECTION 2.8 | Registrar and Paying Agent | 55 |
| SECTION 2.9 | Mutilated, Destroyed, Lost and Stolen Notes | 56 |
| SECTION 2.10 | Payment of Interest Rights Preserved | 56 |
| SECTION 2.11 | Persons Deemed Owners | 58 |
| SECTION 2.12 | Cancellation | 58 |
| SECTION 2.13 | Computation of Interest | 58 |
| SECTION 2.14 | CUSIP Numbers, ISINs, etc. | 58 |
| SECTION 2.15 | Book-Entry Provisions for Global Notes | 58 |
| SECTION 2.16 | Special Transfer Provisions | 60 |
| SECTION 2.17 | Payment of Additional Interest | 63 |
| SECTION 2.18 | Paying Agent to Hold Money in Trust | 63 |
| SECTION 2.19 | Lists of Holders of the Notes | 63 |
| ARTICLE III | ||
| Covenants | ||
| SECTION 3.1 | Payment of Notes | 63 |
| SECTION 3.2 | Reports and Other Information | 64 |
| SECTION 3.3 | Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock | 67 |
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| SECTION 3.4 | Limitation on Restricted Payments | 74 |
|---|---|---|
| SECTION 3.5 | Liens | 82 |
| SECTION 3.6 | Dividend and Other Payment Restrictions Affecting Subsidiaries | 84 |
| SECTION 3.7 | Asset Sales | 86 |
| SECTION 3.8 | Transactions with Affiliates | 89 |
| SECTION 3.9 | Change of Control | 93 |
| SECTION 3.10 | Additional Guarantors | 95 |
| SECTION 3.11 | [Reserved] | 96 |
| SECTION 3.12 | Compliance Certificate; Statement by Officers as to Default | 96 |
| SECTION 3.13 | [Reserved] | 96 |
| SECTION 3.14 | Designation of Restricted and Unrestricted Subsidiaries | 96 |
| SECTION 3.15 | Covenant Suspension | 97 |
| SECTION 3.16 | Stay, Extension and Usury Laws | 98 |
| ARTICLE IV | ||
| Merger; Consolidation or Sale of Assets | ||
| SECTION 4.1 | When the Company or Holdings May Merge or Otherwise Dispose of Assets | 98 |
| ARTICLE V | ||
| Redemption of Notes | ||
| SECTION 5.1 | Applicability of Article | 101 |
| SECTION 5.2 | Right of Redemption | 101 |
| SECTION 5.3 | Election to Redeem; Notice to Trustee of Optional and Mandatory Redemptions | 102 |
| SECTION 5.4 | Notice of Redemption | 102 |
| SECTION 5.5 | Deposit of Redemption Price | 103 |
| SECTION 5.6 | Notes Payable on Redemption Date | 104 |
| SECTION 5.7 | Notes Redeemed in Part | 104 |
| SECTION 5.8 | Offer to Repurchase | 104 |
| ARTICLE VI | ||
| Defaults and Remedies | ||
| SECTION 6.1 | Events of Default | 106 |
| SECTION 6.2 | Acceleration | 108 |
| SECTION 6.3 | Other Remedies | 108 |
| SECTION 6.4 | Waiver of Past Defaults | 108 |
| SECTION 6.5 | Control by Majority | 108 |
| SECTION 6.6 | Limitation on Suits | 109 |
| SECTION 6.7 | Rights of Holders to Receive Payment | 109 |
| SECTION 6.8 | Collection Suit by Trustee | 109 |
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| SECTION 6.9 | Trustee May File Proofs of Claim | 109 |
|---|---|---|
| SECTION 6.10 | Priorities | 110 |
| SECTION 6.11 | Undertaking for Costs | 110 |
| ARTICLE VII | ||
| Trustee | ||
| SECTION 7.1 | Duties of Trustee | 110 |
| SECTION 7.2 | Rights of Trustee | 112 |
| SECTION 7.3 | Individual Rights of Trustee | 113 |
| SECTION 7.4 | Disclaimer | 114 |
| SECTION 7.5 | Notice of Defaults | 114 |
| SECTION 7.6 | Compensation and Indemnity | 114 |
| SECTION 7.7 | Replacement of Trustee | 115 |
| SECTION 7.8 | Successor Trustee by Merger | 115 |
| SECTION 7.9 | Eligibility; Disqualification | 115 |
| SECTION 7.10 | Limitation on Duty of Trustee | 115 |
| SECTION 7.11 | Preferential Collection of Claims Against the Company | 115 |
| SECTION 7.12 | Reports by Trustee to Holders of the Notes | 115 |
| ARTICLE VIII | ||
| Discharge of Indenture; Defeasance | ||
| SECTION 8.1 | Discharge of Liability on Securities; Defeasance | 116 |
| SECTION 8.2 | Conditions to Defeasance | 117 |
| SECTION 8.3 | Application of Trust Money | 118 |
| SECTION 8.4 | Repayment to Company | 118 |
| SECTION 8.5 | Indemnity for U.S. Government Obligations | 118 |
| SECTION 8.6 | Reinstatement | 119 |
| ARTICLE IX | ||
| Amendments | ||
| SECTION 9.1 | Without Consent of Holders | 119 |
| SECTION 9.2 | With Consent of Holders | 120 |
| SECTION 9.3 | Effect of Consents and Waivers | 121 |
| SECTION 9.4 | Notation on or Exchange of Notes | 122 |
| SECTION 9.5 | Trustee To Sign Amendments | 122 |
| ARTICLE X | ||
| Guarantees | ||
| SECTION 10.1 | Guarantees | 122 |
| SECTION 10.2 | Limitation on Liability; Termination, Release and Discharge | 124 |
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| SECTION 10.3 | Right of Contribution | 125 |
|---|---|---|
| SECTION 10.4 | No Subrogation | 125 |
| ARTICLE XI | ||
| INTENTIONALLY OMITTED | ||
| ARTICLE XII | ||
| Miscellaneous | ||
| SECTION 12.1 | Notices | 126 |
| SECTION 12.2 | Certificate and Opinion as to Conditions Precedent | 127 |
| SECTION 12.3 | Statements Required in Certificate or Opinion | 128 |
| SECTION 12.4 | [Reserved] | 128 |
| SECTION 12.5 | Rules by Trustee, Paying Agent and Registrar | 128 |
| SECTION 12.6 | Days Other than Business Days | 128 |
| SECTION 12.7 | Governing Law | 128 |
| SECTION 12.8 | Waiver of Jury Trial | 129 |
| SECTION 12.9 | No Recourse Against Others | 129 |
| SECTION 12.10 | Successors | 129 |
| SECTION 12.11 | Multiple Originals | 129 |
| SECTION 12.12 | Variable Provisions | 129 |
| SECTION 12.13 | Table of Contents; Headings | 129 |
| SECTION 12.14 | Force Majeure | 129 |
| SECTION 12.15 | USA Patriot Act | 129 |
| SECTION 12.16 | Severability | 129 |
| SECTION 12.17 | Communication by Holders with Other Holders | 129 |
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EXHIBITS
EXHIBIT A Form of Initial Note
EXHIBIT B Form of Exchange Note
EXHIBIT C Form of Certificate of Beneficial Ownership
EXHIBIT D Form of Regulation S Certificate
EXHIBIT E Form of Supplemental Indenture in Respect of Subsidiary Guarantees
EXHIBIT F Form of Certificate from Acquiring Institutional Accredited Investors
EXHIBIT G Form of Supplemental Indenture Establishing a Series of Notes
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INDENTURE, dated as of October 21, 2025, as amended or supplemented from time to time (this “Indenture”), among GETTY IMAGES, INC. a Delaware corporation, the Guarantors from time to time parties hereto and WILMINGTON TRUST, NATIONAL ASSOCIATION, as trustee (in such capacity, the “Trustee”).
Recitals of the Company
Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders (as defined herein) of the Notes (as defined herein):
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1 Definitions.
“Acquired Indebtedness” means, with respect to any specified Person:
(i) Indebtedness of any other Person existing at the time such other Person is merged, consolidated or amalgamated with or into or became a Restricted Subsidiary of such specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Subsidiary of such specified Person, and
(ii) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
Acquired Indebtedness will be deemed to have been Incurred, with respect to clause (i) of the preceding sentence, on the date such Person becomes a Restricted Subsidiary and, with respect to clause (ii) of the preceding sentence, on the date of consummation of such acquisition of such assets.
“Additional Notes” means notes issued under this Indenture in addition to the Initial Notes (other than notes issued pursuant to Section 2.7, 2.8, 2.9, 2.15(d), 2.15(e) or 5.7).
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
“Applicable Premium” means, with respect to any series of Notes, “Applicable Premium” as such term is defined in the Notes Supplemental Indenture establishing such series of Notes.
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“Asset Sale” means:
(i) the sale, conveyance, transfer or other disposition (whether in a single transaction or a series of related transactions and whether effected pursuant to a Division or otherwise) of property or assets (including by way of a Sale/Leaseback Transaction) of the Company or any Restricted Subsidiary or
(ii) the issuance or sale of Equity Interests (other than directors’ qualifying shares or shares or interests required to be held by foreign nationals or other third parties to the extent required by applicable law) of any Restricted Subsidiary (other than to the Company or another Restricted Subsidiary) (whether in a single transaction or a series of related transactions), (each of the foregoing referred to in this definition as a “disposition”), in each case, other than:
(1) a sale, exchange or other disposition of cash, Cash Equivalents or Investment Grade Securities, or of obsolete, damaged, unnecessary, unsuitable or worn out equipment, or other assets, in the ordinary course of business, or dispositions of property no longer used, useful or economically practicable to maintain in the conduct of the business of the Company and its Restricted Subsidiaries (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned);
(2) the sale, conveyance, lease or other disposition of all or substantially all of the assets of the Company or any Guarantor in compliance with the provisions described above under Section 4.1 or any disposition that constitutes a Change of Control;
(3) any Restricted Payment that is permitted to be made, and is made, under Section 3.4 or any Permitted Investment or any transaction specifically excluded from the definition of “Restricted Payment”;
(4) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary, in a single transaction or series of related transactions, with an aggregate Fair Market Value of less than $25.0 million;
(5) any transfer or other disposition of property or assets by a Restricted Subsidiary of the Company to the Company or by the Company or a Restricted Subsidiary of the Company to a Restricted Subsidiary of the Company;
(6) the creation of any Lien permitted under this Indenture;
(7) any disposition of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(8) the sale, lease, assignment, license or sublease of inventory, equipment, accounts receivable or other current assets held for sale in the ordinary course of business, and dispositions of accounts receivable in connection with the collection or compromise thereof;
(9) the lease, assignment, license, sublicense or sublease of any real or personal property in the ordinary course of business;
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(10) a sale of accounts receivable and related assets of the type specified in the definition of “Receivables Financing” to a Receivables Subsidiary in a Qualified Receivables Financing or in factoring or similar transactions;
(11) a transfer of accounts receivable and related assets of the type specified in the definition of “Receivables Financing” (or a fractional undivided interest therein) by a Receivables Subsidiary in a Qualified Receivables Financing;
(12) any exchange of assets for Related Business Assets (including a combination of Related Business Assets and a de minimis amount of cash or Cash Equivalents) of comparable or greater market value, as determined in good faith by the Company;
(13) (i) non-exclusive licenses, sublicenses or cross-licenses of intellectual property and (ii) exclusive licenses, sublicenses or cross-licenses of intellectual property in the ordinary course of business of the Company and its Restricted Subsidiaries;
(14) the sale in a Sale/Leaseback Transaction of any property acquired after the Issue Date within twelve months of the acquisition of such property;
(15) the surrender or waiver of contract rights or settlement, release or surrender of a contract, tort or other litigation claim in the ordinary course of business;
(16) dispositions arising from foreclosures, condemnations, eminent domain or any similar action on assets not prohibited by this Indenture, dispositions of property subject to casualty events and (except for purposes of calculating Net Cash Proceeds of any Asset Sale under Sections 3.7(b) and 3.7(c)) dispositions necessary or advisable (as determined by the Company in good faith) in order to consummate any acquisition of any Person, business or assets;
(17) (i) dispositions of Investments (including Equity Interests) in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements and (ii) the transfer for fair value of property (including Equity Interests of Subsidiaries) to another Person in connection with a joint venture arrangement with respect to the transferred property; provided that such transfer is permitted under Section 3.4; and
(18) any sale or disposition of assets pursuant to the Option Agreement.
“Bankruptcy Law” means Title 11, United States Code, or any similar Federal or state law for the relief of debtors.
“Board of Directors” means as to any Person, the board of directors or managers, sole member or managing member, as applicable, of such Person (or, if such Person is a partnership, the board of directors or other governing body of the general partner of such Person) or any duly authorized committee thereof.
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“Business Day” means a day other than a Saturday, Sunday or other day on which banking institutions are authorized or required by law to close in New York City or, with respect to any payments to be made under this Indenture, the place of payment.
“Capital Stock” means:
(i) in the case of a corporation, corporate stock;
(ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(iii) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
(iv) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
“Capitalized Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) in accordance with GAAP.
“Cash Contribution Amount” means the aggregate amount of cash contributions made to the capital of the Company or any Guarantor and designated as a “Cash Contribution Amount” as described in the definition of “Contribution Indebtedness.”
“Cash Equivalents” means:
(i) U.S. Dollars, Canadian Dollars, pounds sterling, euros or the national currency of any participating member state of the European Union and, with respect to any Foreign Subsidiaries, other currencies held by such Foreign Subsidiary in the ordinary course of business;
(ii) securities issued or directly and fully guaranteed or insured by the government of the United States or any country that is a member of the European Union or any agency or instrumentality thereof in each case with maturities not exceeding two years from the date of acquisition;
(iii) certificates of deposit, time deposits and eurodollar time deposits with maturities of two years or less from the date of acquisition, bankers’ acceptances, in each case with maturities not exceeding two years, and overnight bank deposits, in each case with any lender under the Senior Credit Agreement or any other commercial bank having capital and surplus in excess of $250 million in the case of domestic banks or $100 million (or the dollar equivalent thereof) in the case of foreign banks;
(iv) repurchase obligations for underlying securities of the types described in clauses (ii) and (iii) above and clause (vi) below entered into with any financial institution meeting the qualifications specified in clause (iii) above or securities dealers of recognized national standing;
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(v) commercial paper or variable or fixed rate notes issued by a corporation or other Person (other than an Affiliate of the Company) rated at least “A-3” or the equivalent thereof by Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized ratings agency) and in each case maturing within one year after the date of acquisition, and commercial paper or variable or fixed rate notes issued by or guaranteed by any lender under the Senior Credit Agreement or any bank holding company owning any such lender;
(vi) readily marketable direct obligations issued by any state of the United States of America or any political subdivision thereof having an Investment Grade Rating from either Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized ratings agency) in each case with maturities not exceeding two years from the date of acquisition;
(vii) Indebtedness issued by Persons (other than the Getty Investors) with a rating of “A” or higher from S&P or “A-2” or higher from Moody’s in each case with maturities not exceeding two years from the date of acquisition, and marketable short-term money market and similar securities having a rating of at least A-2 or P-2 from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service);
(viii) investment funds investing at least 95% of their assets in investments of the types described in clauses (i) through (vii) above;
(ix) Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated AAA (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s; and
(x) in the case of investments by any Foreign Subsidiary or investments made in a country outside the United States of America, other customarily utilized high-quality investments in the country where such Foreign Subsidiary is located or in which such investment is made.
“Change of Control” means the occurrence of any of the following:
(i) the Company becomes aware of the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than one or more of the Permitted Holders, in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of Equity Interests or otherwise, of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) of Voting Stock of the Company representing 50% or more of the total voting power of the Voting Stock of the Company; provided that so long as the Company is a Subsidiary of any Permitted Parent, no Person or group shall be deemed to be or become a beneficial owner of Voting Stock of the Company representing 50% or more of the total voting power of the Voting Stock of the Company unless such Person or group shall be or become a beneficial owner of Voting Stock of such Permitted Parent representing 50% or more of the total voting power of the Voting Stock of such Permitted Parent; or
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(ii) the sale, lease or transfer, in one or a series of related transactions, of all or substantially all the assets of the Company and its Subsidiaries, taken as a whole, to a Person other than one or more of the Permitted Holders and any Person or group (as defined in clause (i) above), other than one or more Permitted Holders, is or becomes the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) of Voting Stock of the transferee Person in such sale, lease or transfer of assets representing 50% or more of the total voting power of the Voting Stock of such transferee Person; provided that so long as such transferee Person is a Subsidiary of a parent Person, no Person or group shall be deemed to be or become a beneficial owner of Voting Stock of the transferee Person in such sale, lease or transfer of assets representing 50% or more of the total voting power of the Voting Stock of such transferee Person unless such Person or group shall be or become a beneficial owner of Voting Stock of such parent Person representing 50% or more of the total voting power of the Voting Stock of such parent Person.
Notwithstanding the foregoing: (A) the transfer of assets between or among the Company and its Restricted Subsidiaries shall not itself constitute a Change of Control, so long as such transfer is made in accordance with Article IV and (B) a Person or group that is acquiring securities pursuant to a stock purchase agreement, merger agreement or similar agreement (or voting or option agreement related thereto) shall not be deemed to be a beneficial owner of such securities until the consummation of the transactions contemplated by such agreement.
“Clearstream” means Clearstream Banking, Société Anonyme.
“Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time.
“Common Equity Offering” means the issuance of Class E Units of Super HoldCo contemplated by the supplemental equity letter, dated as of January 31, 2019, among Super HoldCo, the Sponsor and certain of the Getty Investors that occurred on or shortly following the Original Issue Date.
“Company” means (i) Getty Images, Inc. and (ii) any successor in interest thereto.
“Company Order” means a written request or order signed in the name of the Company by any Officer of the Company.
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“Consolidated First Lien Debt Ratio” as of any date of determination (for purposes of this definition, the “Calculation Date”) means the ratio of (1) (x) Consolidated Total Indebtedness of the Company and its Restricted Subsidiaries that is secured by a Lien (excluding any Lien ranking junior to the Liens securing the obligations under the Senior Credit Agreement or the Secured Notes) as of such date (after giving effect to any Incurrence or repayment, repurchase, redemption, defeasance or other acquisition, retirement or discharge of Indebtedness on such date) minus (y) up to $100.0 million in the aggregate of unrestricted cash and Cash Equivalents that would be stated on the balance sheet of the Company and its Restricted Subsidiaries and held by the Company and its Restricted Subsidiaries as of such date of determination (provided that cash and Cash Equivalents listed as “restricted” in connection with any of the obligations under the Senior Credit Agreement, the Secured Notes or any Indebtedness that, pursuant to the terms of the Senior Credit Agreement, is subject to an intercreditor agreement and permitted to be secured by liens on the collateral securing the obligations under the Senior Credit Agreement on a pari passu or junior basis with the liens securing the obligations under the Senior Credit Agreement shall not be deemed to be “restricted” for purposes of making the computation set forth in this paragraph) to (2) the EBITDA of the Company and its Restricted Subsidiaries for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding such date; provided that (in the event that the Company shall classify Indebtedness (i) Incurred on the date of determination as incurred in part pursuant to Section 3.3(b)(i) and in part pursuant to one or more other clauses of Section 3.3(b), as provided in Section 3.3(c) any calculation of Consolidated Total Indebtedness that is secured by a Lien for purposes of clause (x) above shall not include any such Indebtedness (and shall not give effect to any repayment, repurchase, redemption, defeasance or other acquisition, retirement or discharge of Indebtedness from the proceeds thereof) to the extent incurred pursuant to any such other clause of Section 3.3(b) or (ii) secured in part pursuant to clause (6) of the “Permitted Liens” definition and in part pursuant to one or more other clauses of such definition, as provided in the final paragraph of such definition) any calculation of Consolidated Total Indebtedness that is secured by a Lien for purposes of clause (x) above shall not include any such Indebtedness (and shall not give effect to any repayment, repurchase, redemption, defeasance or other acquisition, retirement or discharge of Indebtedness from the proceeds thereof) to the extent secured pursuant to any such other clause of such definition.
For purposes of making the computation referred to above, a pro forma event shall be calculated as set forth in the definition of “Consolidated Total Debt Ratio”.
“Consolidated Interest Expense” means, with respect to any Person for any period, the sum, without duplication, of:
(i) interest expense of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, to the extent such expense was deducted in computing Consolidated Net Income of such Person (including (a) amortization of original issue discount, (b) the interest component of Capitalized Lease Obligations, and (c) net payments and receipts (if any) pursuant to interest rate Hedging Obligations with respect to Indebtedness and excluding (w) amortization of deferred financing fees, (x) expensing of any bridge or other financing fees, (y) the non-cash portion of interest expense resulting from the reduction in the carrying value under purchase accounting of such Person’s outstanding Indebtedness and (z) commissions, discounts, yield and other fees and charges (including any interest expense) related to any Receivables Financing);
(ii) interest on Indebtedness of such Person and its Restricted Subsidiaries described in Section 3.4(b)(xiii)(b), on a consolidated basis (to the extent not already included in clause (i) above); and
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(iii) consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued;
less interest income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis;
provided that, for purposes of calculating Consolidated Interest Expense, no effect shall be given to the discount and/or premium resulting from the bifurcation of derivatives under FASB ASC 815 and related interpretations as a result of the terms of the Indebtedness to which such Consolidated Interest Expense relates.
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 GAAP.
“Consolidated Net Income” means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis; provided, however, that, without duplication:
(i) any net after-tax effect of extraordinary, nonrecurring or unusual gains or losses or income or expenses (including the effect of all fees and expenses relating thereto), including, without limitation, any fees, expenses, charges or payments related to the Transactions, operating expenses directly attributable to the implementation of cost savings initiatives, facilities’ opening costs, public company costs, signing costs, costs associated with renegotiation of rents and costs consisting of professional, consulting or other fees relating to any of the foregoing shall be excluded;
(ii) the Net Income for such period shall not include the cumulative effect of a change in accounting principles during such period;
(iii) the amount of any net income or loss from discontinued operations in accordance with GAAP and any net after-tax effect of gains or losses on disposal of discontinued operations shall be excluded;
(iv) any net after-tax gains or losses (including the effect of all fees and expenses or charges relating thereto) attributable to business dispositions (including Capital Stock of any Person) or asset dispositions or abandonments other than in the ordinary course of business (as determined in good faith by the Company) shall be excluded;
(v) any net after-tax gains or losses (including the effect of all fees and expenses or charges relating thereto) attributable to the early extinguishment or cancellation of Indebtedness, Hedging Obligations and other derivative instruments, or resulting from the purchase or acquisition, and subsequent cancellation, of any loans under the Senior Credit Agreement by any affiliate of the Company (including in each case deferred financing costs written off and premiums paid), shall be excluded;
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(vi) the Net Income for such period of any other Person that is not a Subsidiary of such Person, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting (other than a Guarantor), shall be included only to the extent of the amount of dividends or distributions or other payments paid in cash or Cash Equivalents (or to the extent converted into cash or Cash Equivalents) to the referent Person or a Restricted Subsidiary thereof in respect of such period;
(vii) solely for the purpose of determining the amount available for Restricted Payments under Section 3.4(a)(iii)(A), the Net Income for such period of any Restricted Subsidiary (other than any Subsidiary Guarantor) shall be excluded to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of its Net Income is not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless all such restrictions with respect to the payment of dividends or similar distributions have been legally waived; provided that the Consolidated Net Income of such Person shall be increased by the amount of dividends or other distributions or other payments actually paid in cash or Cash Equivalents (or converted into cash or Cash Equivalents) by any such Restricted Subsidiary to such Person, to the extent not already included therein;
(viii) stock-based, partnership interest-based and similar incentive-based compensation award or arrangement expenses (including with respect to any profits interest relating to membership interests in any partnership or limited liability company), and any non-cash compensation expense realized from employee benefit plans or post-employment benefit plans, grants of stock appreciation or similar rights, stock options or other rights to officers, directors and employees of such Person or any of its Restricted Subsidiaries, shall be excluded;
(ix) (a) (i) the non-cash portion of “straight-line” rent expense shall be excluded and (ii) the cash portion of “straight-line” rent expense that exceeds the amount expensed in respect of such rent expense shall be included and (b) any net unrealized gains and losses resulting from fair value accounting required by FASB ASC 815 shall be excluded;
(x) any net unrealized gains and losses relating to mark-to-market of amounts denominated in foreign currencies resulting from the application of FASB ASC 830 shall be excluded;
(xi) any (a) severance or relocation costs or expenses, (b) non-cash compensation charges, (c) costs and expenses after the Issue Date related to employment of terminated employees, or (d) costs or expenses realized in connection with or resulting from stock appreciation or similar rights, stock options or other rights of officers, directors and employees, and (e) any fees and expenses relating to any of the foregoing clauses (a) through (d), in each case of such Person or any of its Restricted Subsidiaries, shall be excluded;
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(xii) accruals and reserves, contingent liabilities, charges associated with settlement of stock-based compensation and any gains and losses on the settlement of any pre-existing contractual or non-contractual relationships as a result of the Transactions that are so required to be established, settled or adjusted in accordance with GAAP or as a result of adoption or modification of accounting policies shall be excluded;
(xiii) the effect of any non-cash impairment charges or write-ups, write-downs or write-offs of assets (including intangible assets, goodwill and deferred financing costs but excluding accounts receivable) or liabilities resulting from the application of GAAP (including in connection with the Transactions) and the amortization of intangibles arising from the application of GAAP (excluding any non-cash item to the extent that it represents an accrual of or reserve for cash expenditures in any future period except to the extent such item is subsequently reversed) shall be excluded;
(xiv) any non-cash interest expense and non-cash interest income, in each case to the extent there is no associated cash disbursement or receipt, as the case may be, before the earlier of the maturity date of the Notes and the date on which all the Notes cease to be outstanding, shall be excluded;
(xv) any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any acquisition, investment, asset disposition, issuance or repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transaction consummated prior to the Issue Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction shall be excluded; and
(xvi) the effects from applying purchase accounting, including applying purchase accounting to inventory, property and equipment, software and other intangible assets and deferred revenue required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to such Person and the Restricted Subsidiaries) any acquisition consummated prior to the Issue Date, or any other future acquisitions or the amortization or write-off of any amounts thereof, shall be excluded.
In addition, to the extent not already included in the Consolidated Net Income of such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include the amount of any cash tax benefits related to the tax amortization of intangible assets in the relevant period.
Notwithstanding the foregoing, for the purpose of Section 3.4 only, there shall be excluded from Consolidated Net Income any dividends, repayments of loans or advances or other transfers of assets from Unrestricted Subsidiaries of the Company or a Restricted Subsidiary of the Company to the extent such dividends, repayments or transfers increase the amount of Restricted Payments permitted under Section 3.4(a)(C)(5) or (6).
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“Consolidated Non-cash Charges” means, with respect to any Person for any period, the aggregate depreciation, amortization (including amortization of intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period), impairment, non-cash compensation and other non-cash expenses of such Person and its Restricted Subsidiaries reducing Consolidated Net Income of such Person for such period on a consolidated basis and otherwise determined in accordance with GAAP; provided that if any non-cash charges referred to in this definition represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from EBITDA in such future period to such extent paid.
“Consolidated Senior Secured Debt Ratio” as of any date of determination (for purposes of this definition, the “Calculation Date”), means, the ratio of (1) (x) Consolidated Total Indebtedness of the Company and its Restricted Subsidiaries that is secured by a Lien as of such date (after giving effect to any Incurrence or repayment, repurchase, redemption, defeasance or other acquisition, retirement or discharge of Indebtedness on such date) minus (y) up to $100.0 million in the aggregate of unrestricted cash and Cash Equivalents that would be stated on the balance sheet of the Company and its Restricted Subsidiaries and held by the Company and its Restricted Subsidiaries as of such date of determination (provided that cash and Cash Equivalents listed as “restricted” in connection with any of the obligations under the Senior Credit Agreement or any Indebtedness that, pursuant to the terms of the Senior Credit Agreement, is subject to an intercreditor agreement and permitted to be secured by liens on the collateral securing the obligations under the Senior Credit Agreement on a pari passu or junior basis with the liens securing the obligations under the Senior Credit Agreement shall not be deemed to be “restricted” for purposes of making the computation set forth in this paragraph) to (2) the EBITDA of the Company and its Restricted Subsidiaries for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding such date; provided that (in the event that the Company shall classify Indebtedness Incurred on the date of determination as secured in part pursuant to clause (24) of the “Permitted Liens” definition and in part pursuant to one or more other clauses of such definition, as provided in the final paragraph of such definition) any calculation of Consolidated Total Indebtedness that is secured by a Lien for purposes of clause (x) above shall not include any such Indebtedness (and shall not give effect to any repayment, repurchase, redemption, defeasance or other acquisition, retirement or discharge of Indebtedness from the proceeds thereof) to the extent secured pursuant to any such other clause of such definition.
For purposes of making the computation referred to above, a pro forma event shall be calculated as set forth in the definition of “Consolidated Total Debt Ratio”.
“Consolidated Taxes” means, with respect to any Person and its Restricted Subsidiaries on a consolidated basis for any period, provision for taxes based on income, profits or capital, including, without limitation, state, franchise and similar taxes and foreign withholding taxes (including penalties and interest related to such taxes or arising from tax examinations), and including (without duplication, and to the extent not otherwise included) an amount equal to the amount of tax distributions actually made to the holders of Capital Stock of such Person or any direct or indirect parent of such Person in respect of such period in accordance with Section 3.4(b)(xii), which shall be included as though such amounts had been paid as income taxes directly by such Person.
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“Consolidated Total Debt Ratio” means, as of any date of determination (for purposes of this definition, the “Calculation Date”) the ratio of (1) (x) Consolidated Total Indebtedness of the Company and its Restricted Subsidiaries as of such date (after giving effect to any Incurrence or repayment, repurchase, redemption, defeasance or other acquisition, retirement or discharge of Indebtedness on such date) minus (y) up to $100.0 million in the aggregate of unrestricted cash and Cash Equivalents that would be stated on the balance sheet of the Company and its Restricted Subsidiaries and held by the Company and the Restricted Subsidiaries as of such date of determination (provided that cash and Cash Equivalents listed as “restricted” in connection with any of the obligations under the Senior Credit Agreement or any Indebtedness that, pursuant to the terms of the Senior Credit Agreement, is subject to an intercreditor agreement and permitted to be secured by liens on the collateral securing the obligations under the Senior Credit Agreement on a pari passu or junior basis with the liens securing the obligations under the Senior Credit Agreement shall not be deemed to be “restricted” for purposes of making the computation set forth in this paragraph) to (2) the EBITDA of the Company and its Restricted Subsidiaries for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding such date; provided that, for purposes of the foregoing calculation, in the event that the Company shall classify Indebtedness Incurred on the date of determination as Incurred in part pursuant to Section 3.3(a) and/or Section 3.3(b)(xv) (other than by reason of Section 3.3(b)(xv)(2)) and in part pursuant to one or more other clauses of Section 3.3(b) (as provided in Section 3.3(c)), Consolidated Total Indebtedness shall not include any such Indebtedness Incurred pursuant to one or more such other clauses of Section 3.3(b), and shall not give effect to any repayment, repurchase, redemption, defeasance or other acquisition, retirement or discharge of Indebtedness from the proceeds thereof.
For purposes of making the computation referred to above, Investments, acquisitions, dispositions, mergers, consolidations and discontinued operations, in each case with respect to a company, a business or an operating unit of a business, and operational changes, that the Company or any of its Restricted Subsidiaries has made after the Issue Date and during the four-quarter reference period or subsequent to such reference period and on or prior to or simultaneously with the Calculation Date (each, for purposes of this definition, a “pro forma event”) shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, consolidations, discontinued operations and operational changes had occurred on the first day of the four-quarter reference period. If since the beginning of such period and on or prior to or simultaneously with the Calculation Date any Person that subsequently became a Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary since the beginning of such period and on or prior to or simultaneously with the Calculation Date shall have made or effected any Investment, acquisition, disposition, merger, consolidation or discontinued operation, in each case with respect to a company, a business or an operating unit of a business, or operational change that would have required adjustment pursuant to this definition, then the Consolidated Total Debt Ratio shall be calculated giving pro forma effect thereto for such period as if such Investment, acquisition, disposition, merger, consolidation, discontinued operation or operational change had occurred at the beginning of the applicable four-quarter period.
For purposes of this definition, the definition of “Consolidated First Lien Debt Ratio” and the definition of “Consolidated Senior Secured Debt Ratio”, whenever pro forma effect is to be given to any pro forma event, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Company. Any such pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments of the type used in connection with the calculation of “Adjusted EBITDA” as set forth in “Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations—Non-GAAP Financial Measures--Reconciliation of Adjusted EBITDA, Adjusted EBITDA Margin, and Adjusted EBITDA less Capex” in the Quarterly Report on Form 10-Q of Getty Images Holdings, Inc. for the quarterly period ended June 30, 2025 to the extent such adjustments, without duplication, continue to be applicable to such four-quarter period.
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“Consolidated Total Indebtedness” means, as of any date of determination, an amount equal to (1) the aggregate principal amount of Indebtedness of the Company and its Restricted Subsidiaries outstanding on such date, determined on a consolidated basis, to the extent required to be recorded on a balance sheet in accordance with GAAP, consisting of Indebtedness for borrowed money, Capitalized Lease Obligations and debt obligations evidenced by promissory notes or similar instruments and (2) the aggregate amount of all outstanding Disqualified Stock of the Company and all Disqualified Stock and Preferred Stock of its Restricted Subsidiaries on a consolidated basis, with the amount of such Disqualified Stock and Preferred Stock equal to the greater of their respective voluntary or involuntary liquidation preferences and maximum fixed repurchase prices, in each case determined on a consolidated basis in accordance with GAAP. For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Stock or Preferred Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock or Preferred Stock as if such Disqualified Stock or Preferred Stock were purchased on any date on which Consolidated Total Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the fair market value of such Disqualified Stock or Preferred Stock, such fair market value shall be determined reasonably and in good faith by the Company.
“Contingent Obligations” means, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent:
(i) to purchase any such primary obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds:
(1) for the purchase or payment of any such primary obligation; or
(2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; or
(iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.
“Contribution Indebtedness” means Indebtedness of the Company or any Restricted Subsidiary in an aggregate principal amount, together with any Refinancing Indebtedness in respect thereof, not greater than the aggregate amount of cash contributions (other than Excluded Contributions) made to the capital of the Company or any Restricted Subsidiary (other than, in the case of such Restricted Subsidiary, contributions by the Company or any Restricted Subsidiary to its capital) after the Issue Date and designated as a Cash Contribution Amount; provided that such Contribution Indebtedness is Incurred within 210 days after the making of such cash contributions.
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“Corporate Trust Office” shall be at the address of the Trustee specified in Section 12.1 or such other address as to which the Trustee may give notice to the Company or Holders pursuant to the procedures set forth in Section 12.1.
“Credit Agreement” means (i) the Senior Credit Agreement, (ii) the Secured Notes, and (iii) whether or not the Senior Credit Agreement or the Secured Notes remain outstanding, if designated by the Company to be included in the definition of “Credit Agreement,” one or more (A) debt facilities, indentures or commercial paper facilities providing for revolving credit loans, term loans, notes, debentures, receivables financing (including through the sale of receivables to lenders or to special purpose entities formed to borrow from lenders against such receivables) or letters of credit, (B) debt securities, notes, mortgages, guarantees, collateral documents, indentures or other forms of debt financing (including convertible or exchangeable debt instruments or bank guarantees or bankers’ acceptances), or (C) instruments or agreements evidencing any other Indebtedness, in each case, with the same or different borrowers or issuer and, in each case, as amended, supplemented, modified, extended, restructured, renewed, refinanced, restated, increased (provided that such increase in borrowings is permitted under Section 3.3), replaced or refunded in whole or in part from time to time and whether by the same or any other agent, lender or investor or group of lenders or investors.
“Custodian” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.
“Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Depositary” means The Depository Trust Company, its nominees and their respective successors and assigns, or such other depository institution hereinafter appointed by the Company.
“Designated Non-cash Consideration” means the Fair Market Value of non-cash consideration received by the Company or one of its Restricted Subsidiaries in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officer’s Certificate, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Non-cash Consideration.
“Designated Preferred Stock” means Preferred Stock of the Company or any direct or indirect parent of the Company, as applicable (other than Excluded Equity), that is issued after the Issue Date for cash and is so designated as Designated Preferred Stock, pursuant to an Officer’s Certificate, on the issuance date thereof, the cash proceeds of which are contributed to the capital of the Company (if issued by Super Holdco or any other direct or indirect parent of the Company) and excluded from the calculation set forth in Section 3.4(a)(C).
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“Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person that, by its terms (or by the terms of any security into which it is convertible or for which it is redeemable or exchangeable), in each case, at the option of the holder thereof or upon the happening of any event:
(i) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than as a result of a change of control or asset sale; provided that the relevant asset sale or change of control provisions, taken as a whole, are no more favorable in any material respect to holders of such Capital Stock than the asset sale and change of control provisions applicable to the Notes and any purchase requirement triggered thereby may not become operative until compliance with the asset sale and change of control provisions applicable to the Notes (including the purchase of any Notes tendered pursuant thereto)),
(ii) is convertible or exchangeable for Indebtedness or Disqualified Stock, or
(iii) is redeemable at the option of the holder thereof, in whole or in part,
in each case prior to 91 days after the maturity date of the Notes; provided, however, that only the portion of Capital Stock that so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock; provided, further, however, that if such Capital Stock is issued to any employee or to any plan for the benefit of employees of the Company or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Company in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability; provided, further, that any class of Capital Stock of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of Capital Stock that is not Disqualified Stock shall not be deemed to be Disqualified Stock. The Preferred Equity Interests shall not be deemed to be Disqualified Stock.
“Dividing Person” has the meaning assigned to it in the definition of “Division”.
“Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.
“Division Successor” means any Person that, upon the consummation of a Division of a Dividing Person, holds all or any portion of the assets, liabilities and/or obligations previously held by such Dividing Person immediately prior to the consummation of such Division. A Dividing Person which retains any of its assets, liabilities and/or obligations after a Division shall be deemed a Division Successor upon the occurrence of such Division.
“Domestic Subsidiary” means any Subsidiary that (i) is organized under the laws of the United States, any state thereof or the District of Columbia and (ii) is not a Foreign Subsidiary or a Foreign Subsidiary Holdco.
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“EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period:
(i) increased, without duplication, to the extent the same (except in the case of clause (8)) was deducted in calculating Consolidated Net Income of such Person by:
(1) Consolidated Taxes of such Person; plus
(2) Fixed Charges of such Person for such period (including (x) net losses on Hedging Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk and (y) costs of surety bonds in connection with financing activities), plus amounts excluded from the definition of “Consolidated Interest Expense” pursuant to clauses 1(w) through 1(z) thereof; plus
(3) Consolidated Non-cash Charges of such Person; plus
(4) (A) the amount of management, monitoring, consulting and advisory fees, termination payments and related expenses paid (or any accruals relating to such fees and related expenses) during such period to the extent permitted by Section 3.8 and (B) the amount of expenses relating to payments made to option holders (or employees holding other rights tied to the equity value of the Company or any of its direct or indirect parent companies) of the Company or any of its direct or indirect parent companies in connection with, or as a result of, any distribution being made to shareholders of such Person or its direct or indirect parent companies, which payments are being made to compensate such option holders as though they were shareholders at the time of, and entitled to share in, such distribution, in each case to the extent permitted under this Indenture; plus
(5) any expenses or charges (other than Consolidated Non-cash Charges) related to any issuance or redemption of Equity Interests, Investment, acquisition, disposition, recapitalization or the Incurrence of Indebtedness permitted to be Incurred by this Indenture (including a refinancing thereof) (whether or not successful), including (i) such fees, expenses or charges related to (x) the offering of the Notes or (y) the Transactions, (ii) any amendment or other modification of the Notes, Equity Interests or other Indebtedness and (iii) commissions, discounts, yield and other fees and charges (including any interest expense) related to any Qualified Receivables Financing; plus
(6) the amount of loss on sale of receivables and related assets to a Receivables Subsidiary in connection with a Qualified Receivables Financing; plus
(7) the amount of any restructuring charges, accruals or reserves (which, for the avoidance of doubt, shall include retention, severance, systems establishment cost, excess pension charges, contract termination costs, including future lease commitments, integration costs, transition costs, costs related to the start up, closure, relocation or consolidation of facilities and costs to relocate employees), any costs associated with tax projects/audits, signing, retention or completion bonuses, and any fees and expenses relating to any of the foregoing; plus
(8) the amount of “run rate” cost savings projected by the Company in good faith to be realized as the result of specified actions taken or expected to be taken within 12 months after the consummation of any acquisition or operational change, respectively (calculated on a pro forma basis as though such cost savings had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions (it being understood that “run rate” shall mean the full recurring benefit that is associated with any action taken); plus
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(9) any costs or expense incurred pursuant to any management equity plan or stock option plan or other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Company or a Guarantor or the net cash proceeds of an issuance of Equity Interests of the Company (other than Excluded Equity) solely to the extent that such net cash proceeds are excluded from the calculation of the amount available for Restricted Payments under Section 3.4(a)(C)(1); plus
(10) the amount of any non-controlling interest expense consisting of Subsidiary income attributable to minority equity interests of third parties in any non-Wholly Owned Subsidiary deducted (and not added back) in such period in calculating Consolidated Net Income excluding cash distributions in respect thereof; plus
(11) any expenses, charges or losses that are covered by indemnification, refunding or other reimbursement provisions in connection with any Investment, acquisition or any sale, conveyance, transfer or other Asset Sale permitted under this Indenture, to the extent actually reimbursed or paid, or, so long as the Company has received notification from the applicable Person that it intends to reimburse or pay such expenses, charges or losses; provided that to the extent that such amount is not in fact reimbursed or paid within 18 months of the date of such notification, any such amount not paid within such 18-month period that was added back pursuant to this clause (11) shall be deducted in the next period to the extent not so reimbursed or paid, such expenses, charges or losses; plus
(12) to the extent covered by insurance and actually reimbursed or paid, or, so long as the Company has made a determination that such amount will in fact be reimbursed or paid by the insurer and only to the extent that such amount is in fact reimbursed or paid within 18 months of the date of such determination (with a deduction for any amount so added back to the extent not so reimbursed or paid within such 18-month period), expenses, charges or losses with respect to liability or casualty event or business interruption; plus
(13) the amount necessary to account for any adjustments on or prior to March 31, 2021, necessary to address the effects of changes in revenue recognition requirements pursuant to ASC 606 (as determined in good faith by the Company, which determination shall be conclusive) during such period;
(ii) decreased by, without duplication, non-cash items increasing Consolidated Net Income of such Person for such period (excluding any items that represent the reversal of any accrual of, or cash reserve for, anticipated cash charges that reduced EBITDA in any prior period; provided that, if any non-cash items represent a potential cash item in any future period, the cash receipt in respect thereof in such future period shall be added to EBITDA to such extent in such future period);
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(iii) increased or decreased by, without duplication, any net unrealized gains and losses relating to mark-to-market of amounts denominated in foreign currencies resulting from the application of FASB ASC 830;
(iv) increased or decreased by, without duplication, any gain or loss relating to amounts received or paid in cash prior to the stated settlement date of any Hedging Obligation (excluding Hedging Obligations entered into for the purpose of hedging against fluctuations in the price or availability of any commodity) that has been reflected in Consolidated Net Income in the such period; and
(v) increased or decreased by, without duplication, any gain or loss relating to Hedging Obligations (excluding Hedging Obligations entered into for the purpose of hedging against fluctuations in the price or availability of any commodity) associated with transactions realized in the current period that has been excluded from Consolidated Net Income in prior periods pursuant to clause (ix) thereof or reflected in Consolidated Net Income in prior periods and excluded from EBITDA pursuant to clause (4) above.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“Equity Offering” means any public or private sale after the Issue Date of capital stock or Preferred Stock of the Company or any direct or indirect parent of the Company, as applicable (other than Disqualified Stock), other than:
(i) public offerings with respect to the Company’s or such direct or indirect parent’s common stock registered on Form S-4 or Form S-8;
(ii) issuances to any Subsidiary of the Company; and
(iii) any such public or private sale that constitutes an Excluded Contribution or Refunding Capital Stock.
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear system.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Exchange Notes” means Notes containing terms substantially identical to any Initial Additional Notes of a particular series (and any Notes issued in respect of any of such Notes pursuant to Section 2.7, 2.8, 2.9, 2.15(d), 2.15(e) or 5.7) (except that (i) such Exchange Notes may omit terms with respect to transfer restrictions and may be registered under the Securities Act, and (ii) certain provisions relating to an increase in the stated rate of interest thereon may be eliminated), that are issued and exchanged for such Initial Additional Notes, as may be provided in any registration rights agreement relating to such Additional Notes and this Indenture (including any amendment or supplement hereto).
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“Excluded Contributions” means the Net Cash Proceeds and Cash Equivalents, or the Fair Market Value of other assets, received by the Company after the Issue Date from:
(i) contributions to its common equity capital, and
(ii) the sale of Capital Stock (other than Excluded Equity) of the Company,
in each case designated as Excluded Contributions pursuant to an Officer’s Certificate executed by an Officer of the Company, the proceeds of which are excluded from the calculation set forth in Section 3.4(a)(C).
“Excluded Equity” means (i) Disqualified Stock, (ii) any Equity Interests issued or sold to a Restricted Subsidiary of the Company or any employee stock ownership plan or trust established by the Company or any of its Subsidiaries (to the extent such employee stock ownership plan or trust has been funded by the Company or any Restricted Subsidiary), (iii) any contributions to the Company contributed in accordance with the proviso in clause (7)(ii) of the definition of “Permitted Investments”; (iv) any Equity Interest that has already been used or designated (x) as (or the proceeds of which have been used or designated as) a Cash Contribution Amount, Designated Preferred Stock, Excluded Contribution or Refunding Capital Stock, or (y) to increase the amount available under Section 3.4(b)(iv)(a) or clause (14) of the definition of “Permitted Investments” or is proceeds of Indebtedness referred to in Section 3.4(b)(xiii)(b) and (v) the contributions of the Company of the proceeds from the Common Equity Offering and the Preferred Equity Offering.
“Fair Market Value” means, with respect to any asset or property, the price which could be negotiated in an arm’s-length, free market transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction (as determined in good faith by the senior management or the Board of Directors of the Company, whose determination will be conclusive for all purposes under this Indenture and the Notes).
“FASB ASC” means the Accounting Standard Codifications as promulgated by the Financial Accounting Standards Board, including any renumbering of such standards or any successor or replacement section or sections promulgated by the Financial Accounting Standards Board.
“Fixed Charges” means, with respect to any Person for any period, the sum of:
(i) Consolidated Interest Expense of such Person for such period, and
(ii) all cash dividend payments (excluding items eliminated in consolidation) on any series of Preferred Stock or Disqualified Stock of such Person and its Restricted Subsidiaries.
“Fixed GAAP Date” means the Original Issue Date; provided that at any time after the Issue Date, the Company may by written notice to the Trustee, elect to change the Fixed GAAP Date to be the date specified in such notice, and upon such notice, the Fixed GAAP Date shall be such date for all periods beginning on and after the date specified in such notice.
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“Fixed GAAP Terms” means (a) the definitions of the terms “Capitalized Lease Obligation,” “Consolidated Interest Expense,” “Consolidated Net Income,” “Consolidated Non-Cash Charges,” “Consolidated First Lien Debt Ratio,” “Consolidated Senior Secured Debt Ratio,” “Consolidated Taxes,” “Consolidated Total Debt Ratio,” “Consolidated Total Indebtedness,” “EBITDA,” “Four Quarter EBITDA,” and “Net Income,” (b) all defined terms in this Indenture to the extent used in or relating to any of the foregoing definitions, and all ratios and computations based on any of the foregoing definitions, and (c) any other term or provision of this Indenture or the Notes that, at the Company’s election, may be specified by the Company by written notice to the Trustee from time to time.
“Foreign Subsidiary” means any Subsidiary of Holdings which is neither (i) organized or existing under the laws of the United States of America or any state or territory or the District of Columbia thereof nor (ii) a Foreign Subsidiary Holdco. Notwithstanding anything to the contrary herein, any Subsidiary of a Person described in the immediately preceding sentence shall be deemed to be a Foreign Subsidiary under this Indenture.
“Foreign Subsidiary Holdco” means any Subsidiary (i) that is organized under the laws of the United States, any state thereof or the District of Columbia and (ii) has no material assets other than Equity Interests of one or more Foreign Subsidiaries, intellectual property relating to such Foreign Subsidiaries (or Subsidiaries thereof) and other assets (including cash and Cash Equivalents) incidental to an ownership interest in any such securities, intellectual property or Subsidiaries.
“Four Quarter EBITDA” means, as of any date of determination (for purposes of this definition, the “Calculation Date”), EBITDA of the Company and its Restricted Subsidiaries for the most recently ended four fiscal quarters for which internal financial statements are available immediately preceding such date.
For purposes of making the computation referred to above, Investments, acquisitions, dispositions, mergers, consolidations and discontinued operations, in each case with respect to a company, a business or an operating unit of a business, and operational changes, that the Company or any of its Restricted Subsidiaries has made after the Issue Date and during the four-quarter reference period or subsequent to such reference period and on or prior to or simultaneously with the Calculation Date (each, for purposes of this definition, a “pro forma event”) shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, consolidations, discontinued operations and operational changes had occurred on the first day of the four-quarter reference period. If since the beginning of such period and on or prior to or simultaneously with the Calculation Date any Person that subsequently became a Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary since the beginning of such period and on or prior to or simultaneously with the Calculation Date shall have made or effected any Investment, acquisition, disposition, merger, consolidation or discontinued operation, in each case with respect to a company, a business or an operating unit of a business, or operational change that would have required adjustment pursuant to this definition, then the Four Quarter EBITDA shall be calculated giving pro forma effect thereto for such period as if such Investment, acquisition, disposition, merger, consolidation, discontinued operation or operational change had occurred at the beginning of the applicable four-quarter period.
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If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness if such Hedging Obligation has a remaining term in excess of 12 months). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Company to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Company may designate.
For purposes of this definition, whenever pro forma effect is to be given to any pro forma event, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Company. Any such pro forma calculation may include, without limitation, (1) adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) adjustments calculated to give effect to any Pro Forma Cost Savings and (3) all adjustments of the type used in connection with the calculation of “Adjusted EBITDA” as set forth in “Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations—Non-GAAP Financial Measures--Reconciliation of Adjusted EBITDA, Adjusted EBITDA Margin, and Adjusted EBITDA less Capex” in the Quarterly Report on Form 10-Q of Getty Images Holdings, Inc. for the quarterly period ended June 30, 2025to the extent such adjustments, without duplication, continue to be applicable to such four-quarter period.
“GAAP” means generally accepted accounting principles in the United States of America as in effect on the Fixed GAAP Date (for purposes of the Fixed GAAP Terms) and as in effect from time to time (for all other purposes of this Indenture), including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession, and subject to the following: If at any time the SEC permits or requires U.S. domiciled companies subject to the reporting requirements of the Exchange Act to use IFRS in lieu of GAAP for financial reporting purposes, the Company may elect by written notice to the Trustee to so use IFRS in lieu of GAAP and, upon any such notice, references herein to GAAP shall thereafter be construed to mean (a) for periods beginning on and after the date specified in such notice, IFRS as in effect on the date specified in such notice (for purposes of the Fixed GAAP Terms) and as in effect from time to time (for all other purposes of this Indenture) and (b) for prior periods, GAAP as defined in the first sentence of this definition. All ratios and computations based on GAAP contained in this Indenture shall be computed in conformity with GAAP.
“Getty Images” means Getty Images, Inc., a Delaware corporation, and any successor in interest thereto.
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“Getty Investors” means Getty Investments, L.L.C., October 1993 Trust, Mark H. Getty and The Options Settlement, or any lineal descendant of J. Paul Getty (including (x) children of any such lineal descendant by adoption and step children, and (y) the spouse of any such lineal descendant), or any Affiliate of the foregoing, or any trusts, partnerships or limited liability companies for the benefit of any of the foregoing, or any of their heirs, executors, successors and legal representatives, who at any date beneficially own or have the right to acquire, directly or indirectly, Equity Interests of the Company or any Permitted Parent.
“Griffey HoldCo” means Griffey Holdings, Inc., a Delaware corporation, and any successor in interest thereto.
“Griffey MidCo” means Griffey Midco (DE), LLC, a Delaware limited liability company, and any successor in interest thereto.
“guarantee” means, as to any Person, a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including, without limitation, letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness or other obligations.
“Guarantee” means any guarantee of the Obligations of the Company under this Indenture and the Notes by any Restricted Subsidiary of the Company in accordance with the provisions of this Indenture.
“Guarantor Supplemental Indenture” means a Supplemental Indenture, to be entered into substantially in the form attached hereto as Exhibit E.
“Guarantors” means each Person that executes this Indenture as a Guarantor on the Issue Date and each other Restricted Subsidiary of the Company or other Person that Incurs a Guarantee of the Notes; provided that upon the release or discharge of such Person from its Guarantee in accordance with this Indenture, such Person automatically ceases to be a Guarantor.
“Hedging Obligations” means, with respect to any Person, the obligations of such Person under:
(i) currency exchange, interest rate or commodity swap agreements, currency swap, interest rate or commodity cap agreements and currency exchange, interest rate or commodity collar agreements; and
(ii) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange, interest rates, commodity prices or equity risks.
“Holder” or “Noteholder” means the Person in whose name a Note is registered on the Note Registrar’s books.
“Holdings” means Abe Investment Holdings, Inc., a Delaware corporation, and any successor in interest thereto.
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“IFRS” means the International Financial Reporting Standards as issued by the International Accounting Standards Board.
“Incur” means, with respect to any Indebtedness, Capital Stock or Lien, to issue, assume, enter into any guarantee of, incur or otherwise become liable, for such Indebtedness, Capital Stock or Lien, as applicable; provided that any Indebtedness, Capital Stock or Lien of a Person existing at the time such Person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Person at the time it becomes a Subsidiary; and provided, further, that any Indebtedness, Capital Stock or Lien of the Company or any of its Subsidiaries existing on the Issue Date and not repaid, redeemed or discharged in connection with the Transactions shall be deemed to be Incurred by such Person on the Issue Date.
“Indebtedness” means, with respect to any Person, without duplication:
(i) the principal and premium (if any) of any Indebtedness of such Person, whether or not contingent, (a) in respect of borrowed money, (b) evidenced by bonds, notes, debentures or similar instruments or letters of credit or bankers’ acceptances (or, without duplication, reimbursement agreements in respect thereof), (c) representing the deferred and unpaid purchase price of any property, except, in the case of the clause (c), (i) any such balance that constitutes a trade payable, accrued expense or similar obligation to a trade creditor, in each case Incurred in the ordinary course of business, (ii) any such obligations incurred under ERISA, (iii) obligations due within six months of the date of incurrence and (iv) any earn-out obligation until and unless the payment of which has been determined by such Person in good faith to be due and payable and is not paid within 60 days after the date of such determination (in the amount to be due and payable and remaining unpaid), or (d) representing any Hedging Obligations, if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability on a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP;
(ii) to the extent not otherwise included, any guarantee by such Person of the Indebtedness of another Person (other than by endorsement of negotiable instruments for collection in the ordinary course of business); and
(iii) to the extent not otherwise included, Indebtedness of another Person secured by a Lien on any asset owned by such Person (whether or not such Indebtedness is assumed by such Person); provided, however, that the amount of such Indebtedness will be the lesser of: (a) the Fair Market Value of such asset at such date of determination, and (b) the amount of such Indebtedness of such other Person;
provided that (i) Contingent Obligations Incurred in the ordinary course of business, (ii) prepaid or deferred revenue arising in the ordinary course of business and (iii) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy warranties or other unperformed obligations of the seller of such asset shall be deemed not to constitute Indebtedness.
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Notwithstanding anything in this Indenture to the contrary, Indebtedness shall not include, and shall be calculated without giving effect to, the effects of Accounting Standards Codification Topic No. 815 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Indenture as a result of accounting for any embedded derivatives created by the terms of such Indebtedness; and any such amounts that would have constituted Indebtedness under this Indenture but for the application of this sentence shall not be deemed an Incurrence of Indebtedness under this Indenture.
“Indemnification Agreements” means (i) that certain Indemnification Agreement between Super Holdco and/or one or more of its subsidiaries, on the one hand, and one or more of the Getty Investors, on the other hand, entered into on the Original Issue Date and (ii) any indemnification agreement between Super Holdco and/or one or more of its subsidiaries, on the one hand, and the Sponsor, on the other hand, entered into on the Original Issue Date (so long as such indemnification agreement is not less advantageous to the Holders in any material respect to the Holders than the Indemnification Agreement with one or more of the Getty Investors entered into on the Original Issue Date), in each case, as may be amended, restated, modified or replaced, from time to time, to the extent such amendment, modification or replacement is not less advantageous to the Holders in any material respect than such Indemnification Agreement entered into on the Original Issue Date.
“Indenture” has the meaning set forth in the preamble hereto.
“Independent Financial Advisor” means an accounting, appraisal or investment banking firm or consultant, in each case of nationally recognized standing that is, in the good faith determination of the Company, qualified to perform the task for which it has been engaged.
“Initial Additional Notes” means Additional Notes issued in an offering not registered under the Securities Act (and any Notes issued in respect of any of the foregoing Notes pursuant to Sections 2.7, 2.8, 2.9, 2.15(d), 2.15(e) or 5.7).
“Initial Notes” means the 14.000% Senior Notes due 2028 of the Company issued on the Issue Date pursuant to the first Notes Supplemental Indenture (and any Notes issued in respect thereof pursuant to Section 2.7, 2.8, 2.9, 2.15(d), 2.15(e) or 5.7).
“Interest Payment Date” means, when used with respect to any Note and any installment of interest thereon, the date specified in such Note as the fixed date on which such installment of interest is due and payable, as set forth in such Note.
“Intermediate Holdco” means Griffey Global Holdings, Inc., a Delaware corporation, and any successor in interest thereto.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency.
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“Investment Grade Securities” means:
(i) securities issued or directly and fully guaranteed or insured by the U.S. government or any agency or instrumentality thereof (other than Cash Equivalents) and in each case with maturities not exceeding two years from the date of acquisition,
(ii) securities that have an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Company and its Subsidiaries,
(iii) investments in any fund that invests at least 95.0% of its assets in investments of the type described in clauses (i) and (ii), which fund may also hold immaterial amounts of cash pending investment and/or distribution, and
(iv) corresponding instruments in countries other than the United States customarily utilized for high quality investments and in each case with maturities not exceeding two years from the date of acquisition.
“Investments” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans, guarantees of Indebtedness, advances or capital contributions (excluding accounts receivable, trade credit and advances to customers, dealers, suppliers and distributors and payroll, commission, travel and similar advances to officers, employees, consultants and independent contractors made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet of the Company in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property. If the Company or any Restricted Subsidiary sells or otherwise disposes of any Equity Interests of any Restricted Subsidiary, or any Restricted Subsidiary issues any Equity Interests, in either case, such that, after giving effect to any such sale or disposition, such Person is no longer a Subsidiary of the Company, the Company shall be deemed to have made an Investment on the date of any such sale or other disposition equal to the Fair Market Value of the Equity Interests of and all other Investments in such Restricted Subsidiary retained. In no event shall a guarantee of an operating lease of the Company or any Restricted Subsidiary be deemed an Investment. For the avoidance of doubt “Investments” shall include the acquisition of another Person as the Division Successor pursuant to the Division of any Person that was not a wholly-owned Subsidiary of the acquiring Person prior to such Division. For purposes of the definition of “Unrestricted Subsidiary” and Section 3.4:
(i) “Investments” shall include the portion (proportionate to the Company’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of a Subsidiary of the Company at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary equal to an amount (if positive) equal to:
(1) the Company’s “Investment” in such Subsidiary at the time of such redesignation less
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(2) the portion (proportionate to the Company’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of such Subsidiary at the time of such redesignation; and
(ii) any property transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of such transfer, in each case as determined in good faith by the Board of Directors of the Company.
The amount of any Investment outstanding at any time (including for purposes of calculating the amount of Restricted Payments outstanding at any time under Section 3.4, and otherwise determining compliance with Section 3.4) shall be the original cost of such Investment (determined, in the case of any Investment made with assets of the Company or any Restricted Subsidiary, based on the Fair Market Value of the assets invested), reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash by the Company or a Restricted Subsidiary in respect of such Investment, and in the case of an Investment in any Person, shall be net of any Investment by such Person in the Company or any Restricted Subsidiary.
“Investors” means the Getty Investors and the Management Group.
“Issue Date” means October 21, 2025.
“Lien” means, with respect to any asset, any mortgage, lien, pledge, hypothecation, charge, security interest, preference, priority or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law (including any conditional sale or other title retention agreement, any lease in the nature thereof, or any option or other agreement to sell); provided that in no event shall an operating lease be deemed to constitute a Lien.
“Limited Condition Transaction” means (1) any Investment or acquisition (whether by merger, amalgamation, consolidation or other business combination or the acquisition of Capital Stock or otherwise) whose consummation is not conditioned on the availability of, or on obtaining, third party financing, or (2) any prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, Disqualified Stock or Preferred Stock requiring irrevocable notice in advance of such prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, Disqualified Stock or Preferred Stock.
“Limited Partnership Agreement” means the Third Amended and Restated Limited Partnership Agreement of Super Holdco dated as of the Original Issue Date, as the same may be amended, restated, modified or replaced, from time to time, to the extent such amendment, modification or replacement is not less advantageous to the Holders in any material respect than the Limited Partnership Agreement entered into on the Issue Date.
“LLC” means any Person that is a limited liability company under the laws of its jurisdiction of formation.
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“Management Agreement” means that (i) certain Consulting Services Agreement between Super Holdco and/or one or more of its subsidiaries, on the one hand, and one or more of the Getty Investors, on the other hand, dated October 18, 2012, as amended by that certain First Amendment to Consulting Services Agreement dated September 13, 2018 and (ii) any management agreement that may be entered into after the Issue Date between Super Holdco and/or one or more of its subsidiaries, on the one hand, and the Sponsor or any of its Affiliates, on the other hand, so long as such management agreement is not less advantageous to the Holders in any material respect to the Holders than the Management Agreement described in clause (i) above, in each case, as may be amended, restated, modified or replaced, from time to time, to the extent such amendment, modification or replacement is not less advantageous to the Holders in any material respect than the Management Agreement entered into with one or more of the Getty Investors on the Original Issue Date.
“Management Group” means the group consisting of the executive officers and other management personnel of the Company and its Subsidiaries on the Issue Date or who became officers or management personnel of the Company or any direct or indirect parent of the Company, as applicable, and its Subsidiaries following the Issue Date (other than in connection with a transaction that would otherwise be a Change of Control if such persons were not included in the definition of “Permitted Holders”) or (in each case) family members or relatives thereof, or trusts, partnerships or limited liability companies for the benefit of any of the foregoing, or any of their heirs, executors, successors and legal representatives, who at any date beneficially own or have the right to acquire, directly or indirectly, Equity Interests of the Company or any Permitted Parent.
“Merger” means the merger-of-equals transaction with Shutterstock that is contemplated by the Merger Agreement.
“Merger Agreement” means that certain Agreement and Plan of Merger, dated as of January 6, 2025, by and among Getty Images Holdings, Inc., Shutterstock and the other parties thereto.
“Merger Closing Date” means the “Closing Date,” as such term is defined and used in the Merger Agreement.
“Merger Expenses” means any fees, costs and expenses (including all legal, accounting and other professional fees, costs and expenses) incurred or paid by the Company or any Restricted Subsidiary associated or in connection with the Merger.
“Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.
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“Net Cash Proceeds” means the aggregate cash proceeds received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received in respect of or upon the sale or other disposition of any Designated Non-cash Consideration received in any Asset Sale and any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise, but only as and when received, and including any proceeds received as a result of unwinding any related Hedging Obligations in connection with such transaction but excluding the assumption by the acquiring Person of Indebtedness relating to the disposed assets or other consideration received in any other non-cash form), net of the cash costs relating to such Asset Sale and the sale or disposition of such Designated Non-cash Consideration (including, without limitation, legal, accounting and investment banking fees, and brokerage and sales commissions), and any relocation expenses incurred as a result thereof, taxes paid or payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements related thereto), amounts required to be applied to the repayment of principal, premium (if any) and interest on Indebtedness required (other than pursuant to Section 3.7(b)) to be paid as a result of such transaction, any costs associated with unwinding any related Hedging Obligations in connection with such transaction and any deduction of appropriate amounts to be provided by the Company or any of its Restricted Subsidiaries as a reserve in accordance with GAAP against any liabilities associated with the asset disposed of in such transaction and retained by the Company or any of its Restricted Subsidiaries after such sale or other disposition thereof, including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction.
“Net Income” means, with respect to any Person, the net income (loss) attributable to such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends.
“Non-Guarantor Subsidiary” means any Restricted Subsidiary that is not a Subsidiary Guarantor.
“Non-U.S. Person” means a Person who is not a U.S. Person (as defined in Regulation S).
“Notes” means the Initial Notes, any Additional Notes, the Exchange Notes and any notes issued in respect thereof pursuant to Section 2.7, 2.8, 2.9, 2.15(d), 2.15(e) or 5.7.
“Notes Custodian” means the custodian with respect to the Global Note (as appointed by the Depositary), or any successor Person thereto and shall initially be the Trustee.
“Notes Supplemental Indenture” means a Supplemental Indenture pursuant to which the Company issues Notes in accordance with Section 2.4, which may be substantially in the form attached hereto as Exhibit G, or in such other form as the Company may determine in accordance with Section 2.4.
“Obligations” means any principal, interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, U.S. federal or foreign law), premium, penalties, fees, indemnifications, reimbursements (including, without limitation, reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other liabilities payable under the documentation governing any Indebtedness; provided that Obligations with respect to the Notes shall not include fees or indemnification in favor of the Trustee and other third parties other than the Holders of the Notes.
“Offering Memorandum” means the Exchange Offer and Consent Solicitation Statement related to the offering of Initial Notes dated September 18, 2025.
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“Officer” means the Chairman of the Board, Chief Executive Officer, Chief Financial Officer, President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary of the Company or of any other Person, as the case may be.
“Officer’s Certificate” means a certificate signed on behalf of the Company or each of the Company by an Officer of the Company or each of the Company that meets the requirements set forth in this Indenture.
“Old Notes” means the Company’s 9.750% Senior Notes due 2027.
“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to the Company.
“Option Agreement” means that certain Restated Option Agreement, dated February 9, 1998, by and between Getty Investments, L.L.C., Getty Images, Inc. and Getty Communications PLC, as amended by Waiver and Amendment to Restated Option Agreement, dated February 24, 2008, Second Amendment to Restated Option Agreement, dated July 2, 2008 and Waiver and Third Amendment to Restated Option Agreement, dated August 14, 2012, as the same may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time; provided that no such amendment, restatement, supplement or other modification following the Issue Date shall expand or provide for additional circumstances pursuant to which Getty Investments, L.L.C. may exercise the option set forth in Section 2 thereof.
“Original Issue Date” means February 19, 2019.
“Outstanding” or “outstanding,” when used with respect to Notes means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent in trust for the Holders of such Notes, provided that, if such Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor reasonably satisfactory to the Trustee has been made; and
(iii) Notes in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture.
A Note does not cease to be Outstanding because the Company or any Affiliate of the Company holds the Note; provided that in determining whether the Holders of the requisite amount of Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder (other than in respect of any such action pursuant to Section 9.2(b), which requires the consent of each Holder of an affected Note), Notes owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver, only Notes which a Trust Officer of the Trustee actually knows are so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the reasonable satisfaction of the Trustee the pledgee’s right to act with respect to such Notes and that the pledgee is not the Company or an Affiliate of the Company.
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“Parent Entity” means any direct or indirect parent of the Company (including Getty Images Holdings, Inc.).
“Pari Passu Indebtedness” means any Indebtedness of the Company or any Restricted Subsidiary other than Subordinated Indebtedness.
“Paying Agent” means any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Notes on behalf of the Company. The Trustee will initially act as Paying Agent for the Notes.
“Permitted Asset Swap” means the substantially concurrent purchase and sale or exchange of Related Business Assets or a combination of Related Business Assets and cash or Cash Equivalents between the Company or any of its Restricted Subsidiaries and another Person; providedthat any cash or Cash Equivalents received must be applied in accordance with Section 3.7.
“Permitted Debt” shall have the meaning assigned thereto in Section 3.3(b).
“Permitted Equity Transactions” means the transactions pursuant to or in connection with that certain Purchase and Subscription Agreement entered into as of the September 4, 2018, by and among Getty Investments, L.L.C., Mark H. Getty, the Eligible-Tag Along Partners (as defined therein) party thereto, Carlyle Partners V, L.P., Carlyle Partners V-A, L.P., CP V Coinvestment A, L.P., CP V Coinvestment B, L.P. and Super Holdco.
“Permitted Holders” means each of (i) the Sponsor and its respective Affiliates, (ii) the Investors, (iii) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which the Persons described in clause (ii) are members; providedthat, without giving effect to the existence of such group or any other group, the Persons described in clause (ii), collectively, beneficially own Voting Stock representing more than 50% of the total voting power of the Voting Stock of the Company or any of its direct or indirect parent companies held by such group and (iv) any Permitted Parent. Any Person or group, together with its Affiliates, whose acquisition of beneficial ownership constitutes a Change of Control in respect of which a Change of Control Offer is made in accordance with the requirements of this Indenture will thereafter constitute an additional Permitted Holder. “Beneficial ownership” has the meaning given to such term under Rule 13d-3 under the Exchange Act, or any successor provision.
“Permitted Investments” means:
(1) any Investment in cash and Cash Equivalents or Investment Grade Securities;
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(2) any Investment in the Company (including the Notes) or any Restricted Subsidiary;
(3) any Investment by the Company or any Restricted Subsidiary of the Company in the Company or any other Restricted Subsidiary of the Company;
(4) any Investment by the Company or any Restricted Subsidiary of the Company in a Person that is primarily engaged in a Similar Business if as a result of such Investment (a) such Person becomes a Restricted Subsidiary of the Company, or (b) such Person, in one transaction or a series of related transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys all or substantially all of its assets to, or is liquidated into, the Company or a Restricted Subsidiary of the Company (and any Investment held by such Person that was not acquired by such Person in contemplation of so becoming a Restricted Subsidiary or in contemplation of such merger, consolidation, amalgamation, transfer, conveyance or liquidation);
(5) any Investment in securities or other assets received in connection with an Asset Sale made pursuant to Section 3.7 or any other disposition of assets not constituting an Asset Sale;
(6) any Investment (x) existing on the Issue Date, (y) made pursuant to binding commitments in effect on the Issue Date and (z) that replaces, refinances, refunds, renews or extends any Investment described under either of the immediately preceding clauses (x) or (y); providedthat any such Investment is in an amount that does not exceed the amount replaced, refinanced, refunded, renewed or extended, except as contemplated pursuant to the terms of such Investment in existence on the Issue Date or as otherwise permitted under this definition or Section 3.4;
(7) loans and advances to employees, directors, officers, consultants or independent contractors (i) in an aggregate amount, taken together with all other Investments made pursuant to this clause that are at the time outstanding, not to exceed the greater of (x) $10.0 million and (y) 2.75% of Four Quarter EBITDA and (ii) in connection with such person’s purchase of Equity Interests of the Company or any direct or indirect parent of the Company; provided that no cash is actually advanced pursuant to this clause (ii) other than to pay taxes due in connection with such purchase, unless such cash is promptly contributed to the Company or any Restricted Subsidiary;
(8) loans and advances to officers, directors, employees, consultants and independent contractors for business related travel and entertainment expenses, moving and relocation expenses and other similar expenses, in each case in the ordinary course of business;
(9) any Investment (x) acquired by the Company or any of its Restricted Subsidiaries (a) in exchange for any other Investment or accounts receivable held by the Company or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or accounts receivable, or (b) as a result of a foreclosure or other remedial action by the Company or any of its Restricted Subsidiaries with respect to any Investment or other transfer of title with respect to any Investment in default and (y) received in compromise or resolution of (a) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Company or any Restricted Subsidiary, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer, or (b) litigation, arbitration or other disputes;
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(10) Hedging Obligations permitted under Section 3.3(b)(x);
(11) any Investment by the Company or any of its Restricted Subsidiaries in a Similar Business (other than an Investment in an Unrestricted Subsidiary) in an aggregate amount, taken together with all other Investments made pursuant to this clause (11) that are at the time outstanding, not to exceed the greater of (x) $90.0 million and (y) 30.0% of Four Quarter EBITDA; provided, however, that if any Investment pursuant to this clause (11) is made in any Person that is not a Restricted Subsidiary of the Company at the date of the making of such Investment and such Person becomes a Restricted Subsidiary of the Company after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (2) above and shall cease to have been made pursuant to this clause (11);
(12) additional Investments by the Company or any of its Restricted Subsidiaries in an aggregate amount, taken together with all other Investments made pursuant to this clause (12) that are at the time outstanding, not to exceed the greater of (x) $100.0 million and (y) 35.0% of Four Quarter EBITDA;
(13) any transaction to the extent it constitutes an Investment that is permitted and made in accordance with the provisions of Section 3.8(b) (except transactions described in clause (ii), (iii), (iv), (viii), (ix), (xiii) or (xiv) of Section 3.8(b));
(14) Investments the payment for which consists of Equity Interests (other than Excluded Equity) of the Company or Equity Interests of any direct or indirect parent of the Company, as applicable; provided, however, that such Equity Interests will not increase the amount available for Restricted Payments under Section 3.4(a)(C);
(15) Investments consisting of the licensing, sublicensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons;
(16) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or purchases, acquisitions, licenses, sublicenses, leases or subleases of intellectual property, other assets or other rights in each case in the ordinary course of business;
(17) any Investment in a Receivables Subsidiary or any Investment by a Receivables Subsidiary in any other Person in connection with a Qualified Receivables Financing, including Investments of funds held in accounts permitted or required by the arrangements governing such Qualified Receivables Financing or any related Indebtedness; provided, however, that any Investment in a Receivables Subsidiary is in the form of a Purchase Money Note, contribution of additional receivables or an equity interest;
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(18) Investments of a Restricted Subsidiary of the Company acquired after the Issue Date or of an entity merged into or consolidated with a Restricted Subsidiary of the Company in a transaction that is not prohibited by Section 4.1 after the Issue Date to the extent that such Investments were not made in contemplation of such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(19) repurchases of the Notes;
(20) guarantees of Indebtedness permitted to be incurred under Section 3.3, and guarantees in the ordinary course of business;
(21) advances, loans or extensions of trade credit in the ordinary course of business by the Company or any of the Restricted Subsidiaries;
(22) Investments consisting of purchases and acquisitions of assets or services in the ordinary course of business;
(23) Investments in the ordinary course of business consisting of Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers;
(24) intercompany current liabilities owed to Unrestricted Subsidiaries or joint ventures incurred in the ordinary course of business in connection with the cash management operations of the Company and its Subsidiaries; and
(25) any Investment so long as, immediately after giving effect to such Investment, on a pro forma basis, the Consolidated Total Debt Ratio of the Company and its Restricted Subsidiaries would be no greater than 6.00 to 1.00.
“Permitted Joint Venture” means, with respect to any specified Person, a joint venture (which for the avoidance of doubt is not itself a Restricted Subsidiary) of such Person, which joint venture is engaged in a Similar Business and in respect of which the Company or a Restricted Subsidiary beneficially owns at least 35.0% of the shares of Equity Interests of such Person.
“Permitted Liens” means, with respect to any Person:
(1) Liens incurred in connection with workers’ compensation laws, unemployment insurance laws or similar legislation, or in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or to secure public or statutory obligations of such Person or to secure surety, stay, customs or appeal bonds to which such Person is a party, or as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
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(2) Liens imposed by law, such as carriers’, warehousemen’s, landlords’, materialmen’s, repairman’s, construction contractors’ and mechanics’ Liens, in each case for sums not yet overdue by more than 30 days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review (or which, if due and payable, are being contested in good faith by appropriate proceedings and for which adequate reserves are being maintained, to the extent required by GAAP (or, for Foreign Subsidiaries, in conformity with generally accepted accounting principles that are applicable in their respective jurisdiction of organization));
(3) Liens for taxes, assessments, fees, withholdings or similar charges imposed by any governmental authority (i) which are not yet due or payable or (ii) which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained to the extent required by GAAP (or, for Foreign Subsidiaries, in conformity with generally accepted accounting principles that are applicable in their respective jurisdiction of organization);
(4) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to regulatory requirements or letters of credit issued pursuant to the request of and for the account of such Person in the ordinary course of its business;
(5) survey exceptions, encumbrances, ground leases, easements or reservations of, or rights of others for, licenses, rights-of-way, servitudes, sewers, electric lines, drains telegraph and telephone and cable television lines, gas and oil pipelines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which do not in the aggregate materially adversely interfere with the ordinary conduct of the business of such Person;
(6) Liens Incurred to secure Obligations in respect of Indebtedness permitted to be Incurred pursuant to clause (i), (iv), or (xx) of the definition of “Permitted Debt”; provided that (x) in the case of clause (iv), such Lien extends only to the assets and/or Capital Stock, the acquisition, lease, construction, repair, replacement or improvement of which is financed thereby and any replacements, additions and accessions thereto and any income or profits thereof; and (y) in the case of clause (xx), such Lien does not extend to the property or assets (or income or profits therefrom) of any Restricted Subsidiary other than a Foreign Subsidiary that is not a Guarantor;
(7) Liens of the Company or any of its Restricted Subsidiaries existing on the Issue Date (other than Liens Incurred to secure Indebtedness under the Senior Credit Agreement);
(8) Liens on assets of, or Equity Interests in, a Person at the time such Person becomes a Subsidiary; provided, however, that such Liens are not created or Incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary; provided, further, that such Liens are limited to all or part of the same property or assets (plus improvements on such property) that secured (or, under the written arrangements under which the Liens arose, could secure) the obligations to which such Liens relate; provided, further, that for purposes of this clause (8), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof shall be deemed to become a Subsidiary of the Company, and any property or assets of such Person or any such Subsidiary shall be deemed acquired by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
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(9) Liens on assets at the time the Company or a Restricted Subsidiary of the Company acquired the assets, including any acquisition by means of a merger or consolidation with or into the Company or any Restricted Subsidiary of the Company; provided, however, that such Liens are not created or Incurred in connection with, or in contemplation of, such acquisition; provided, further, that such Liens are limited to all or part of the same property or assets (plus improvements on such property) that secured (or, under the written arrangements under which the Liens arose, could secure) the obligations to which such Liens relate; provided, further, that for purposes of this clause (9), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof shall be deemed to become a Subsidiary of the Company, and any property or assets of such Person or any such Subsidiary shall be deemed acquired by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(10) Liens securing Indebtedness or other obligations of the Company or a Restricted Subsidiary owing to the Company or another Restricted Subsidiary of the Company permitted to be Incurred in accordance with Section 3.3 and Liens on property of any Restricted Subsidiary that is a Foreign Subsidiary securing Indebtedness in respect of any Foreign Subsidiary that is a Restricted Subsidiary;
(11) Liens securing Hedging Obligations incurred in compliance with Section 3.3;
(12) Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit entered into in the ordinary course of business issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(13) leases, subleases, licenses, sublicenses, occupancy agreements or assignments of or in respect of real or personal property;
(14) Liens arising from, or from Uniform Commercial Code financing statement filings regarding, operating leases entered into by the Company and its Restricted Subsidiaries in the ordinary course of business;
(15) Liens in favor of the Company or any Guarantor, and liens on property or assets of any Non-Subsidiary Guarantor in favor of any Non-Subsidiary Guarantor;
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(16) Liens on accounts receivable and related assets of the type specified in the definition of “Receivables Financing” Incurred in connection with a Qualified Receivables Financing;
(17) deposits made in the ordinary course of business to secure liability to insurance carriers or under self-insurance arrangements in respect of such obligations;
(18) Liens on the Equity Interests of Unrestricted Subsidiaries;
(19) grants of software and other technology licenses;
(20) judgment and attachment Liens not giving rise to an Event of Default and notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings and for which adequate reserves have been made;
(21) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business;
(22) Liens Incurred to secure cash management services and other “bank products” (including those described in Section 3.3(b)(xxiii));
(23) Liens to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancings, refundings, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in clauses (7), (8), (9) and (11) above and clause (24) below; provided, however, that (x) such new Lien shall be limited to all or part of the same property that secured (or, under the written arrangements under which the original Lien arose, could secure) the original Lien (plus improvements on such property), and (y) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (7), (8), (9), (11) and (24) at the time the original Lien became a Permitted Lien under this Indenture, and (B) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement;
(24) Liens securing Indebtedness permitted to be Incurred pursuant to Section 3.3; provided that at the time of any Incurrence of such Indebtedness pursuant to this clause (24) and after giving pro forma effect thereto (or at the time of the initial borrowing of such Indebtedness after giving pro forma effect to the Incurrence of the entire committed amount of such Indebtedness, in which case such committed amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this clause (24)), the Consolidated Senior Secured Debt Ratio shall not be greater than 5.00 to 1.00;
(25) other Liens securing obligations which obligations do not exceed the greater of (x) $60.0 million and (y) 20.0% of Four Quarter EBITDA, at any one time outstanding;
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(26) Liens on the Equity Interests or assets of a joint venture to secure Indebtedness of such joint venture Incurred pursuant to clause (xxi) of the definition of “Permitted Debt”;
(27) Liens on equipment of the Company or any Restricted Subsidiary of the Company granted in the ordinary course of business to the Company’s or such Restricted Subsidiary’s client at which such equipment is located;
(28) Liens created for the benefit of (or to secure) all of the Notes or the Guarantees;
(29) Liens on property or assets used to defease or to satisfy and discharge Indebtedness; provided that such defeasance or satisfaction and discharge is not prohibited by this Indenture;
(30) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation and exportation of goods in the ordinary course of business;
(31) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection; (ii) attaching to pooling, commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business; and (iii) in favor of banking or other financial institutions or entities, or electronic payment service providers, arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking or finance industry;
(32) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks or other Persons not given in connection with the issuance of Indebtedness; (ii) relating to pooled deposit or sweep accounts of the Company or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Company and its Restricted Subsidiaries; or (iii) relating to purchase orders and other agreements entered into with customers of the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(33) any encumbrance or restriction (including put and call arrangements) with respect to capital stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;
(34) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto; and
(35) Liens on vehicles or equipment of the Company or any of the Restricted Subsidiaries granted in the ordinary course of business.
“Permitted Parent” means (a) Super Holdco, (b) Intermediate Holdco, (c) Griffey HoldCo, (d) Griffey MidCo, (e) Holdings, (f) any other Person that is a Subsidiary of Super Holdco and of which the Company is or becomes a Subsidiary and (g) any other Person of which the Company becomes a Subsidiary; provided that immediately after the Company first becomes a Subsidiary of such Person, more than 50% of the Voting Stock of such Person shall be held by one or more Persons that held more than 50% of the Voting Stock of a Permitted Parent of the Company immediately prior to the Company first becoming such a Subsidiary.
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“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“Place of Payment” means a city or any political subdivision thereof in which any Paying Agent appointed pursuant to Article II is located.
“Predecessor Notes” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.9 in lieu of a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note.
“Preferred Equity Interests” means the preferred Equity Interests issued pursuant to the Preferred Equity Offering (including any additional preferred Equity Interests issued to the holders thereof pursuant to the terms of such preferred Equity Interests).
“Preferred Equity Offering” means the issuance of Preferred Stock by Intermediate Holdco and partnership units by Super Holdco to the Sponsor and certain of its Affiliates contemplated by the equity commitment letter, dated as of November 24, 2018, among Super Holdco, Intermediate Holdco and the Sponsor.
“Preferred Stock” means any Equity Interest with preferential right of payment of dividends or upon liquidation, dissolution or winding up.
“Pro Forma Cost Savings” means, without duplication, with respect to any period, the net reduction in costs and other operating improvements or synergies that have been realized or are reasonably anticipated to be realized in good faith with respect to a pro forma event within 12 months of the date of such pro forma event and that are reasonable and factually supportable, as if all such reductions in costs had been effected as of the beginning of such period, decreased by any incremental expenses incurred or to be incurred during such period in order to achieve such reduction in costs.
“Purchase Money Note” means a promissory note of a Receivables Subsidiary evidencing a line of credit, which may be irrevocable, from the Company or any Subsidiary of the Company to a Receivables Subsidiary in connection with a Qualified Receivables Financing, which note is intended to finance that portion of the purchase price that is not paid by cash or a contribution of equity.
“QIB” means any “qualified institutional buyer” (as defined in Rule 144A).
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“Qualified Receivables Financing” means any Receivables Financing of a Receivables Subsidiary that meets the following conditions:
(1) the Board of Directors of the Company shall have determined in good faith that such Qualified Receivables Financing (including financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to the Company and its Restricted Subsidiaries,
(2) all sales of accounts receivable and related assets by the Company or any Restricted Subsidiary to the Receivables Subsidiary are made at Fair Market Value (as determined in good faith by the Company), and
(3) the financing terms, covenants, termination events and other provisions thereof shall be market terms (as determined in good faith by the Company) and may include Standard Securitization Undertakings.
The grant of a security interest in any accounts receivable of the Company or any of its Restricted Subsidiaries (other than a Receivables Subsidiary) to secure any Credit Agreement shall not be deemed a Qualified Receivables Financing.
“Rating Agency” means (1) each of Moody’s and S&P and (2) if Moody’s or S&P ceases to rate the Notes for reasons outside of the Company’s control, a “nationally recognized statistical rating organization” within the meaning of Section 3 under the Exchange Act selected by the Company or any parent of the Company as a replacement agency for Moody’s or S&P, as the case may be.
“Receivables Fees” means distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Receivables Financing.
“Receivables Financing” means any transaction or series of transactions that may be entered into by the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries may sell, convey or otherwise transfer to (a) a Receivables Subsidiary (in the case of a transfer by the Company or any of its Subsidiaries) and (b) any other Person (in the case of a transfer by a Receivables Subsidiary), or may grant a security interest or lien in, or otherwise assign any rights with respect to, any accounts receivable (whether now existing or arising in the future) of the Company or any of its Subsidiaries, and any assets related thereto including, without limitation, all collateral securing such accounts receivable, all contracts and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable and any Hedging Obligations entered into by the Company or any such Subsidiary in connection with such accounts receivable.
“Receivables Repurchase Obligation” means any obligation of a seller of receivables in a Qualified Receivables Financing to repurchase receivables arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, off-set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
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“Receivables Subsidiary” means a Wholly Owned Restricted Subsidiary of the Company (or another Person formed for the purposes of engaging in a Qualified Receivables Financing with the Company in which the Company or any Subsidiary of the Company makes an Investment and to which the Company or any Subsidiary of the Company transfers accounts receivable and related assets) which engages in no activities other than in connection with the financing of accounts receivable of the Company and its Subsidiaries, all proceeds thereof and all rights (contractual or other), collateral and other assets relating thereto, and any business or activities incidental or related to such business, and which is designated by the Board of Directors of the Company (as provided below) as a Receivables Subsidiary and:
(1) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is guaranteed by the Company or any other Subsidiary of the Company (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings), (ii) is recourse to or obligates the Company or any other Subsidiary of the Company in any way other than pursuant to Standard Securitization Undertakings, or (iii) subjects any property or asset of the Company or any other Subsidiary of the Company, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings,
(2) with which neither the Company nor any other Subsidiary of the Company has any material contract, agreement, arrangement or understanding other than on terms which the Company reasonably believes to be no less favorable to the Company or such Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Company, and
(3) to which neither the Company nor any other Subsidiary of the Company has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results.
Any such designation by the Board of Directors of the Company shall be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution of the Board of Directors of the Company giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the foregoing conditions.
“Redemption Price” means, with respect to any series of Notes, “Redemption Price” as such term is defined in the Notes Supplemental Indenture establishing such series of Notes.
“Regular Record Date” means, with respect to any series of Notes, “Regular Record Date” as such term is defined in the Notes Supplemental Indenture establishing such series of Notes.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Certificate” means a certificate substantially in the form attached hereto as Exhibit D.
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“Related Business Assets” means assets (other than cash or Cash Equivalents) used or useful in a Similar Business; provided that any assets received by the Company or a Restricted Subsidiary in exchange for assets transferred by the Company or a Restricted Subsidiary will not be deemed to be Related Business Assets if they consist of securities of a Person, unless such Person is, or upon receipt of the securities of such Person, such Person would become, a Restricted Subsidiary.
“Replacement Assets” means (1) substantially all the assets of a Person primarily engaged in a Similar Business or (2) a majority of the Voting Stock of any Person primarily engaged in a Similar Business that will become, on the date of acquisition thereof, a Restricted Subsidiary.
“Restricted Investment” means an Investment other than a Permitted Investment.
“Restricted Period” means, in relation to the Initial Notes, the 40 consecutive days beginning on and including the later of (A) the day on which the Initial Notes are offered to persons other than distributors (as defined in Regulation S under the Securities Act) and (B) the Issue Date; and, in relation to any Additional Notes that bear the Private Placement Legend, it means the comparable period of 40 consecutive days.
“Restricted Subsidiary” means any Subsidiary of a Person other than an Unrestricted Subsidiary of such Person. Unless otherwise indicated in this Indenture, all references to Restricted Subsidiaries shall mean Restricted Subsidiaries of the Company.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“Sale/Leaseback Transaction” means an arrangement relating to property now owned or hereafter acquired by the Company or a Restricted Subsidiary whereby the Company or a Restricted Subsidiary transfers such property to a Person and the Company or such Restricted Subsidiary leases it from such Person, other than leases between the Company and a Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company.
“S&P” means S&P Global Ratings, a business unit of Standard & Poor’s Financial Services LLC, or any successor to the rating agency business thereof.
“SEC” means the Securities and Exchange Commission.
“Secured Indebtedness” means any Indebtedness secured by a Lien.
“Secured Junior Debt” means any Secured Indebtedness that is not pari passu in all respects (including, but not limited to, lien priority, payment priority and obligors) with the Senior Credit Agreement or the Secured Notes.
“Secured Notes” means the 11.250% Senior Secured Notes due 2030 issued by the Company.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
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“Senior Credit Agreement” means that certain Credit Agreement dated as of February 19, 2019, by and among Abe Investment Holdings, Inc., a Delaware corporation, and the Company, as the borrowers, Griffey Midco (DE), LLC, a Delaware limited liability company, as holdings, JPMorgan Chase Bank, N.A. as administrative agent, collateral agent, swing line lender and L/C issuer, and the other parties thereto, as amended by that certain First Amendment to Credit Agreement, dated as of February 3, 2023, as further amended by that certain Incremental Commitment Amendment and Second Amendment to Credit Agreement, dated as of May 4, 2023 and as further amended by that certain Second Incremental Commitment Amendment and Third Amendment to Credit Agreement, dated as of February 21, 2025, together with the related documents thereto (including the revolving loans thereunder, any letters of credit and reimbursement obligations related thereto, any Guarantees and security documents), as further amended, restated, supplemented, waived, or otherwise modified from time to time, and (if designated by the Company) as replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including (if designated by the Company) any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or indenture or indentures or any successor or replacement agreement or agreements or indenture or indentures or increasing the amount loaned or issued thereunder or altering the maturity thereof (provided that such increase in borrowings is permitted under Section 3.3).
“Shutterstock” means Shutterstock, Inc., a Delaware corporation.
“Significant Subsidiary” means any Restricted Subsidiary that would be a “significant subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC.
“Similar Business” means any business engaged in by the Company or any of its Restricted Subsidiaries on the Issue Date and any business or other activities that are similar, ancillary, complementary or related to, or an extension, development or expansion of, the businesses in which the Company and its Restricted Subsidiaries are engaged on the Issue Date.
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 2.10.
“Sponsor” means Koch Icon Investments, LLC; provided, however, that this definition shall not include any portfolio company of Koch Icon Investments, LLC.
“Standard Securitization Undertakings” means representations, warranties, covenants, indemnities and guarantees of performance entered into by the Company or any Subsidiary of the Company which the Company has determined in good faith to be customary in a Receivables Financing including, without limitation, those relating to the servicing of the assets of a Receivables Subsidiary, it being understood that any Receivables Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking.
“Stated Maturity” means, with respect to any security, the date specified in such security as the fixed date on which the final payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof upon the happening of any contingency beyond the control of the issuer unless such contingency has occurred).
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“Subordinated Indebtedness” means (a) with respect to the Company, any Indebtedness of the Company which is by its terms expressly subordinated in right of payment to the Notes, and (b) with respect to any Guarantor, any Indebtedness of such Guarantor which is by its terms expressly subordinated in right of payment to its Guarantee.
“Subsidiary” means, with respect to any Person, (1) any corporation, association or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total voting power of the Voting Stock is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof and (2) any partnership, joint venture, limited liability company or similar entity of which (x) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general and limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof, whether in the form of membership, general, special or limited partnership interests or otherwise, and (y) such Person or any Restricted Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
“Subsidiary Guarantor” means each Restricted Subsidiary of the Company that executes this Indenture as a Guarantor on the Issue Date and each other Restricted Subsidiary of the Company or other Person that Incurs a Guarantee of the Notes; provided that upon the release or discharge of such Person from its Guarantee in accordance with this Indenture, such Person automatically ceases to be a Guarantor.
“Super Holdco” means Griffey Investors, L.P., a Delaware limited partnership, and any successor in interest thereto.
“TIA” means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the Issue Date.
“Transactions” means (i) the Preferred Equity Offering and the entry into the definitive documentation with respect thereto, (ii) the Common Equity Offering and the entry into the definitive documentation with respect thereto, (iii) the entry into this Indenture and the offer and issuance of the Notes, (iv) the entry into the Senior Credit Agreement and Incurrence of Indebtedness thereunder by one or more of Holdings, the Company and its Subsidiaries, (v) the purchase, repurchase, repayment, redemption, defeasance, discharge or other acquisition or retirement for value of Indebtedness of the Company and its Subsidiaries or any direct or indirect parent of the Company in existence on the Issue Date (including any collateralization of letters of credit, surety bonds or other similar instruments), (vi) the Permitted Equity Transactions, (vii) the Merger and (viii) all other transactions relating to any of the foregoing (including payment of fees and expenses related to any of the foregoing).
“Trust Officer” means any officer within the corporate trust administration department of the Trustee, with direct responsibility for performing the Trustee’s duties under this Indenture and also means, with respect to a particular corporate trust matter, any other officer of the Trustee to whom such matter is referred because of such person’s knowledge of and familiarity with the particular subject, and who, in any case, has direct responsibility for the administration of this Indenture.
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“Trustee” means the respective party named as such in this Indenture until a successor replaces it and, thereafter, means the successor.
“Unrestricted Subsidiary” means:
(1) any Subsidiary of the Company that at the time of determination shall be designated an Unrestricted Subsidiary by the Board of Directors of such Person pursuant to Section 3.14; and
(2) any Subsidiary of an Unrestricted Subsidiary.
“U.S. Government Obligations” means securities that are:
(1) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged, or
(2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in each case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any such U.S. Government Obligations or a specific payment of principal of or interest on any such U.S. Government Obligations held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligations or the specific payment of principal of or interest on the U.S. Government Obligations evidenced by such depository receipt.
“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote (without regard to the occurrence of any contingency) in the election of the Board of Directors of such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness or Disqualified Stock, as the case may be, at any date, the quotient obtained by dividing (1) the sum of the products of the number of years from the date of determination to the date of each successive scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Disqualified Stock multiplied by the amount of such payment, by (2) the sum of all such payments.
“Wholly Owned Restricted Subsidiary” is any Wholly Owned Subsidiary that is a Restricted Subsidiary.
“Wholly Owned Subsidiary” of any Person means a direct or indirect Subsidiary of such Person 100% of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares or shares or interests required to be held by foreign nationals or other third parties to the extent required by applicable law) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of such Person and one or more Wholly Owned Subsidiaries of such Person.
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SECTION 1.2 Other Definitions.
| Term | Defined in<br><br> Section |
|---|---|
| “actual knowledge” | 7.2(g) |
| “Affiliate Transaction” | 3.8(a) |
| “Agent Member” | 2.15(b) |
| “Asset Sale Offer” | 3.7(c) |
| “Authentication Order” | 2.6 |
| “Certificate of Beneficial Ownership” | 2.16(3) |
| “Change of Control Offer” | 3.9(b) |
| “Change of Control Payment” | 3.9(a) |
| “Change of Control Payment Date” | 3.9(b)(iii) |
| “Covenant Suspension Event” | 3.15(a) |
| “Deemed Date” | 3.3(c) |
| “Defaulted Interest” | 2.10 |
| “Distribution Compliance Date” | 2.1 |
| “Event of Default” | 6.1 |
| “Excess Proceeds” | 3.7(c) |
| “Global Notes” | 2.1 |
| “Guarantor Obligations” | 10.1(a) |
| “Holdings Merger” | 3.8(b)(i) |
| “Increased Amount” | 3.5(e) |
| “Incurrence Clause” | 3.4 |
| “IPO” | 3.4(b)(iv) |
| “LCT Test Date” | 1.5 |
| “Minimum Denomination” | 2.5 |
| “Note Register” and “Note Registrar” | 2.8 |
| “Offer Amount” | 5.8(a) |
| “Offer Period” | 5.8(a) |
| “Offer to Repurchase” | 5.8 |
| “Permanent Regulation S Global Notes” | 2.1 |
| “Permitted Debt” | 3.3(b) |
| “Physical Notes” | 2.1 |
| “Private Placement Legend” | 2.3 |
| “Purchase Date” | 5.8(a) |
| “Redemption Date” | 5.4 |
| “Refinancing Indebtedness” | 3.3(b)(xiv) |
| “Refunding Capital Stock” | 3.4(b)(ii)(a) |
| “Regulation S Global Notes” | 2.1 |
| “Regulation S Note Exchange Date” | 2.16 |
| “Regulation S Physical Notes” | 2.1 |
| “Restricted Payments” | 3.4(a) |
| “Retired Capital Stock” | 3.4(b)(ii)(a) |
| “Reversion Date” | 3.15(b) |
| “Rule 144A Global Note” | 2.1 |
| “Rule 144A Physical Note” | 2.1 |
| “Subsequent Transaction” | 1.5 |
| “Successor Company” | 4.1(a)(i) |
| “Successor Guarantor” | 4.1(b)(A) |
| “Suspended Covenants” | 3.15(a) |
| “Suspension Period” | 3.15(b) |
| “Temporary Regulation S Global Note” | 2.1 |
| “Unpaid Amount” | 3.4(b)(ii)(c) |
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SECTION 1.3 Rules of Construction. Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or” is not exclusive;
(d) “including” means including without limitation;
(e) words in the singular include the plural and words in the plural include the singular;
(f) (i) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness and (ii) secured Indebtedness shall not be deemed to be subordinated or junior to other secured Indebtedness merely because it has a junior priority with respect to the same collateral;
(g) references to sections of, or rules under, the Securities Act or Exchange Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time;
(h) unless the context otherwise requires, any reference to an “Article,” “Section” or “clause” refers to an Article, Section or clause, as the case may be, of this Indenture;
(i) the words “herein,” “hereof” and “hereunder” and any other words of similar import refer to this Indenture as a whole and not any particular Article, Section, clause or other subdivision; and
(j) notwithstanding any provision of this Indenture, prior to the qualification of this Indenture under TIA, no provision of the TIA shall apply or be incorporated by reference into this Indenture or the Notes, except as specifically set forth in this Indenture.
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SECTION 1.4 Incorporation by Reference of TIA. Following qualification of this Indenture under the TIA, (i) whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture and (ii) this Indenture shall be subject to the mandatory provisions of the TIA, which shall be incorporated by reference in and made a part of this Indenture. Any terms incorporated by reference in this Indenture pursuant to the preceding sentence that are defined by the TIA, defined by any TIA reference to another statute or defined by SEC rule under the TIA, have the meanings so assigned to them therein. The following TIA terms have the following meanings:
“indenture securities” means the Notes.
“indenture security holder” means a Holder.
“indenture to be qualified” means this Indenture.
“indenture trustee” or “institutional trustee” means the Trustee.
“obligor” on this indenture securities means the Company, any Guarantor, and any successor or other obligor on the indenture securities.
SECTION 1.5 Limited Condition Transaction. When calculating the availability under any basket or ratio under this Indenture or compliance with any provision of this Indenture in connection with any Limited Condition Transaction and any actions or transactions related thereto (including acquisitions, Investments, the incurrence or issuance of Indebtedness, Disqualified Stock or Preferred Stock and the use of proceeds thereof, the incurrence of Liens, repayments of certain Indebtedness and Restricted Payments), in each case, at the option of the Company (the Company’s election to exercise such option, an “LCT Election”), the date of determination for availability under any such basket or ratio and whether any such action or transaction is permitted (or any requirement or condition therefor is complied with or satisfied (including as to the absence of any continuing Default or Event of Default)) under this Indenture shall be made (1) in the case of any acquisition (including by way of merger) or Investment (and any Indebtedness, Disqualified Stock or Preferred Stock incurred or assumed or Asset Sales consummated in connection therewith), at the time of either (x) the execution of the definitive agreements with respect to such acquisition or Investment or (y) the consummation of such acquisition or Investment and (2) in the case of any voluntary or optional prepayment, redemption, purchase, defeasance or other satisfaction of any Indebtedness, Disqualified Stock or Preferred Stock, at the time of (x) delivery of irrevocable notice with respect to such prepayment, redemption, purchase, defeasance or other satisfaction of such Indebtedness, Disqualified Stock or Preferred Stock or (y) the making of such voluntary or optional prepayment, redemption, purchase, defeasance or other satisfaction of such Indebtedness, Disqualified Stock or Preferred Stock (the “LCT Test Date”), and if, for the Limited Condition Transaction, the Company or any of its Restricted Subsidiaries would have been permitted to take such actions or consummate such transactions on the relevant LCT Test Date in compliance with such ratio, test (including, for the avoidance of doubt, any requirement that no Default or Event of Default exists) or basket, such ratio, test or basket shall be deemed to have been complied with.
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For the avoidance of doubt, if the Company has made an LCT Election for any Limited Condition Transaction, then in connection with any calculation of any ratio, test or basket availability with respect to the incurrence of Indebtedness, Disqualified Stock or Preferred Stock, the making of Permitted Investments or the making of any prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary (each, a “Subsequent Transaction”), following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement, public announcement or irrevocable notice (or other applicable commitments or definitive documentation) for such Limited Condition Transaction is terminated, revoked or expires without consummation of such Limited Condition Transaction, for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such ratio, test or basket shall be required to be satisfied on a pro forma basis assuming such Limited Condition Transaction and other transactions to be consummated in connection therewith have been consummated.
SECTION 1.6 Certain Compliance Calculations. Notwithstanding anything to the contrary herein, in the event an item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) is incurred or issued, any Lien is incurred or other transaction is undertaken in reliance on a ratio basket based on the Consolidated Total Debt Ratio, Consolidated Senior Secured Debt Ratio or Consolidated First Lien Debt Ratio, such ratio(s) shall be calculated with respect to such incurrence, issuance or other transaction without giving effect to amounts being utilized under any other basket or portion of a basket (other than a ratio basket based on the Consolidated Total Debt Ratio, Consolidated Senior Secured Debt Ratio or Consolidated First Lien Debt Ratio) on the same date. Each item of Indebtedness, Disqualified Stock or Preferred Stock that is incurred or issued, each Lien incurred and each other transaction undertaken will be deemed to have been incurred, issued or taken first, to the extent available, pursuant to the relevant Consolidated Total Debt Ratio, Consolidated Senior Secured Debt Ratio or Consolidated First Lien Debt Ratio test.
Notwithstanding anything to the contrary herein, in the event an item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) is incurred or issued, any Lien is incurred or other transaction is undertaken in reliance on a ratio basket based on the Consolidated Total Debt Ratio, Consolidated Senior Secured Debt Ratio or Consolidated First Lien Debt Ratio, such ratio(s) shall be calculated without regard to the incurrence of any Indebtedness under any revolving facility immediately prior to or in connection therewith.
ARTICLE II
The Notes
SECTION 2.1 Forms Generally. The Initial Notes and Initial Additional Notes that are not Exchange Notes and the Trustee’s certificate of authentication relating thereto shall be in substantially the forms set forth, or referenced, in this Article II and Exhibit A annexed hereto (as such forms may be modified in accordance with Section 2.4). The Exchange Notes and any Additional Notes that are not Initial Additional Notes, or that are issued in a registered offering pursuant to the Securities Act, and the Trustee’s certificate of authentication relating thereto shall be in substantially the forms set forth, or referenced, in this Article II and Exhibit B annexed hereto (as such forms may be modified in accordance with Section 2.4). Each of Exhibit A and B, is hereby incorporated in and expressly made a part of this Indenture. The Notes may have such appropriate insertions, omissions, substitutions, notations, legends, endorsements, identifications and other variations as are required or permitted by law, stock exchange rule or depositary rule or usage, agreements to which the Company is subject, if any, or other customary usage, or as may consistently herewith be determined by the Officers of the Company executing such Notes, as evidenced by such execution (provided always that any such notation, legend, endorsement, identification or variation is in a form acceptable to the Company). Each Note shall be dated the date of its authentication. The terms of the Notes set forth in Exhibits A and B are part of the terms of this Indenture. Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note.
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Initial Notes and any Initial Additional Notes offered and sold in reliance on Rule 144A shall, unless the Company otherwise notifies the Trustee in writing, be issued in the form of one or more permanent global Notes in substantially the form set forth in Exhibit A hereto (as such form may be modified in accordance with Section 2.4), except as otherwise permitted herein. Such Global Notes shall be referred to collectively herein as the “Rule 144A Global Note,” and shall be deposited with the Notes Custodian for credit to an account of an Agent Member, and shall be duly executed by the Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of any Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Notes Custodian as hereinafter provided.
Initial Notes and any Initial Additional Notes offered and sold in offshore transactions in reliance on Regulation S under the Securities Act shall, unless the Company otherwise notifies the Trustee in writing, be issued in the form of one or more temporary global Notes in substantially the form set forth in Exhibit A hereto (as such form may be modified in accordance with Section 2.4), except as otherwise permitted herein. Such Global Notes shall be referred to herein as the “Temporary Regulation S Global Notes,” and shall be deposited with the Notes Custodian for the accounts of designated Agent Members holding on behalf of Euroclear or Clearstream and shall be duly executed by the Company and authenticated by the Trustee as hereinafter provided.
Following the expiration of the distribution compliance period set forth in Regulation S (the “Distribution Compliance Date”) with respect to any Temporary Regulation S Global Note, beneficial interests in such Temporary Regulation S Global Note shall be exchanged as provided in Sections 2.15 and 2.16 for beneficial interests in one or more permanent global Notes in substantially the form set forth in Exhibit A hereto (as such form may be modified in accordance with Section 2.4), except as otherwise permitted herein. Such Global Notes shall be referred to herein as the “Permanent Regulation S Global Notes” and, together with the Temporary Regulation S Global Notes, as the “Regulation S Global Notes.” The Permanent Regulation S Global Notes shall be deposited with the Notes Custodian for credit to the account of an Agent Member and shall be duly executed by the Company and authenticated by the Trustee as hereinafter provided. Simultaneously with the authentication of a Permanent Regulation S Global Note, the Trustee shall cancel the related Temporary Regulation S Global Note. The aggregate principal amount of a Regulation S Global Note may from time to time be increased or decreased by adjustments made in the records of the Notes Custodian as hereinafter provided.
Subject to the limitations on the issuance of certificated Notes set forth in Sections 2.15 and 2.16, Initial Notes and any Initial Additional Notes issued pursuant to Section 2.8 in exchange for or upon transfer of beneficial interests (x) in a Rule 144A Global Note shall be in the form of permanent certificated Notes substantially in the form set forth in Exhibit A hereto (as such form may be modified in accordance with Section 2.4) (the “Rule 144A Physical Notes”) or (y) in a Regulation S Global Note (if any), on or after the Regulation S Note Exchange Date with respect to such Regulation S Global Note, shall be in the form of permanent certificated Notes substantially in the form set forth in Exhibit A hereto (as such form may be modified in accordance with Section 2.4) (the “Regulation S Physical Notes”), respectively, as hereinafter provided.
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The Rule 144A Physical Notes and Regulation S Physical Notes shall be construed to include any certificated Notes issued in respect thereof pursuant to Section 2.7, 2.8, 2.9 or 5.7, and the Rule 144A Global Notes and Regulation S Global Notes shall be construed to include any global Notes issued in respect thereof pursuant to Section 2.7, 2.8, 2.9 or 5.7. The Rule 144A Physical Notes and the Regulation S Physical Notes, together with any other certificated Notes issued and authenticated pursuant to this Indenture, are sometimes collectively herein referred to as the “Physical Notes.” The Rule 144A Global Notes and the Regulation S Global Notes, together with any other global Notes that are issued and authenticated pursuant to this Indenture, are sometimes collectively referred to as the “Global Notes.”
Exchange Notes shall be issued substantially in the form set forth in Exhibit B hereto (as such form may be modified in accordance with Section 2.4) and, subject to Section 2.15(c), shall be in the form of one or more Global Notes.
SECTION 2.2 Form of Trustee’s Certificate of Authentication. The Notes will have endorsed thereon a Trustee’s certificate of authentication in substantially the following form:
This is one of the Notes referred to in the within-mentioned Indenture.
| as Trustee | |
|---|---|
| By: | |
| Authorized Signatory |
Dated:
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SECTION 2.3 Restrictive and Global Note Legends. Each Global Note and Physical Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the following legend set forth below (the “Private Placement Legend”) on the face thereof until the Private Placement Legend is removed or not required in accordance with Section 2.16(4):
THIS SECURITY HAS NOT BEEN 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 REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY),] [IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE DATE ON WHICH THIS 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 OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“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 TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
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Each Global Note, whether or not an Initial Note, shall also bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 2.15 AND 2.16 OF THE INDENTURE (AS DEFINED HEREIN).
Each Temporary Regulation S Global Note shall also bear the following legend on the face thereof:
BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON, NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.
EXCEPT AS SPECIFIED IN THE INDENTURE, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL NOTE WILL NOT BE EXCHANGEABLE FOR INTERESTS IN THE PERMANENT REGULATION S GLOBAL NOTE OR ANY OTHER NOTE REPRESENTING AN INTEREST IN THE NOTES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE “40 DAY DISTRIBUTION COMPLIANCE PERIOD” (WITHIN THE MEANING OF RULE 903(b)(2) OF REGULATION S UNDER THE SECURITIES ACT). DURING SUCH 40 DAY DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL NOTE MAY NOT BE SOLD, PLEDGED OR TRANSFERRED TO A U.S. PERSON OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON.
SECTION 2.4 Amount Unlimited; Issuable in Series. The aggregate principal amount of Notes that may be authenticated and delivered and Outstanding under this Indenture is not limited. The Notes may be issued from time to time in one or more series. Except as provided in Section 9.2, all Notes (including any Exchange Notes issued in exchange therefor) will vote (or consent) as a class with the other Notes and otherwise be treated as Notes for all purposes of this Indenture.
The following matters shall be established with respect to each series of Notes issued hereunder in a Notes Supplemental Indenture:
(1) the title of the Notes of the series (which title shall distinguish the Notes of the series from all other series of Notes);
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(2) any limit (if any) upon the aggregate principal amount of the Notes of the series that may be authenticated and delivered under this Indenture (which limit shall not pertain to Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes of the series pursuant to Section 2.7, 2.8, 2.9, 2.15(d), 2.15(e), or 5.7);
(3) the date or dates on which the principal of and premium, if any, on the Notes of the series is payable or the method of determination and/or extension of such date or dates, and the amount or amounts of such principal and premium, if any, payments and methods of determination thereof;
(4) the rate or rates at which the Notes of the series shall bear interest, if any, or the method of calculating and/or resetting such rate or rates of interest, the date or dates from which such interest shall accrue or the method by which such date or dates shall be determined, and the Interest Payment Dates on which any such interest shall be payable;
(5) the period or periods within which, the price or prices at which, and other terms and conditions upon which Notes of the series may be redeemed, in whole or in part, at the option of the Company, if the Company is to have the option;
(6) if other than the principal amount thereof, the portion of the principal amount of Notes of the series that shall be payable upon declaration of acceleration of maturity thereof pursuant to Section 6.2 or the method by which such portion shall be determined;
(7) in the case of any Notes, other than Initial Notes and any Exchange Notes issued in exchange for Initial Notes, any addition to or change in the Events of Default which apply to any Notes of the series and any change in the right of the Trustee or the requisite Holders of such Notes to declare the principal amount thereof due and payable pursuant to Section 6.2; and
(8) in the case of any Notes, other than Initial Notes and any Exchange Notes issued in exchange for Initial Notes, any addition to or change in the covenants set forth in Article III.
The form of the Notes of such series, as set forth in Exhibit A or B as the case may be, may be modified to reflect such matters as so established in such Notes Supplemental Indenture.
Such matters may also be established in a Notes Supplemental Indenture for any Additional Notes issued hereunder that are to be of the same series as any Notes previously issued hereunder. Notes that have the same terms described in the foregoing clauses (1) though (8) will be treated as the same series, unless otherwise designated by the Company.
SECTION 2.5 Denominations. The Notes shall be issuable only in fully registered form, without coupons, and only in minimum denominations of $2,000 (the “Minimum Denomination”), and integral multiples of $1,000 in excess thereof.
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SECTION 2.6 Execution, Authentication and Delivery and Dating. The Notes shall be executed on behalf of the Company by one Officer thereof. The signature of any such Officer on the Notes may be manual, pdf or electronic signature.
Notes bearing the manual or facsimile signature of an individual who was at any time an Officer of the Company shall bind the Company, notwithstanding that such individual has ceased to hold such office prior to the authentication and delivery of such Notes or did not hold such office at the date of such Notes.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication; and the Trustee shall authenticate and deliver (i) Initial Notes for original issue in the aggregate principal amount not to exceed $300.0 million, (ii) Additional Notes in one or more series (which may be of the same series as any Notes previously issued hereunder, or of a different series) from time to time for original issue in aggregate principal amounts specified by the Company and (iii) Exchange Notes from time to time for issue in exchange for a like principal amount of Initial Notes or Initial Additional Notes, in each case specified in clauses (i) through (iii) above, upon a written order of the Company in the form of an Officer’s Certificate of the Company (an “Authentication Order”). Such Officer’s Certificate shall specify the amount of Notes to be authenticated and the date on which the Notes are to be authenticated, the “CUSIP”, “ISIN”, “Common Code” or other similar identification numbers of such Notes, if any, whether the Notes are to be Initial Notes, Additional Notes or Exchange Notes and whether the Notes are to be issued as one or more Global Notes or Physical Notes and such other information as the Company may include or the Trustee may reasonably request.
In authenticating Additional or Exchange Notes, the Trustee shall receive and shall be entitled to rely on an Opinion of Counsel stating that such Notes, when authenticated and delivered by the Trustee and issued by the Company will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles.
All Notes shall be dated the date of their authentication.
No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Note a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.
SECTION 2.7 Temporary Notes. Until definitive Notes are ready for delivery, the Company may prepare and upon receipt of an Authentication Order the Trustee shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of definitive Notes but may have variations that the Company considers appropriate for temporary Notes. If temporary Notes are issued, the Company will cause definitive Notes to be prepared without unreasonable delay. After the preparation of definitive Notes, the temporary Notes shall be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency of the Company in a Place of Payment, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes the Company shall execute and upon receipt of an Authentication Order the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Notes of authorized denominations. Until so exchanged the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as definitive Notes of the same series and tenor.
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SECTION 2.8 Registrar and Paying Agent. The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Note Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and of transfers of Notes. The Company may have one or more co registrars. The term “Note Registrar” includes any co registrars.
The Company may have one or more additional paying agents, and the term “Paying Agent” shall include any additional Paying Agent.
The Company initially appoints the Trustee as “Note Registrar” and “Paying Agent” in connection with the Notes, until such time as it has resigned or a successor has been appointed. The Company may change the Paying Agent or Note Registrar for any series of Notes without prior notice to the Holders of Notes. The Company may enter into an appropriate agency agreement with any Note Registrar or Paying Agent not a party to this Indenture. Any such agency agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee in writing of the name and address of any such agent. If the Company fails to appoint or maintain a Note Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.6. The Company or any wholly-owned Domestic Subsidiary of the Company may act as Paying Agent, Note Registrar or transfer agent.
Upon surrender for transfer of any Note at the office or agency of the Company in a Place of Payment, in compliance with all applicable requirements of this Indenture and applicable law, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of the same series, of any authorized denominations and of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes of the same series, of any authorized denominations and of a like tenor and aggregate principal amount, upon surrender of the Notes to be exchanged at such office or agency. Whenever any Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes that the Holder making the exchange is entitled to receive.
All Notes issued upon any transfer or exchange of Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Notes surrendered upon such transfer or exchange.
Every Note presented or surrendered for transfer or exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Note Registrar duly executed, by the Holder thereof or such Holder’s attorney duly authorized in writing.
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No service charge shall be made for any registration, transfer or exchange of Notes, but the Company may require payment of a sum sufficient to cover any transfer tax or other governmental charge that may be imposed in connection therewith.
Neither the Company nor the Note Registrar shall be required (i) to issue, transfer or exchange any Note during a period beginning at the opening of business 15 Business Days before the day of the mailing of a notice of redemption (or purchase) of Notes selected for redemption (or purchase) under Section 5.3(b) and ending at the close of business on the day of such mailing, or (ii) to transfer or exchange any Note so selected for redemption (or purchase) in whole or in part.
SECTION 2.9 Mutilated, Destroyed, Lost and Stolen Notes. If a mutilated Note is surrendered to the Note Registrar or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Note if the requirements of Section 8-405 of the Uniform Commercial Code are met, such that the Holder (a) satisfies the Company or the Trustee within a reasonable time after such Holder has notice of such loss, destruction or wrongful taking and the Note Registrar does not register a transfer prior to receiving such notification, (b) makes such request to the Company or the Trustee prior to the Note being acquired by a protected purchaser as defined in Section 8-303 of the Uniform Commercial Code (a “protected purchaser”) and (c) satisfies any other reasonable requirements of the Trustee. Such Holder shall furnish an indemnity bond sufficient in the judgment of (i) the Trustee to protect the Trustee and (ii) the Company to protect the Company, the Trustee, a Paying Agent and the Note Registrar from any loss that any of them may suffer if a Note is replaced.
In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section 2.9, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section 2.9 in lieu of any destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and ratably with any and all other Notes duly issued hereunder.
The provisions of this Section 2.9 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.10 Payment of Interest Rights Preserved. Interest on any Note that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest specified in Section 4 of the applicable Notes Supplemental Indenture.
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Unless otherwise specified for Notes of any series in the applicable Notes Supplemental Indenture, as contemplated by Section 2.4, any interest on any Note that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (“Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Company, at its election, as provided in clause (1) or clause (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee and Paying Agent in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee or Paying Agent an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements reasonably satisfactory to the Trustee or Paying Agent for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as provided in this clause (1). Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee and the Paying Agent of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first class postage prepaid, to each Holder at such Holder’s address as it appears in the Note Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered on such Special Record Date and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee and the Paying Agent of the proposed payment pursuant to this clause (2), such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.10, each Note delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Note of the same series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Note of such series.
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SECTION 2.11 Persons Deemed Owners. The Company, any Guarantor, the Trustee, the Paying Agent and any agent of any of them may treat the Person in whose name any Note is registered as the owner of such Note for the purpose of receiving payment of principal of (and premium, if any), and (subject to Section 2.10) interest on, such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Company, any Guarantor, the Trustee, the Paying Agent nor any agent of any of them shall be affected by notice to the contrary.
SECTION 2.12 Cancellation. All Notes surrendered for payment, redemption, transfer, exchange or conversion shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and, if not already cancelled, shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder that the Company may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly cancelled by the Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section 2.12, except as expressly permitted by this Indenture. All cancelled Notes held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures (subject to the record retention requirements of the Exchange Act).
SECTION 2.13 Computation of Interest. Unless otherwise specified for Notes of any series in the applicable Notes Supplemental Indenture, as contemplated by Section 2.4, interest on the Notes shall be computed on the basis of a 360-day year consisting of twelve 30-day months.
SECTION 2.14 CUSIP Numbers, ISINs, etc. The Company in issuing the Notes may use “CUSIP” numbers, ISINs and “Common Code” numbers (if then generally in use), and if so, the Trustee may use the CUSIP numbers, ISINs and “Common Code” numbers in notices of redemption or exchange as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness or accuracy of such numbers printed in the notice or on the Notes; that reliance may be placed only on the other identification numbers printed on the Notes; and that any redemption shall not be affected by any defect in or omission of such numbers.
SECTION 2.15 Book-Entry Provisions for Global Notes.
(a) Each Global Note initially shall (i) be registered in the name of the Depositary for such Global Note or the nominee of such Depositary, in each case for credit to the account of an Agent Member, and (ii) be delivered to the Notes Custodian. Neither the Company, the Trustee nor any of their agents shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Note, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
(b) Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary, or the Notes Custodian, or under such Global Notes. The Depositary may be treated by the Company, any other obligor upon the Notes, the Trustee and any agent of any of them as the absolute owner of the Global Notes for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, any other obligor upon the Notes, the Trustee or any agent of any of them from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a beneficial owner of any Note. The registered Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action that a Holder is entitled to take under this Indenture or the Notes.
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The Holder of any Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.
(c) Transfers of a Global Note shall be limited to transfers of such Global Note in whole, but, subject to the immediately succeeding sentence, not in part, to the Depositary, its successors or their respective nominees. Interests of beneficial owners in a Global Note may not be transferred or exchanged for Physical Notes unless (i) the Company has consented thereto in writing, or such transfer or exchange is made pursuant to the next sentence, and (ii) such transfer or exchange is in accordance with the applicable rules and procedures of the Depositary and the provisions of Sections 2.8 and 2.16. Subject to the limitation on issuance of Physical Notes set forth in Section 2.16(3), Physical Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in the relevant Global Note, if (i) the Depositary notifies the Company at any time that it is unwilling or unable to continue as Depositary for the Global Notes and a successor depositary is not appointed within 120 days; (ii) the Depositary ceases to be registered as a “Clearing Agency” under the Securities Exchange Act of 1934 and a successor depositary is not appointed within 120 days; (iii) the Company, at its option, notifies the Trustee that it elects to cause the issuance of Physical Notes; or (iv) an Event of Default shall have occurred and be continuing with respect to the Notes and the Trustee has received a written request from the Depositary to issue Physical Notes.
(d) In connection with any transfer or exchange of a portion of the beneficial interest in any Global Note to beneficial owners for Physical Notes pursuant to Section 2.15(c), the Note Registrar shall record on its books and records the date and a decrease in the principal amount of such Global Note in an amount equal to the beneficial interest in the Global Note being transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more Physical Notes of like tenor and principal amount of authorized denominations.
(e) In connection with a transfer of an entire Global Note to beneficial owners pursuant to Section 2.15(c), the applicable Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary, in exchange for its beneficial interest in the applicable Global Note, an equal aggregate principal amount of Rule 144A Physical Notes (in the case of any Rule 144A Global Note) or Regulation S Physical Notes (in the case of any Regulation S Global Note), as the case may be, of authorized denominations.
(f) The transfer and exchange of a Global Note or beneficial interests therein shall be effected through the Depositary, in accordance with this Indenture (including applicable restrictions on transfer set forth in Section 2.16) and the applicable rules and procedures therefor of the Depositary. Any beneficial interest in one of the Global Notes that is transferred to a Person who takes delivery in the form of an interest in a different Global Note will, upon transfer, cease to be an interest in such Global Note and become an interest in the other Global Note and, accordingly, will thereafter be subject to all transfer restrictions, if any, and other procedures applicable to beneficial interests in such other Global Note for as long as it remains such an interest. A transferor of a beneficial interest in a Global Note shall deliver to the Note Registrar a written order given in accordance with the Depositary’s applicable rules and procedures containing information regarding the participant account of the Depositary to be credited with a beneficial interest in the relevant Global Note (or shall otherwise comply with the then applicable rules and procedures of the Depositary). Subject to Section 2.16, the Note Registrar shall, in accordance with such instructions, instruct the Depositary to credit to the account of the Person specified in such instructions a beneficial interest in such Global Note and to debit the account of the Person making the transfer the beneficial interest in the Global Note being transferred.
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(g) Any Physical Note delivered in exchange for an interest in a Global Note pursuant to Section 2.15(c) shall, unless such exchange is made on or after the Resale Restriction Termination Date applicable to such Note and except as otherwise provided in Section 2.3 and Section 2.16, bear the Private Placement Legend.
(h) Notwithstanding the foregoing, through the Restricted Period, a beneficial interest in a Regulation S Global Note may be held only through designated Agent Members holding on behalf of Euroclear or Clearstream unless delivery is made in accordance with the applicable provisions of Section 2.16.
SECTION 2.16 Special Transfer Provisions.
(1) Transfers to Non U.S. Persons. The following provisions shall apply with respect to the registration of any proposed transfer of a Note that is a Restricted Security to any Non U.S. Person: The Note Registrar shall register such transfer if it complies with all other applicable requirements of this Indenture (including Section 2.8) and,
(a) if (x) such transfer is after the relevant Resale Restriction Termination Date with respect to such Note or (y) the proposed transferor has delivered to the Note Registrar and the Company and the Trustee a Regulation S Certificate and, unless otherwise agreed by the Company and the Trustee, an Opinion of Counsel, certifications and other information satisfactory to the Company and the Trustee, and
(b) if the proposed transferor is or is acting through an Agent Member holding a beneficial interest in a Global Note, upon receipt by the Note Registrar and the Company and the Trustee of (x) the certificate, opinion, certifications and other information, if any, required by clause (a) above and (y) written instructions given in accordance with the procedures of the Note Registrar and of the Depositary;
whereupon (i) the Note Registrar shall reflect on its books and records the date and (if the transfer does not involve a transfer of any Outstanding Physical Note) a decrease in the principal amount of the relevant Global Note in an amount equal to the principal amount of the beneficial interest in the relevant Global Note to be transferred, and (ii) either (A) if the proposed transferee is or is acting through an Agent Member holding a beneficial interest in a relevant Regulation S Global Note, the Note Registrar shall reflect on its books and records the date and an increase in the principal amount of such Regulation S Global Note in an amount equal to the principal amount of the beneficial interest being so transferred or (B) otherwise the Company shall execute and the Trustee shall authenticate and deliver one or more Physical Notes of like tenor and amount.
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(2) Transfers to QIBs. The following provisions shall apply with respect to the registration of any proposed transfer of a Note that is a Restricted Security to a QIB (excluding transfers to Non U.S. Persons): The Note Registrar shall register such transfer if it complies with all other applicable requirements of this Indenture (including Section 2.8) and,
(a) if such transfer is being made by a proposed transferor who has checked the box provided for on the form of such Note stating, or has otherwise certified to the Note Registrar and the Company and the Trustee in writing, that the sale has been made in compliance with the provisions of Rule 144A to a transferee who has signed the certification provided for on the form of such Note stating, or has otherwise certified to Note Registrar and the Company and the Trustee in writing, that it is purchasing such Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a QIB within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as it has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A; and
(b) if the proposed transferee is an Agent Member, and the Note to be transferred consists of a Physical Note that after transfer is to be evidenced by an interest in a Global Note or consists of a beneficial interest in a Global Note that after the transfer is to be evidenced by an interest in a different Global Note, upon receipt by the Note Registrar of written instructions given in accordance with the Depositary’s and the Note Registrar’s procedures, whereupon the Note Registrar shall reflect on its books and records the date and an increase in the principal amount of the transferee Global Note in an amount equal to the principal amount of the Physical Note or such beneficial interest in such transferor Global Note to be transferred, and the Trustee shall cancel the Physical Note so transferred or reflect on its books and records the date and a decrease in the principal amount of such transferor Global Note, as the case may be.
(3) Limitation on Issuance of Physical Notes. No Physical Note shall be exchanged for a beneficial interest in any Global Note, except in accordance with Section 2.15 and this Section 2.16.
A beneficial owner of an interest in a Temporary Regulation S Global Note (and, in the case of any Additional Notes for which no Temporary Regulation S Global Note is issued, any Regulation S Global Note) shall not be permitted to exchange such interest for a Physical Note (any such exchange being limited, in any case, to the circumstances set forth in Section 2.15(c)) or (in the case of such interest in a Temporary Regulation S Global Note) an interest in a Permanent Regulation S Global Note until a date, which must be after the Distribution Compliance Date, on which the Company receives a certificate of beneficial ownership substantially in the form of Exhibit C from such beneficial owner (a “Certificate of Beneficial Ownership”). Such date, as it relates to a Regulation S Global Note, is herein referred to as the “Regulation S Note Exchange Date.”
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(4) Private Placement Legend. Upon the transfer, exchange or replacement of Notes not bearing the Private Placement Legend, the Note Registrar shall deliver Notes that do not bear the Private Placement Legend. Upon the transfer, exchange or replacement of Notes bearing the Private Placement Legend, the Note Registrar shall deliver only Notes that bear the Private Placement Legend unless (i) the requested transfer is after the relevant Resale Restriction Termination Date with respect to such Notes, (ii) upon written request of the Company after there is delivered to the Note Registrar an Opinion of Counsel (which opinion and counsel are satisfactory to the Company) to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act, (iii) with respect to a Regulation S Global Note (on or after the Regulation S Note Exchange Date with respect to such Regulation S Global Note) or Regulation S Physical Note, in each case with the agreement of the Company, or (iv) such Notes are sold or exchanged pursuant to an effective registration statement under the Securities Act.
(5) Other Transfers. The Note Registrar shall effect and register, upon receipt of a written request from the Company to do so, a transfer not otherwise permitted by this Section 2.16, such registration to be done in accordance with the otherwise applicable provisions of this Section 2.16, upon the furnishing by the proposed transferor or transferee of a written Opinion of Counsel (which opinion and counsel are satisfactory to the Company) to the effect that, and such other certifications or information as the Company or the Trustee may require (including, in the case of a transfer to an Accredited Investor (as defined in Rule 501(a)(1), (2), (3) or (7) under Regulation D promulgated under the Securities Act), a certificate substantially in the form of Exhibit F) to confirm that, the proposed transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.
A Note that is a Restricted Security may not be transferred other than as provided in this Section 2.16. A beneficial interest in a Global Note that is a Restricted Security may not be exchanged for a beneficial interest in another Global Note other than through a transfer in compliance with this Section 2.16.
(6) General. By its acceptance of any Note bearing the Private Placement Legend, each Holder of such a Note acknowledges the restrictions on transfer of such Note set forth in this Indenture and in the Private Placement Legend and agrees that it will transfer such Note only as provided in this Indenture.
The Note Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 2.15 or this Section 2.16 (including all Notes received for transfer pursuant to this Section 2.16). The Company shall have the right to require the Note Registrar to deliver to the Company, at the Company’s expense, copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Note Registrar.
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In connection with any transfer of any Note, the Trustee, the Note Registrar and the Company shall be entitled to receive, shall be under no duty to inquire into, may conclusively presume the correctness of, and shall be fully protected in relying upon the certificates, opinions and other information referred to herein (or in the forms provided herein, attached hereto or to the Notes, or otherwise) received from any Holder and any transferee of any Note regarding the validity, legality and due authorization of any such transfer, the eligibility of the transferee to receive such Note and any other facts and circumstances related to such transfer.
SECTION 2.17 Payment of Additional Interest.
(a) Under certain circumstances the Company will be obligated to pay certain additional amounts of interest to the Holders of certain Initial Notes, as more particularly set forth in such Initial Notes.
(b) Under certain circumstances the Company may be obligated to pay certain additional amounts of interest to the Holders of certain Initial Additional Notes, as may be more particularly set forth in such Initial Additional Notes.
(c) Prior to any Interest Payment Date on which any such additional interest is payable, the Company shall give notice to the Trustee of the amount of any additional interest due on such Interest Payment Date. The Trustee shall have no duty to calculate or verify the calculation of any additional interest that is payable as determined by the Company.
SECTION 2.18 Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all money held by the Paying Agent for the payment of principal of, premium, if any, and interest on the Notes. The Company at any time may require a Paying Agent to pay all money held by such Paying Agent to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company) shall have no further liability for the money delivered to the Trustee. If the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent.
SECTION 2.19 Lists of Holders of the Notes. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Note Registrar, the Company shall furnish to the Trustee at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders, including the aggregate principal amount of the Notes held by each thereof.
ARTICLE III
Covenants
SECTION 3.1 Payment of Notes. The Company shall promptly pay the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes and in this Indenture. Principal, premium, if any, and interest shall be considered paid on the date due if by 10:00 a.m. (New York City time) on such date the Trustee or the Paying Agent holds in accordance with this Indenture money sufficient to pay all principal, premium, if any, and interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture.
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The Company shall pay interest on overdue principal at the rate specified therefor in the Notes.
Notwithstanding anything to the contrary contained in this Indenture, the Company may, to the extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America from principal or interest payments hereunder.
SECTION 3.2 Reports and Other Information.
(a) So long as any Notes are outstanding, the Company shall provide the Trustee and, upon request, beneficial owners of the Notes a copy of all of the information and reports referred to below:
(i) within 90 days after the end of each fiscal year beginning with the first such fiscal year ending after the Issue Date, annual audited financial statements for such fiscal year including a “Management’s discussion and analysis of financial condition and results of operations” with respect to the periods presented and a report on the annual financial statements by the Company’s independent registered public accounting firm (all of the foregoing financial information to be prepared on a basis substantially consistent with the corresponding financial information included in the Offering Memorandum),
(ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year beginning with the first such fiscal quarter ending after the Issue Date, unaudited financial statements for the interim period as of, and for the period ending on, the end of such fiscal quarter including a “Management’s discussion and analysis of financial condition and results of operations” (all of the foregoing financial information to be prepared on a basis substantially consistent with the corresponding financial information included in the Offering Memorandum), and
(iii) within 4 Business Days after the occurrence of any of the following events, all current reports that would be required to be filed with the SEC on Form 8-K or any successor or comparable form (if the Company had been a reporting company under Section 15(d) of the Exchange Act) as a result of the occurrence of such events; provided that the foregoing shall not obligate the Company to make available (i) any information otherwise required to be included on a Form 8-K regarding the occurrence of any such events if the Company determines in its good faith judgment that such event that would otherwise be required to be disclosed is not material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries, taken as a whole, (ii) any terms of such event if the Company determines in its good faith judgment that disclosure of such terms would otherwise cause material competitive harm to the business, assets, operations, financial position or prospects of the Company and its Restricted Subsidiaries, taken as a whole; provided, further, that such non-disclosure shall be limited only to those specific provisions that would cause material competitive harm and not the occurrence of the event itself, (iii) a summary of the terms of, any employment or compensatory arrangement, agreement, plan or understanding between the Company (or any of its Subsidiaries) and any director, manager or executive officer of the Company (or any of its Subsidiaries) or (iv) copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a Current Report on Form 8-K;
(1) the entry into or termination of material agreements;
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(2) significant acquisitions or dispositions;
(3) bankruptcy;
(4) cross-default under direct material financial obligations;
(5) a change in the Company’s certifying independent auditor;
(6) the appointment or departure of executive officers;
(7) non-reliance on previously issued financial statements;
(8) change of control transactions;
(9) the creation of a direct financial obligation or an obligation under an off-balance sheet arrangement; and
(10) change in fiscal year;
provided, however, that in addition to providing such information to the Trustee, the Company will (1) make available to the Holders, prospective investors in the Notes and securities analysts (to the extent providing analysis of investment in the Notes) such information by (i) posting to the website of either the Company or on IntraLinks or any comparable password-protected online data system, in each case, within 15 days after the time the Company would be required to file such information with the SEC if it were subject to Section 13 or 15(d) of the Exchange Act, or (ii) otherwise providing substantially comparable availability of such reports (as determined by the Company in good faith) (it being understood that, without limitation, making such reports available on Bloomberg or another private electronic information service shall constitute substantially comparable availability), or (2) to the extent the Company determines in good faith that it cannot make such reports available in the manner described in the preceding clause (1) after the use of its commercially reasonable efforts, furnish such reports to the Holders of the Notes, upon their request.
(b) Notwithstanding the foregoing, (a) the Company will not be required to furnish any information, certificates or reports required by (i) Section 302, Section 404 or Section 906 of the Sarbanes-Oxley Act of 2002, or related Items 307 or 308 of Regulation S-K, (ii) Regulation G or Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-generally accepted accounting principles financial measures contained therein, (iii) Rule 3-09 of Regulation S-X or (iv) Rule 3-05 of Regulation S-X, (b) such reports will not be required to contain the separate financial information for Guarantors or Subsidiaries whose securities are pledged to secure the Notes contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X, and (c) such reports shall not be required to present compensation or beneficial ownership information.
(c) The Company will be deemed to have satisfied the reporting requirements referred to above if the Company or any direct or indirect parent of the Company has filed reports containing such information with the SEC.
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(d) In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to prospective investors in the Notes, upon their request, the information required to be delivered thereto pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision).
(e) Notwithstanding the foregoing, the financial statements, information and other reports required to be provided pursuant to Section 3.2(a) may be those of any direct or indirect parent of the Company, so long as such direct or indirect parent of the Company becomes a Guarantor; providedthat if the financial information so furnished relates to such direct or indirect parent of the Company, the same is accompanied by consolidating information that explains in reasonable detail (in the good faith judgment of the Company) the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand. The Company will be deemed to have satisfied the requirements of Section 3.2(c) if any direct or indirect parent of the Company files and provides reports, documents and information of the types otherwise so required within the applicable time periods, and the Company is not required to file or make available, as the case may be, such reports, documents and information separately under the applicable rules and regulations of the SEC (after giving effect to any exemptive relief) because of the filings by such direct or indirect parent.
(f) The Company shall hold quarterly conference calls for the Holders of the Notes to discuss financial information for the first three fiscal quarters of each fiscal year and for each fiscal year, and prior to each conference call, to issue a press release announcing the time and date of such conference call and providing instructions for holders of Notes, securities analysts (to the extent providing analysis of investment in the Notes) and prospective investors in the Notes to obtain access to such call. The Company may deny access to any competitively-sensitive information otherwise to be provided pursuant to this Section 3.2 to any Holder, prospective investor, securities analyst or market maker that is a competitor of the Company and its Subsidiaries or an affiliate of such a competitor to the extent that the Company determines in good faith that the provision of such information to such Person would be competitively harmful to the Company and its Subsidiaries; and provided that such Holders, prospective investors or security analysts will agree to (1) treat all such reports (and the information contained therein) and information as confidential, (2) not use such reports and the information contained therein for any purpose other than their investment or potential investment in the Notes and (3) not publicly disclose or distribute to any competitor any such reports (and the information contained therein). The Company shall be deemed to have satisfied the requirement set forth in this clause (f) if such requirement is satisfied by the Company or any direct or indirect parent of the Company.
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(g) Delivery of reports, information and documents (including without limitation reports contemplated under this Section 3.2) to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). Trustee shall have no duty to determine whether or not such reports, information or documents have been filed with the SEC.
(h) Any Default or Event of Default for the failure to comply with the time periods prescribed in this Section 3.2 shall be deemed to be cured upon the delivery of any such report required by such covenant or such notice or certificate, as applicable, even though such delivery is not within the prescribed period specified in this Indenture.
SECTION 3.3 Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any Indebtedness (including Acquired Indebtedness) or issue any shares of Disqualified Stock and the Company will not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stock; provided, however, that the Company and any Restricted Subsidiary may Incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and any Restricted Subsidiary may issue shares of Preferred Stock, in each case if the Consolidated Total Debt Ratio as of the last day of the Company’s and its Restricted Subsidiaries’ most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is Incurred or such Disqualified Stock or Preferred Stock is issued would have been no greater than 6.00 to 1.00 determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been Incurred, or the Disqualified Stock or Preferred Stock had been issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of such four-quarter period; provided, further, that the aggregate amount of Indebtedness (including Acquired Indebtedness) that may be Incurred and Disqualified Stock or Preferred Stock that may be issued pursuant to the foregoing by Non-Guarantor Subsidiaries, together with any principal amounts incurred or issued by Non-Guarantor Subsidiaries pursuant to clause (b)(xv)(X) below and any Refinancing Indebtedness in respect of Indebtedness incurred in reliance on this proviso or clause (b)(xv)(X) below, shall not exceed $5.0 million, at any one time outstanding, after giving pro forma effect to such incurrence or issuance (including a pro forma application of the net proceeds therefrom).
(b) The foregoing limitations will not apply to (collectively, “Permitted Debt”):
(i) the Incurrence by the Company or its Restricted Subsidiaries of Indebtedness under any Credit Agreement, the guarantees thereof and the issuance and creation of letters of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the face amount thereof) up to an aggregate principal amount not to exceed (x) $1,780.0 million at any time outstanding plus (y) an additional aggregate principal amount of Indebtedness that at the time of Incurrence does not cause the Consolidated First Lien Debt Ratio for the most recently ended four fiscal quarters for which internal financial statements are available immediately preceding such date, determined on a pro forma basis to exceed 4.50 to 1.00; provided, that for purposes of determining the amount that may be Incurred under clause (y), all Indebtedness incurred under clause (y) shall be deemed to be secured by liens having first lien priority;
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(ii) the Incurrence by the Company and the Guarantors of Indebtedness represented by the Notes (not including any Additional Notes) and the Guarantees thereof, as applicable (and any Exchange Notes and Guarantees thereof);
(iii) Indebtedness of the Company and its Restricted Subsidiaries existing on the Issue Date (other than Indebtedness described in clause (i) or (ii) above);
(iv) Indebtedness (including, without limitation, Capitalized Lease Obligations and mortgage financings as purchase money obligations) Incurred by the Company or any of its Restricted Subsidiaries, Disqualified Stock issued by the Company or any of its Restricted Subsidiaries and Preferred Stock issued by any Restricted Subsidiaries of the Company to finance all or any part of the purchase, lease, construction, installation, repair, replacement, design or improvement of property (real or personal), plant or equipment or other fixed or capital assets (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets) in an aggregate principal amount or liquidation preference, including all Indebtedness Incurred and Disqualified Stock or Preferred Stock issued to renew, refund, refinance, replace, defease or discharge any Indebtedness Incurred and Disqualified Stock or Preferred Stock issued pursuant to this clause (iv), not to exceed the greater of (x) $60.0 million and (y) 20.0% of Four Quarter EBITDA at the time of Incurrence, at any one time outstanding;
(v) Indebtedness Incurred by the Company or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit and bank guarantees issued in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims;
(vi) to the extent constituting Indebtedness, obligations arising from agreements of the Company or its Restricted Subsidiaries providing for indemnification, earn-outs, adjustment of purchase price or similar obligations, in each case, Incurred in connection with the acquisition or disposition of any business, assets or a Subsidiary of the Company in accordance with the terms of this Indenture, other than guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition;
(vii) Indebtedness of the Company to a Restricted Subsidiary; provided that (x) such Indebtedness owing to a Non-Guarantor Subsidiary shall be subordinated in right of payment to the Company’s Obligations with respect to the Notes, (y) any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary and (z) any other subsequent transfer of any such Indebtedness (except to the Company or another Restricted Subsidiary), in each case, shall be deemed to be an Incurrence of such Indebtedness not permitted by this clause (vii);
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(viii) shares of Preferred Stock of a Restricted Subsidiary issued to the Company or another Restricted Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock or any other event that results in any Restricted Subsidiary that holds such shares of Preferred Stock of another Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred Stock (except to the Company or another Restricted Subsidiary), in each case, shall be deemed to be an issuance of shares of Preferred Stock not permitted by this clause (viii);
(ix) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that (x) if a Guarantor Incurs such Indebtedness owing to a Non-Guarantor Subsidiary, such Indebtedness is subordinated in right of payment to the Guarantee of such Guarantor, (y) any subsequent issuance or transfer of any Capital Stock or any other event which results in any Restricted Subsidiary lending such Indebtedness ceasing to be a Restricted Subsidiary and (z) any other subsequent transfer of any such Indebtedness (except to the Company or another Restricted Subsidiary), in each case, shall be deemed to be an Incurrence of such Indebtedness not permitted by this clause (ix);
(x) Hedging Obligations that are Incurred in the ordinary course of business (and not for speculative purposes);
(xi) obligations (including reimbursement obligations with respect to letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and completion guarantees provided by the Company or any Restricted Subsidiary;
(xii) Indebtedness or Disqualified Stock of the Company or any Restricted Subsidiary of the Company and Preferred Stock of any Restricted Subsidiary of the Company in an aggregate principal amount or liquidation preference that, when aggregated with the principal amount or liquidation preference of all other Indebtedness, Disqualified Stock and Preferred Stock then outstanding and Incurred pursuant to this clause (xii), does not exceed the greater of (x) $100.0 million and (y) 35.0% of Four Quarter EBITDA, at any one time outstanding;
(xiii) any guarantee by the Company or a Restricted Subsidiary of Indebtedness or other obligations of the Company or any of its Restricted Subsidiaries so long as the Incurrence of such Indebtedness or other obligations is permitted under the terms of this Indenture;
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(xiv) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness or Disqualified Stock or Preferred Stock of a Restricted Subsidiary of the Company that serves to refund, refinance, replace, redeem, repurchase, retire or defease any Indebtedness Incurred or Disqualified Stock or Preferred Stock issued as permitted under Section 3.3(a) or Sections 3.3(b)(ii), (iii), (xiv), (xv), (xviii) or (xxx) or any Indebtedness Incurred or Disqualified Stock or Preferred Stock issued to so refund or refinance such Indebtedness, Disqualified Stock or Preferred Stock, including any additional Indebtedness Incurred or Disqualified Stock or Preferred Stock issued to pay premiums (including, without limitation, tender premiums), defeasance costs, accrued and unpaid interest and fees and expenses in connection therewith (subject to the following proviso, “Refinancing Indebtedness”) prior to its respective maturity; provided, however, that such Refinancing Indebtedness:
(1) has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is Incurred that is not less than the remaining Weighted Average Life to Maturity of the Indebtedness, Disqualified Stock or Preferred Stock being refunded, refinanced, replaced, redeemed, repurchased or retired;
(2) has a Stated Maturity which is no earlier than the Stated Maturity of the Indebtedness being refunded, refinanced, replaced, redeemed, repurchased or retired;
(3) to the extent that such Refinancing Indebtedness refinances (i) Subordinated Indebtedness, such Refinancing Indebtedness is Subordinated Indebtedness or (ii) Disqualified Stock or Preferred Stock, such Refinancing Indebtedness must be Disqualified Stock or Preferred Stock, respectively;
(4) is Incurred in an aggregate principal amount (or if issued with original issue discount an aggregate issue price) that is equal to or less than the sum of (x) the aggregate principal amount (or if issued with original issue discount, the aggregate accreted value) then outstanding of the Indebtedness being refinanced plus (y) the amount of premium (including, without limitation, tender premium), defeasance costs, accrued and unpaid interest and fees and expenses Incurred in connection with such refinancing; and
(5) shall not include (x) Indebtedness, Disqualified Stock or Preferred Stock of a Non-Guarantor Subsidiary that refinances Indebtedness, Disqualified Stock or Preferred Stock of the Company or a Guarantor, or (y) Indebtedness or Disqualified Stock of the Company or Indebtedness, Disqualified Stock or Preferred Stock of a Restricted Subsidiary that refinances Indebtedness, Disqualified Stock or Preferred Stock of an Unrestricted Subsidiary;
and provided, further, that subclauses (1) and (2) will not apply to any refunding or refinancing of any Indebtedness outstanding under the Senior Credit Agreement;
(xv) Indebtedness, Disqualified Stock or Preferred Stock (X) of the Company or any of its Restricted Subsidiaries Incurred to finance an acquisition of any assets (including Capital Stock), business or Person and (Y) of any Person that is acquired by the Company or any of its Restricted Subsidiaries or merged into or consolidated with the Company or a Restricted Subsidiary in accordance with the terms of this Indenture (other than any Person that becomes a Restricted Subsidiary of the Company after the Issue Date solely as a result of a Division);
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provided, however, that after giving effect to such acquisition, merger or consolidation and the Incurrence of such Indebtedness, Disqualified Stock or Preferred Stock, either:
(1) the Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Total Debt Ratio test set forth in Section 3.3(a); or
(2) the Consolidated Total Debt Ratio would be equal to or less than immediately prior to such acquisition, merger or consolidation;
provided, further, that the aggregate amount of Indebtedness (including Acquired Indebtedness) that may be Incurred and Disqualified Stock or Preferred Stock that may be issued pursuant to this clause (xv) by Non-Guarantor Subsidiaries, together with any principal amounts incurred or issued by Non-Guarantor Subsidiaries under Section 3.3(a) and any Refinancing Indebtedness in respect of any of the Indebtedness referred to in this proviso, shall not exceed $5.0 million, at any one time outstanding, after giving pro forma effect to such incurrence or issuance (including a pro forma application of the net proceeds therefrom);
(xvi) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business;
(xvii) Indebtedness of the Company or any Restricted Subsidiary supported by a letter of credit or bank guarantee issued pursuant to any Credit Agreement, so long as such letter of credit has not been terminated, in a principal amount not in excess of the stated amount of such letter of credit or bank guarantee;
(xviii) Contribution Indebtedness;
(xix) Indebtedness of the Company or any Restricted Subsidiary consisting of (x) the financing of insurance premiums or (y) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(xx) Indebtedness of Foreign Subsidiaries of the Company in an amount not to exceed the greater of (x) $60.0 million and (y) 20.0% of Four Quarter EBITDA at the time of such Incurrence, at any one time outstanding;
(xxi) Indebtedness of a joint venture to the Company or a Restricted Subsidiary and to the other holders of Equity Interests of such joint venture, so long as the percentage of the aggregate amount of such Indebtedness of such joint venture owed to such holders of its Equity Interests does not exceed the percentage of the aggregate outstanding amount of the Equity Interests of such joint venture held by such holders;
(xxii) Indebtedness Incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse to the Company or any Restricted Subsidiary other than a Receivables Subsidiary (except for Standard Securitization Undertakings);
(xxiii) Indebtedness arising under any agreement to provide cash management services, including treasury, depository, overdraft, credit, purchasing or debit card, electronic funds transfer and other cash management arrangements to the Company or any Restricted Subsidiary of the Company, and Indebtedness in respect of netting services, overdraft protections, credit card programs, automatic clearinghouse arrangements and similar arrangements in each case in connection with deposit accounts;
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(xxiv) Indebtedness consisting of Indebtedness issued by the Company or any Restricted Subsidiary to future, current or former officers, directors, employees, consultants and independent contractors thereof or any direct or indirect parent thereof, their respective estates, heirs, family members, spouses or former spouses, in each case to finance the purchase or redemption of Equity Interests of the Company or any direct or indirect parent company of the Company to the extent described in Section 3.4(b)(iv);
(xxv) customer deposits and advance payments received in the ordinary course of business from customers for goods purchased in the ordinary course of business;
(xxvi) Indebtedness incurred by the Company or a Restricted Subsidiary in connection with bankers’ acceptances, discounted bills of exchange, warehouse receipts or similar facilities, or the discounting or factoring of receivables for credit management purposes, in each case incurred or undertaken in the ordinary course of business;
(xxvii) Indebtedness incurred by the Company or any Restricted Subsidiary to the extent that the net proceeds thereof are promptly deposited with the Trustee to satisfy and discharge the Notes in accordance with this Indenture;
(xxviii) (i) guarantees incurred in the ordinary course of business in respect of obligations to suppliers, customers, franchisees, lessors, licensees, sublicensees, photographers, image partners and distribution partners and (ii) Indebtedness incurred by the Company or a Restricted Subsidiary as a result of leases entered into by the Company or such Restricted Subsidiary in the ordinary course of business on behalf of customers for equipment to be used by the Company or such Restricted Subsidiary, such customers or a subcontractor in providing services to a customer and for which the Company or such Restricted Subsidiary will be reimbursed by such customer;
(xxix) the incurrence by the Company or any Restricted Subsidiary of Indebtedness consisting of guarantees of Indebtedness incurred by Permitted Joint Ventures; provided that the aggregate principal amount of Indebtedness guaranteed pursuant to this clause (xxix) does not at any one time outstanding exceed the greater of (x) $50.0 million and (y) 15.0% of Four Quarter EBITDA; and
(xxx) Indebtedness, Disqualified Stock or Preferred Stock of the Company or a Restricted Subsidiary incurred to finance or assumed in connection with an acquisition of any assets (including Capital Stock), business or Person in a principal amount not to exceed $85.0 million in the aggregate at any one time outstanding together with all other Indebtedness, Disqualified Stock and/or Preferred Stock issued under this clause (xxx), and any Refinancing Indebtedness in respect thereof.
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(c) For purposes of determining compliance with this Section 3.3, (x) in the event that an item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) meets the criteria of more than one of the categories of Permitted Debt or is entitled to be Incurred pursuant to Section 3.3(a), the Company shall, in its sole discretion, at the time of Incurrence, divide, classify or reclassify, or at any later time divide, classify or reclassify, such item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) in any manner that complies with this Section 3.3; provided that the Senior Credit Agreement, the Secured Notes, and all Indebtedness under a Credit Agreement Incurred under Section 3.3(b)(i) shall be deemed to have been Incurred pursuant to Section 3.3(b)(i) and the Company shall not be permitted to reclassify all or any portion of such Indebtedness, (y) in the event that Indebtedness could be Incurred in part under Section 3.3(a) and/or Section 3.3(b)(xv) (other than by reason of Section 3.3(b)(xv)(2)), the Company, in its sole discretion, may classify a portion of such Indebtedness as having been Incurred under Section 3.3(a) and/or Section 3.3(b)(xv) and thereafter the remainder of such Indebtedness as having been Incurred under any other clause of Section 3.3(b) and (z) in connection with the Incurrence or issuance, as applicable, of (i) revolving loan Indebtedness under this Section 3.3 or (ii) any commitment relating to the Incurrence or issuance of Indebtedness, Disqualified Stock or Preferred Stock under this Section 3.3 and the granting of any Lien to secure such Indebtedness, the Company or applicable Restricted Subsidiary may designate such Incurrence or issuance and the granting of any Lien therefor as having occurred on the date of first Incurrence of such revolving loan Indebtedness or commitment (such date, the “Deemed Date”), and any related subsequent actual Incurrence or issuance and granting of such Lien therefor will be deemed for all purposes under this Indenture to have been Incurred or issued and granted on such Deemed Date, including, without limitation, for purposes of calculating the Consolidated Total Debt Ratio, Consolidated Senior Secured Debt Ratio, Consolidated First Lien Debt Ratio, usage of any baskets hereunder (if applicable) and Four Quarter EBITDA and all such calculations on and after the Deemed Date until the termination or funding of such commitment shall be made on a pro forma basis giving effect to the deemed Incurrence or issuance, the granting of any Lien therefor and related transactions in connection therewith.
Notwithstanding anything in this Section 3.3 to the contrary, in the case of any Indebtedness incurred to refinance Indebtedness initially incurred in reliance on a clause of Section 3.3(b) measured by reference to a percentage of Four Quarter EBITDA at the time of Incurrence, if such refinancing would cause the percentage of Four Quarter EBITDA restriction to be exceeded if calculated based on the percentage of Four Quarter EBITDA on the date of such refinancing, such percentage of Four Quarter EBITDA restriction shall not be deemed to be exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus premiums (including tender premiums), defeasance costs, accrued and unpaid interest and fees in connection with such refinancing.
Accrual of interest, the accretion of accreted value, the amortization of original issue discount, the payment of interest in the form of additional Indebtedness with the same terms, the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of Disqualified Stock or Preferred Stock of the same class, the accretion of liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies will not be deemed to be an Incurrence of Indebtedness, Disqualified Stock or Preferred Stock for purposes of this Section 3.3. Guarantees of, or obligations in respect of letters of credit relating to, Indebtedness that are otherwise included in the determination of a particular amount of Indebtedness shall not be included in the determination of such amount of Indebtedness; provided that the Incurrence of the Indebtedness represented by such guarantee or letter of credit, as the case may be, was in compliance with this Section 3.3.
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(d) For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in the case of term debt, or first committed or first Incurred (whichever yields the lower U.S. dollar-equivalent), in the case of revolving credit debt; provided that if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced.
(e) Notwithstanding any other provision of this Section 3.3, the maximum amount of Indebtedness that the Company or a Restricted Subsidiary may Incur pursuant to this Section 3.3 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.
SECTION 3.4 Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries, directly or indirectly, to:
(i) declare or pay any dividend or make any payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests, including any payment made in connection with any merger or consolidation involving the Company (other than (X) dividends or distributions by the Company payable solely in Equity Interests (other than Disqualified Stock) of the Company; or (Y) dividends or distributions by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly Owned Restricted Subsidiary, the Company or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities);
(ii) purchase, redeem, defease or otherwise acquire or retire for value any Equity Interests of the Company or any direct or indirect parent of the Company, including in connection with any merger or consolidation;
(iii) make any principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value, in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Subordinated Indebtedness of the Company (other than the payment, redemption, repurchase, defeasance, acquisition or retirement of (A) Subordinated Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such payment, redemption, repurchase, defeasance, acquisition or retirement and (B) Indebtedness permitted under clause (vii) or (ix) of the definition of “Permitted Debt”); or
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(iv) make any Restricted Investment;
(all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of such Restricted Payment:
(A) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(B) immediately after giving effect to such transaction on a pro forma basis, the Company could Incur $1.00 of additional Indebtedness under Section 3.3(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Original Issue Date (including Restricted Payments permitted by Sections 3.4(b)(i) and 3.4(b)(viii), but excluding all other Restricted Payments permitted by Section 3.4(b)), is less than the sum of, without duplication:
(1) 50.0% of the Consolidated Net Income of the Company for the period (taken as one accounting period) beginning on January 1, 2019 to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income shall be a deficit, minus 100.0% of such aggregate deficit), plus
(2) 100.0% of the aggregate net proceeds, including cash and the Fair Market Value of assets other than cash, received by the Company after the Issue Date from the issue or sale of Equity Interests of the Company (other than Excluded Equity), including such Equity Interests issued upon exercise of warrants or options, plus
(3) 100.0% of the aggregate amount of contributions to the capital of the Company received in cash and the Fair Market Value of assets other than cash after the Issue Date (other than Excluded Equity), plus
(4) the principal amount of any Indebtedness, or the liquidation preference or maximum fixed repurchase price, as the case may be, of any Disqualified Stock, in each case, of the Company or any Restricted Subsidiary thereof issued after the Issue Date (other than Indebtedness or Disqualified Stock issued to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Company or any Restricted Subsidiary (other than to the extent such employee stock ownership plan or trust has been funded by the Company or any Restricted Subsidiary)) that, in each case, has been converted into or exchanged for Equity Interests in the Company or any direct or indirect parent of the Company (other than Excluded Equity), plus
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(5) 100.0% of the aggregate amount received by the Company or any Restricted Subsidiary in cash and the Fair Market Value of assets other than cash received by the Company or any Restricted Subsidiary from:
(A) the sale or other disposition (other than to the Company or a Subsidiary of the Company) of Restricted Investments made by the Company and its Restricted Subsidiaries and from repurchases and redemptions of such Restricted Investments from the Company and its Restricted Subsidiaries by any Person (other than the Company or any of its Subsidiaries) and from repayments of loans or advances which constituted Restricted Investments (other than in each case to the extent that the Restricted Investment was made pursuant to Section 3.4(b)(x));
(B) the sale (other than to the Company or a Restricted Subsidiary or an employee stock ownership plan or trust established by the Company or any Restricted Subsidiary (other than to the extent such employee stock ownership plan or trust has been funded by the Company or any Restricted Subsidiary)) of the Capital Stock of an Unrestricted Subsidiary; or
(C) any distribution or dividend from an Unrestricted Subsidiary; plus
(6) in the event any Unrestricted Subsidiary of the Company has been redesignated as a Restricted Subsidiary or has been merged or consolidated with or into, or transfers or conveys its assets to, or is liquidated into, the Company or a Restricted Subsidiary of the Company, in each case after the Issue Date, the Fair Market Value of the Investment of the Company in such Unrestricted Subsidiary at the time of such redesignation, combination or transfer (or of the assets transferred or conveyed, as applicable), after deducting any Indebtedness associated with the Unrestricted Subsidiary so designated or combined or any Indebtedness associated with the assets so transferred or conveyed (other than in each case to the extent that the designation of such Subsidiary as an Unrestricted Subsidiary was made pursuant to Section 3.4(b)(x) or constituted a Permitted Investment).
(b) The provisions of Section 3.4(a) will not prohibit:
(i) the payment of any dividend or distribution or consummation of any redemption within 60 days after the date of declaration thereof or the giving of a redemption notice related thereto, if at the date of declaration or notice such payment would have complied with the provisions of this Indenture;
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(ii) (a) the redemption, repurchase, retirement or other acquisition of any Equity Interests (“Retired Capital Stock”) of the Company or any direct or indirect parent of the Company, or Subordinated Indebtedness of the Company, in exchange for, or out of the proceeds of the issuance or sale of, Equity Interests of the Company or any direct or indirect parent of the Company or contributions to the equity capital of the Company (other than Excluded Equity) (collectively, including any such contributions, “Refunding Capital Stock”);
(b) the declaration and payment of accrued dividends on the Retired Capital Stock out of the proceeds of the issuance or sale (other than to a Subsidiary of the Company or to an employee stock ownership plan or any trust established by the Company or any of its Subsidiaries) of Refunding Capital Stock; and
(c) if immediately prior to the retirement of the Retired Capital Stock, the declaration and payment of dividends thereon was permitted under Section 3.4(b)(vi) and has not been made as of such time (the “Unpaid Amount”), the declaration and payment of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Equity Interests of the Company or any direct or indirect parent of the Company) in an aggregate amount no greater than the Unpaid Amount;
(iii) the redemption, repurchase or other acquisition or retirement of Subordinated Indebtedness of the Company made by exchange for, or out of the proceeds of the Incurrence of, Refinancing Indebtedness thereof;
(iv) the purchase, retirement, redemption or other acquisition (or Restricted Payments to the Company or any direct or indirect parent of the Company to finance any such purchase, retirement, redemption or other acquisition) for value of Equity Interests (other than Disqualified Stock) of the Company or any direct or indirect parent of the Company held by any future, present or former employee, officer, director, consultant or independent contractor of the Company or any direct or indirect parent of the Company or any Subsidiary of the Company (or their estates, heirs, family members, spouses, former spouses or permitted transferees) pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or other agreement or arrangement; provided, however, that, except with respect to non-discretionary purchases, the aggregate amounts paid under this clause (iv) shall not exceed (x) the greater of $15.0 million and 7.5% of Four Quarter EBITDA in any calendar year or (y) subsequent to the consummation of an underwritten public Equity Offering of common stock of the Company or any direct or indirect parent of the Company (an “IPO”), the greater of $25.0 million and 10.0% of Four Quarter EBITDA in any calendar year (with unused amounts in any calendar year being permitted to be carried over for the next two succeeding calendar years; provided that, in no event, shall the aggregate amounts paid under this clause (iv) exceed the greater of $30.0 million and 15.0% of Four Quarter EBITDA in any calendar year); provided, further, however, that such amount in any calendar year may be increased by an amount not to exceed:
(a) the cash proceeds received by the Company from the issuance or sale of Equity Interests (other than Disqualified Stock) of the Company or any direct or indirect parent of the Company (to the extent contributed to the Company), in each case, to members of management, employees, officers, directors, consultants or independent contractors (or their estate, heirs, family members, spouse and/or former spouse) of the Company and its Restricted Subsidiaries or the Company or any direct or indirect parent of the Company that occurs after the Issue Date; provided that the amount of such cash proceeds utilized for any such repurchase, retirement, other acquisition or dividend will not increase the amount available for Restricted Payments under Section 3.4(a)(C); plus
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(b) the cash proceeds of key man life insurance policies received by the Company or any direct or indirect parent of the Company (to the extent contributed to the Company) and its Restricted Subsidiaries after the Issue Date; plus
(c) the amount of any cash bonuses otherwise payable to members of management, employees, officers, directors, consultants or independent contractors of the Company and its Restricted Subsidiaries or any direct or indirect parent of the Company in connection with the Transactions that are foregone in return for the receipt of Equity Interests; less
(d) the amount of cash proceeds described in clause (a), (b) or (c) of this clause (iv) previously used to make Restricted Payments pursuant to this clause (iv); (provided that the Company may elect to apply all or any portion of the aggregate increase contemplated by clauses (a), (b) and (c) above in any calendar year); in addition, cancellation of Indebtedness owing to the Company or any Restricted Subsidiary from any current or former officer, director, employee, consultant or independent contractor (or any permitted transferees thereof) of the Company or any of its Restricted Subsidiaries (or any direct or indirect parent company thereof), in connection with a repurchase of Equity Interests of the Company from such Persons will not be deemed to constitute a Restricted Payment for purposes of this Section 3.4 or any other provisions of this Indenture;
(v) the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Company or any of its Restricted Subsidiaries and any Preferred Stock of any Restricted Subsidiaries issued or Incurred in accordance with Section 3.3;
(vi) the declaration and payment of dividends or distributions to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) and the declaration and payment of dividends to the Company or any direct or indirect parent of the Company, the proceeds of which will be used to fund the payment of dividends to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) of the Company or any direct or indirect parent of the Company issued after the Issue Date; provided, however, that (A) for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of issuance of such Designated Preferred Stock, after giving effect to such issuance (and the payment of dividends or distributions) on a pro forma basis, the Consolidated Total Debt Ratio of the Company and its Restricted Subsidiaries would have been no greater than 5.50 to 1.00 and (B) the aggregate amount of dividends declared and paid pursuant to this clause (vi) does not exceed the net cash proceeds actually received by the Company from the sale (or the contribution of the net cash proceeds from the sale) of Designated Preferred Stock (other than Disqualified Stock);
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(vii) any Restricted Payments made in connection with the consummation of the Transactions, the Limited Partnership Agreement (or similar organizational document of any direct or indirect parent of the Company), excluding, for the avoidance of doubt, any prepayments, repayments, dividends or distributions in respect of the Preferred Equity Interests, or any Indemnification Agreement, including any payments or loans made to the Company or any direct or indirect parent to enable it to make any such payments;
(viii) the declaration and payment of dividends on the Company’s common stock (or the payment of dividends to any direct or indirect parent of the Company to fund the payment by any direct or indirect parent of the Company of dividends on such entity’s common stock) of up to 6.0% per annum of the net cash proceeds received by the Company from any such public offering of common stock or contributed to the Company by any direct or indirect parent of the Company from any such public offering of common stock, other than public offerings with respect to the Company’s common stock registered on Form S-4 or S-8 and other than any public sale constituting Excluded Contributions;
(ix) Restricted Payments in an aggregate amount not to exceed the aggregate amount of Excluded Contributions;
(x) other Restricted Payments in an aggregate amount taken together with all other Restricted Payments made pursuant to this clause (x) not to exceed the greater of (x) $50.0 million and (y) 15.0% of Four Quarter EBITDA, at the time of such Restricted Payment;
(xi) the payment, purchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness, Disqualified Stock or Preferred Stock of the Company and its Restricted Subsidiaries pursuant to provisions similar to those described under Sections 3.9 and 3.7; provided that, prior to such payment, purchase, redemption, defeasance or other acquisition or retirement for value, the Company (or a third party to the extent permitted by this Indenture) has made a Change of Control Offer or Asset Sale Offer, as the case may be, with respect to the Notes as a result of such Change of Control or Asset Sale, as the case may be, and has repurchased all Notes validly tendered and not withdrawn in connection with such Change of Control Offer or Asset Sale Offer, as the case may be;
(xii) the Company, Holdings or any Restricted Subsidiary may make Restricted Payments to Super Holdco (or any other direct or indirect parent of the Company)the proceeds of which will be used to discharge consolidated, combined, unitary or similar tax liabilities of Super Holdco (or such other direct or indirect parent of the Company), which, for the avoidance of doubt, will include income taxes, franchise taxes and other similar taxes imposed in lieu of income taxes, when and as due, to the extent such liabilities are attributable to the ownership or operations of Holdings and its Subsidiaries;
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(xiii) the payment of dividends, other distributions or other amounts to, or the making of loans to Super Holdco or any other direct or indirect parent, in the amount required for such entity to, if applicable:
(a) pay amounts equal to the amounts required for Super Holdco or any other direct or indirect parent of the Company to pay fees and expenses, customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers and employees of Super Holdco or any other direct or indirect parent of the Company, if applicable, and general corporate operating and overhead expenses (including franchise taxes and other taxes imposed on a separate company basis) of Super Holdco or any other direct or indirect parent of the Company, if applicable, in each case to the extent such fees, expenses, salaries, bonuses, benefits and indemnities are attributable to the ownership or operation of the Company and its Subsidiaries;
(b) pay, if applicable, amounts equal to amounts required for Super Holdco or any other direct or indirect parent of the Company to pay interest and/or principal on Indebtedness the proceeds of which have been contributed to the Company (other than as Excluded Equity) and that has been guaranteed by, and is otherwise considered Indebtedness of, the Company or any Restricted Subsidiary Incurred in accordance with Section 3.3 (except to the extent any such payments have otherwise been made by any such guarantor);
(c) pay fees and expenses incurred by Super Holdco or any other direct or indirect parent of the Company related to (i) the maintenance of such parent entity of its corporate or other entity existence and performance of its obligations under this Indenture and similar obligations under the Senior Credit Agreement, (ii) any unsuccessful equity or debt offering of such parent and (iii) any offering or debt issuance, incurrence or offering, disposition or acquisition or investment transaction by the Company or any of its Restricted Subsidiaries (or any acquisition of or investment in any business, assets or property that will be contributed to the Company or any of its Restricted Subsidiaries as part of the same or a related transaction) permitted by this Indenture; and
(d) make payments (i) pursuant to any Management Agreement, solely to the extent such amounts are not paid directly by the Company or its Subsidiaries or (ii) for any other financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures, including in connection with the consummation of the Transactions, which payments (x) are made pursuant to agreements described in the Offering Memorandum or (y) are approved by a majority of the Board of Directors of the Company in good faith; provided that the aggregate amount of any such payments under this clause (d) (other than reimbursements of expenses) shall not exceed $5.0 million annually;
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(xiv) (i) repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants, (ii) payments made by the Company or any Restricted Subsidiary in respect of withholding or similar taxes payable or expected to be payable by any present or former director, officer, employee, consultant or independent contractor of the Company or any direct or indirect parent of the Company or any Subsidiary of the Company (or their respective Affiliates, estates or immediate family members) in connection with the exercise of stock options or grant, vesting or delivery of Equity Interests and (iii) loans or advances to officers, directors, employees, consultants and independent contractors of the Company or any direct or indirect parent of the Company or any Subsidiary of the Company in connection with such Person’s purchase of Equity Interests of the Company or any direct or indirect parent of the Company; provided that no cash is actually advanced pursuant to this clause (iii) other than to pay taxes due in connection with such purchase, unless immediately repaid;
(xv) purchases of receivables pursuant to a Receivables Repurchase Obligation in connection with a Qualified Receivables Financing and the payment or distribution of Receivables Fees;
(xvi) payments or distributions to satisfy dissenters’ rights, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with the provisions of this Indenture applicable to mergers, consolidations and transfers of all or substantially all the property and assets of the Company;
(xvii) the distribution, as a dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to the Company or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents);
(xviii) the payment of cash in lieu of the issuance of fractional shares of Equity Interests in connection with any dividend or split of, or upon exercise or conversion of securities exercisable or convertible into, Equity Interests of the Company or any direct or indirect parent of the Company;
(xix) Investments in Unrestricted Subsidiaries in an aggregate amount, taken together with all other Investments made pursuant to this clause (xix) that are at the time outstanding, without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities, not to exceed the greater of $75.0 million and 25.0% of Four Quarter EBITDA; and
(xx) on and after the Merger Closing Date, dividends, loans, advances or distributions to any Parent Entity or other payments by the Company or any Restricted Subsidiary in amounts equal to (without duplication) amounts constituting or to be used for purposes of making payments to the extent specified in Section 3.8(b)(vi);
provided, however, that at the time of, and after giving effect to, any Restricted Payment permitted under clause (x) of this Section 3.4(b), no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof. For purposes of Sections 3.4(b)(xii) and (xiii) above, taxes shall include all interest and penalties with respect thereto and all additions thereto.
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For purposes of determining compliance with this Section 3.4, (A) a Restricted Payment or Permitted Investment need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) or Permitted Investments (or any portion thereof) described in the above clauses or the definitions thereof but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) or Permitted Investment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) or Permitted Investments (or any portion thereof) described in the above clauses or the definitions thereof, the Company may, in its sole discretion, divide or classify such permitted Restricted Payment (or any portion thereof) or Permitted Investment (or any portion thereof) in any manner that complies with this Section 3.4 and at the time of division or classification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) or Permitted Investment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) or Permitted Investments (or any portion thereof) described in the above clauses or the definitions thereof. In the event that a Restricted Payment (or any portion thereof) or Permitted Investment (or any portion thereof) is divided or classified under Section 3.4(b)(vi) above (such clause, the “Incurrence Clause”), the determination of the amount of such Restricted Payment or Permitted Investment that may be made pursuant to the Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Incurrence of Indebtedness to finance any other Restricted Payment (or any portion thereof) or Permitted Investment (or any portion thereof) divided or classified under any of the above clauses or the definitions thereof other than an Incurrence Clause.
As of the Issue Date, all of the Company’s Subsidiaries will be Restricted Subsidiaries. The Company will not permit any Unrestricted Subsidiary to become a Restricted Subsidiary except pursuant to the definition of “Unrestricted Subsidiary.” For purposes of designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments in an amount determined as set forth in the last sentence of the definition of “Investments.” Such designation will only be permitted if a Restricted Payment or Permitted Investment in such amount would be permitted at such time and if such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
For the avoidance of doubt, this Section 3.4 shall not restrict the making of any “AHYDO catch-up payment” with respect to, and required by the terms of, any Indebtedness of the Company or any of its Restricted Subsidiaries permitted to be Incurred under this Indenture.
SECTION 3.5 Liens.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create, Incur or suffer to exist any Lien (other than Permitted Liens) on any asset or property of the Company or such Restricted Subsidiary, or any income or profits therefrom, or assign or convey any right to receive income therefrom, that secures any Indebtedness of the Company or such Restricted Subsidiary, unless (1) in the case of Liens securing Subordinated Indebtedness, the Notes and any applicable Guarantee are secured by a Lien on such property or assets of the Company or such Restricted Subsidiary and proceeds thereof that is senior in priority to such Liens; or (2) in all other cases, the Notes and the applicable Guarantee are equally and ratably secured with or prior to such Obligation with a Lien on the same assets of the Company or such Restricted Subsidiary, as the case may be.
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(b) Any Lien which is granted to secure the Notes or such Guarantee under Section 3.5(a) above shall be automatically released and discharged at the same time as the release of the Lien (other than a release following enforcement of remedies in respect of such Lien or the Obligations secured by such Lien) that gave rise to the obligation to secure the Notes or such Guarantee under Section 3.5(a).
(c) Notwithstanding anything to the contrary herein, the Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create, Incur or suffer to exist any Secured Junior Debt on any asset or property of the Company or such Restricted Subsidiary, or any income or profits therefrom, or assign or convey any right to receive income therefrom.
(d) For purposes of determining compliance with this Section 3.5, (A) a Lien securing an item of Indebtedness (or any portion thereof) need not be permitted solely by reference to one category of permitted Liens (or any portion thereof) described in the definition of “Permitted Liens” or pursuant to Section 3.5(a) but may be permitted in part under any combination thereof and (B) in the event that a Lien securing an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of permitted Liens (or any portion thereof) described in the definition of “Permitted Liens” or pursuant to Section 3.5(a), the Company may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify (as if Incurred at such later time) such Lien securing such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 3.5 and at the time of Incurrence, division, classification or reclassification will be entitled to only include the amount and type of such Lien or such item of Indebtedness secured by such Lien (or such portion thereof) in one of the categories of permitted Liens (or any portion thereof) described in the definition of “Permitted Liens” or pursuant to Section 3.5 (a) and, in such event, such Lien securing such item of Indebtedness (or such portion thereof) will be treated as being Incurred or existing pursuant to only such clause or clauses (or such portion thereof) or pursuant to Section 3.5 (a) without giving pro forma effect to such item (or such portion thereof) when calculating the amount of Liens or Indebtedness (or such portion thereof) that may be Incurred pursuant to any other clause or paragraph (or any portion thereof) at such time. In addition, with respect to any revolving loan Indebtedness or commitment relating to the Incurrence of Indebtedness that is designated to be Incurred on any date pursuant to Section 3.3(b)(xxvi), any Lien that does or that shall secure such Indebtedness may also be designated by the Company or any Restricted Subsidiary to be Incurred on such date and, in such event, any related subsequent actual Incurrence of such Lien shall be deemed for all purposes under this Indenture to be Incurred on such prior date, including for purposes of calculating usage of any “Permitted Lien” until such time as the related Indebtedness is no longer deemed outstanding pursuant to Section 3.3(b)(xxvi).
(e) With respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the Incurrence of such Indebtedness, such Lien shall also be permitted to secure any Increased Amount of such Indebtedness. The “Increased Amount” of any Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortization of original issue discount or deferred financing costs, the payment of interest in the form of additional Indebtedness with the same terms or in the form of common stock of the Company, the payment of dividends on Preferred Stock in the form of additional shares of Preferred Stock of the same class, accretion of original issue discount or deferred financing costs or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Indebtedness described in clause (iii) of the definition of “Indebtedness.”
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SECTION 3.6 Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries on its Capital Stock; or (ii) pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries;
except in each case for such encumbrances or restrictions existing under or by reason of:
(i) contractual encumbrances or restrictions of the Company or any of its Restricted Subsidiaries in effect on the Issue Date, including pursuant to the Senior Credit Agreement and the other documents relating to the Senior Credit Agreement and the documents relating to the Preferred Equity Interests;
(ii) this Indenture, the Notes and the Guarantees;
(iii) applicable law or any applicable rule, regulation or order;
(iv) any agreement or other instrument of a Person acquired by the Company or any Restricted Subsidiary which was in existence at the time of such acquisition (or at the time it merges with or into the Company or any Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in each case, not created in contemplation thereof)), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that for purposes of this clause (iv), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
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(v) customary encumbrances or restrictions contained in contracts or agreements for the sale of assets applicable to such assets pending consummation of such sale, including customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary;
(vi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) customary provisions in operating or other similar agreements, asset sale agreements, stock sale agreements entered into in connection with the entering into of such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(viii) purchase money obligations for property acquired and Capitalized Lease Obligations entered into in the ordinary course of business, to the extent such obligations impose restrictions of the nature discussed in clause (c) above on the property so acquired;
(ix) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent such obligations impose restrictions of the type described in clause (c) above on the property subject to such lease;
(x) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restrictions apply only to such Receivables Subsidiary;
(xi) other Indebtedness, Disqualified Stock or Preferred Stock of the Company or any Restricted Subsidiary of the Company that is Incurred subsequent to the Issue Date pursuant to Section 3.3; provided that (i) such encumbrances and restrictions contained in any agreement or instrument will not materially affect the Company’s ability to make anticipated principal or interest payments on the Notes (as determined by the Company in good faith) or (ii) such encumbrances and restrictions contained in any agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than the encumbrances and restrictions contained in this Indenture or the Senior Credit Agreement (as determined by the Company in good faith);
(xii) any encumbrance or restriction contained in Secured Indebtedness otherwise permitted to be Incurred pursuant to Sections 3.3 and 3.5 to the extent limiting the right of the debtor to dispose of the assets securing such Indebtedness;
(xiii) any encumbrance or restriction arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that, individually or in the aggregate, (x) do not detract from the value of the property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary or (y) do not materially affect the Company’s ability to make future principal or interest payments on the Notes, in each case, as determined by the Company in good faith;
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(xiv) customary provisions in joint venture agreements and other similar agreements relating solely to the applicable joint venture; and
(xv) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiv) above; provided that such restrictions and encumbrances contained in any such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing are, in the good faith judgment of the Company, not materially more restrictive as a whole than the encumbrances and restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
For purposes of determining compliance with this Section 3.6, (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Company or a Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
SECTION 3.7 Asset Sales.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, cause or make an Asset Sale, unless:
(i) the Company or any of its Restricted Subsidiaries, as the case may be, receives consideration (measured at the time of contractually agreeing to such Asset Sale) at least equal to the Fair Market Value of the assets sold or otherwise disposed of; and
(ii) except in the case of a Permitted Asset Swap, at least 75.0% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or Replacement Assets; provided, however, that the amount of:
(1) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto other than liabilities that are by their terms subordinated to the obligations of the Notes) of the Company or such Restricted Subsidiary that are assumed by the transferee of any such assets or Equity Interests pursuant to an agreement that releases or indemnifies the Company or such Restricted Subsidiary, as the case may be, from further liability;
(2) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days of the receipt thereof; and
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(3) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (3) that is at that time outstanding, not to exceed the greater of (x) $50.0 million and (y) 15.0% of Four Quarter EBITDA, at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value);
shall each be deemed to be Cash Equivalents for the purposes of this clause (ii).
(b) Within 365 days after the Company’s or any Restricted Subsidiary’s receipt of the Net Cash Proceeds of any Asset Sale, the Company or such Restricted Subsidiary may apply an amount equal to the Net Cash Proceeds from such Asset Sale, at its option:
(i) to permanently reduce Obligations under the Senior Credit Agreement and, in the case of revolving loans, to correspondingly reduce commitments with respect thereto;
(ii) to permanently reduce Obligations under Indebtedness (other than Subordinated Indebtedness) that is secured by a Lien, which Lien is permitted by this Indenture and, in the case of revolving loans, to correspondingly reduce commitments with respect thereto;
(iii) to permanently reduce Obligations under (x) Pari Passu Indebtedness of the Company or the Guarantors (provided that if the Company or any Guarantor shall so reduce such Obligations under such other Pari Passu Indebtedness, the Company will (A) equally and ratably reduce Obligations under the Notes as provided under Article V or through open-market purchases (to the extent such purchases are at or above 100.0% of the principal amount thereof) or (B) make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to 100.0% of the principal amount thereof, plus accrued and unpaid interest, if any, the principal amount of Notes that would be redeemed under clause (A) above) or (y) Indebtedness of a Non-Guarantor Subsidiary, in each case, other than Indebtedness owed to the Company or another Restricted Subsidiary (and, in each case, correspondingly reduce commitments with respect thereto);
(iv) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Company), assets (other than working capital assets), or property or capital expenditures, in each case used or useful in a Similar Business;
(v) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Company), properties (other than working capital assets) or assets (other than working capital assets) in each case (a) used or useful in a Similar Business or (b) that replace the businesses, properties and/or assets that are the subject of such Asset Sale; or
(vi) any combination of the foregoing;
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provided that the Company and its Restricted Subsidiaries will be deemed to have complied with the provisions described in clauses (iv) and (v) of this Section 3.7(b) if and to the extent that, within 365 days after the Asset Sale that generated the Net Cash Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to make an investment in compliance with the provision described in clauses (iv) and (v) of this Section 3.7(b), and that investment is thereafter completed within 180 days after the end of such 365-day period.
Notwithstanding the foregoing, to the extent that any or all of the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Cash Proceeds so affected shall not be required to be applied in compliance with Section 3.7(b) above and Sections 3.7(c) through (f) below, but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation to the United States (the Company hereby agreeing to use reasonable efforts to cause the applicable Foreign Subsidiary to take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation), and once such repatriation of any of such affected Net Cash Proceeds is permitted under the applicable local law, such repatriation shall be promptly effected and such repatriated Net Cash Proceeds will be promptly applied (whether or not repatriation actually occurs) in compliance with this Section 3.7.
(c) Pending the final application of any such amount of Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest or utilize such Net Cash Proceeds in any manner not prohibited by this Indenture. Any amount of Net Cash Proceeds from any Asset Sale that are not invested or applied as provided and within the time period set forth in Section 3.7(b) will be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company will make an offer (an “Asset Sale Offer”) to all Holders of Notes and, if required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, to purchase the maximum principal amount of such Notes and Pari Passu Indebtedness, as appropriate, on a pro rata basis, that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100.0% of the principal amount thereof (or in the event such Pari Passu Indebtedness was issued with original issue discount, 100.0% of the accreted value thereof), plus accrued and unpaid interest and additional interest, if any (or such lesser price, if any, as may be provided by the terms of such Pari Passu Indebtedness), to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture and the agreement governing such Pari Passu Indebtedness. The Company will commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $15.0 million by mailing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee or otherwise in accordance with the procedures of the Depositary. The Company may satisfy the foregoing obligations with respect to such Net Cash Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Cash Proceeds prior to the expiration of the application period. To the extent that the aggregate amount of Notes and such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and Pari Passu Indebtedness, as appropriate, so tendered exceeds the amount of Excess Proceeds, the Company shall select the Notes and the Company or its agent shall select such Pari Passu Indebtedness to be purchased in the manner described below. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
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(d) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws or regulations are applicable in connection with the purchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Indenture by virtue thereof.
(e) If more Notes are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of such Notes for purchase will be made in compliance with the requirements of DTC, or, if the Notes are not held through DTC, or DTC prescribes no method of selection, on a pro rata basis (with adjustments so that only Notes in denominations of the Minimum Denomination or integral multiples of $1,000 in excess thereof shall be purchased) or by lot (and in such manner as complies with applicable legal requirements); provided that the selection of Notes for purchase shall not result in a Noteholder with a principal amount of Notes less than the Minimum Denomination. No Note will be repurchased in part if less than the Minimum Denomination of such Note would be left outstanding.
(f) Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, or sent electronically, at least 30 but not more than 60 days before the Purchase Date to each Holder at such Holder’s registered address or otherwise in accordance with procedures of the Depositary. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
A new Note in principal amount equal to the unpurchased portion of any Note purchased in part will be issued in the name of the Holder thereof upon cancellation of the original Note. On and after the Purchase Date, unless the Company defaults in payment of the purchase price, interest shall cease to accrue on Notes or portions thereof purchased.
SECTION 3.8 Transactions with Affiliates.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction or series of transactions, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each of the foregoing, an “Affiliate Transaction”) involving aggregate consideration in excess of $5.0 million, unless:
(i) such Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person on an arm’s length basis; and
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(ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, the terms of such Affiliate Transaction or series of related Affiliate Transactions have been approved by a majority of the members of the Board of Directors who are disinterested in the subject matter of the transaction pursuant to a board resolution delivered to the Trustee.
(b) The provisions of Section 3.8(a) will not apply to the following:
(i) (a) transactions between or among the Company and/or any of its Restricted Subsidiaries (or an entity that becomes a Restricted Subsidiary as a result of such transaction) and (b) any merger or consolidation of the Company and Super Holdco or any other direct parent of the Company (each a “Holdings Merger”); provided that such parent company shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Company and such merger or consolidation is otherwise in compliance with the terms of this Indenture and effected for a bona fide business purpose;
(ii) (a) Restricted Payments permitted by this Indenture and (b) Permitted Investments;
(iii) transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is either fair to the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of Section 3.8(a)(i) above;
(iv) payments or loans (or cancellation of loans, advances or guarantees) or advances to employees, consultants or independent contractors or guarantees in respect thereof for bona fide business purposes in the ordinary course of business;
(v) any agreement as in effect as of the Issue Date or as thereafter amended, supplemented or replaced (so long as such amendment, supplement or replacement agreement is not materially disadvantageous, in the good faith judgment of the Board of Directors of the Company, to the Holders of the Notes when taken as a whole as compared to the original agreement as in effect on the Issue Date) or any transaction or payments (including reimbursement of out-of-pocket expenses) contemplated thereby;
(vi) on and after the Merger Closing Date, the Merger and the payment of all fees, costs and expenses (including all legal, accounting and other professional fees, costs and expenses) associated or in connection with the Merger, including Merger Expenses;
(vii) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of the Indemnification Agreements, the Limited Partnership Agreement (or similar organizational document of any direct or indirect parent company of the Company), any stockholders or similar agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date or similar transactions, arrangements or agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under, any future amendment to any such existing transaction, arrangement or agreement or under any similar transaction, arrangement or agreement entered into after the Issue Date shall only be permitted by this clause (vii) to the extent that the terms of any such existing transaction, arrangement or agreement together with all amendments thereto, taken as a whole, or new agreement are not otherwise disadvantageous to the Holders of the Notes, in the good faith judgment of the Board of Directors of the Company, in any material respect when taken as a whole as compared with the original transaction, arrangement or agreement as in effect on the Issue Date;
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(viii) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which are fair to the Company and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or the senior management of the Company, and are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(ix) any transaction effected as part of a Qualified Receivables Financing;
(x) the sale or issuance of Equity Interests (other than Disqualified Stock) of the Company;
(xi) payments by the Company or any of its Restricted Subsidiaries made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures, which payments are (x) made pursuant to agreements described in the Offering Memorandum or (y) approved by a majority of the Board of Directors of the Company in good faith or a majority of the disinterested members of the Board of Directors of the Company in good faith;
(xii) any contribution to the capital of the Company (other than Disqualified Stock);
(xiii) any transaction with a Person (other than an Unrestricted Subsidiary) that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an Equity Interest in or otherwise controls such Person; provided that no Affiliate of the Company or any of its Subsidiaries other than the Company or a Restricted Subsidiary shall have a beneficial interest or otherwise participate in such Person;
(xiv) transactions between the Company or any of its Restricted Subsidiaries and any Person that would constitute an Affiliate Transaction solely because a director of which is also a director of the Company or any direct or indirect parent of the Company; provided, however, that such director abstains from voting as a director of the Company or such direct or indirect parent of the Company, as the case may be, on any matter involving such other Person;
(xv) the entering into of any tax sharing agreement or arrangement and any payments permitted by Section 3.4(b)(xii);
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(xvi) transactions to effect the Transactions and the payment of all transaction, underwriting, commitment and other fees and expenses related to the Transactions;
(xvii) pledges of Equity Interests of Unrestricted Subsidiaries;
(xviii) the issuances of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock option and stock ownership plans or similar employee benefit plans approved by the Board of Directors of the Company or of a Restricted Subsidiary, as appropriate, in good faith;
(xix) any employment, consulting, service or termination agreement, or customary indemnification arrangements, entered into by the Company or any of its Restricted Subsidiaries with current, former or future officers, directors, employees, consultants and independent contractors of the Company or any of its Restricted Subsidiaries and the payment of compensation to officers, directors, employees, consultants and independent contractors of the Company or any of its Restricted Subsidiaries (including amounts paid pursuant to benefit plans, stock option or similar plans), in each case in the ordinary course of business or as otherwise approved by the Board of Directors of the Company or of a Restricted Subsidiary, as appropriate;
(xx) investments by Affiliates in Indebtedness or preferred Equity Interests of the Company or any of its Subsidiaries, so long as non-Affiliates were also offered the opportunity to invest in such Indebtedness or preferred Equity Interests, and transactions with Affiliates solely in their capacity as holders of Indebtedness or preferred Equity Interests of the Company or any of its Subsidiaries, so long as such transaction is with all holders of such class (and there are such non-Affiliate holders) and such Affiliates are treated no more favorably than all other holders of such class generally;
(xxi) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of their obligations under the terms of, any customary registration rights agreement to which they are a party or become a party in the future;
(xxii) investments by the Getty Investors, the Sponsor or any of their respective Affiliates in securities of the Company or any Restricted Subsidiary (and payment of reasonable out-of-pocket expenses incurred by the Getty Investors, the Sponsor or any of their respective Affiliates in connection therewith);
(xxiii) transactions with joint ventures for the purchase or sale of goods, equipment and services entered into in the ordinary course of business; and
(xxiv) the existence of or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the Option Agreement.
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SECTION 3.9 Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder shall have the right to require the Company to purchase all or any part of such Holder’s then outstanding Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but not including, the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date), except to the extent the Company has previously or concurrently elected to redeem all of the then outstanding Notes pursuant to Article V.
(b) Prior to or within 30 days following any Change of Control, except to the extent that the Company has exercised its right to redeem the Notes as described under Article V the Company shall deliver a notice (a “Change of Control Offer”) to each Holder with a copy to the Trustee describing:
(i) that a Change of Control has occurred or may occur and that such Holder has, or upon such occurrence will have, the right to require the Company to purchase such Holder’s then outstanding Notes at a purchase price in cash equal to 101.0% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant Interest Payment Date);
(ii) the transaction or transactions that constitute or are expected to constitute such Change of Control;
(iii) the purchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is delivered) (the “Change of Control Payment Date”);
(iv) that any Note not properly tendered will remain outstanding and continue to accrue interest;
(v) that unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on the Change of Control Payment Date;
(vi) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the tender agent appointed by the Company and specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(vii) that Holders will be entitled to withdraw their tendered Notes and their election to require the Company to purchase such Notes; providedthat the tender agent receives, not later than the expiration time of the Change of Control Offer, a facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
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(viii) that if the Company is redeeming less than all of the Notes, Holders of the remaining Notes will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to $2,000 or an integral multiple of $1,000 in excess thereof;
(ix) if such notice is delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(x) the other instructions determined by the Company, consistent with this Section 3.9, that a Holder must follow in order to have its Notes purchased.
(c) Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Change of Control Payment Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receive not later than the expiration of the Change of Control Offer, a telegram, telex facsimile transmission or letter setting forth the name of the Holder, the principal amount at maturity of the Note which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his selection to have such Note purchased.
(d) On the purchase date, all Notes purchased by the Company under this Section 3.9 shall be delivered by the Company to the Trustee for cancellation, and the Company shall through a tender agent pay the purchase price plus accrued and unpaid interest, if any, to the Holders entitled thereto. With respect to any Note purchased in part, the Company shall issue, and the Trustee shall authenticate, a new Note in a principal amount equal at maturity to the unpurchased portion of the original Note in the name of the Holder upon cancellation of the original Note. The unpurchased portion of the Notes must be equal to $2,000 or an integral multiple of $1,000 in excess thereof.
(e) Prior to any Change of Control Offer, the Company shall deliver to the Trustee an Officer’s Certificate stating that all conditions precedent contained herein to the right of each of the Company to make such offer have been complied with.
(f) Notwithstanding the foregoing provisions of this Section 3.9, the Company will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
(g) A Change of Control Offer may be made in advance of a Change of Control, and conditioned upon such Change of Control.
(h) The Company will comply, to the extent applicable, with the requirements of Rule 14e -1 of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 3.9. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 3.9, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 3.9 by virtue of such compliance.
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(i) On the Change of Control Payment Date, the Company will, to the extent permitted by law,
(i) accept for payment all Notes issued by the Company or portions thereof properly tendered pursuant to the Change of Control Offer;
(ii) deposit with the tender agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Company.
Notwithstanding the foregoing, in connection with any Change of Control Offer, if Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in such Change of Control Offer and the Company, or any third party making such Change of Control Offer in lieu of the Company, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company or such third party shall have the right upon not less than 15 nor more than 60 days’ prior notice, given not more than 15 days following such purchase date, to redeem all Notes that remain outstanding following such purchase at a redemption price in cash equal to 101.0% of the principal amount thereof plus, to the extent not included in the tender offer payment, accrued and unpaid interest, if any, thereon, to, but not including, the date of such redemption.
SECTION 3.10 Additional Guarantors.
(a) If, after the Issue Date, (a) any Restricted Subsidiary that is a Domestic Subsidiary (including any newly formed, newly acquired or newly redesignated Restricted Subsidiary, but excluding any Receivables Subsidiary) that is not then a Guarantor enters into any guarantee of or otherwise Incurs any capital markets Indebtedness or Indebtedness under any syndicated credit facilities or (b) the Company otherwise elects to have any Restricted Subsidiary become a Guarantor, then, in each such case, the Company shall cause such Restricted Subsidiary, within 20 Business Days of the date that such Indebtedness has been guaranteed, to execute and deliver to the Trustee a supplemental indenture pursuant to which such Restricted Subsidiary shall become a Guarantor under this Indenture governing the Notes providing for a Guarantee by such Restricted Subsidiary that ranks pari passu (on an unsecured basis) with such Indebtedness or such guarantee of such Indebtedness. A form of supplemental indenture for such purpose is attached as Exhibit E hereto.
(b) The Company shall cause Shutterstock and each of its Subsidiaries, within 20 Business Days of the Merger Closing Date, to execute and deliver to the Trustee a supplemental indenture to this Indenture in the form of Exhibit E hereto pursuant to which Shutterstock and each of its Subsidiaries shall provide a Guarantee of the Company’s obligations under the Notes and this Indenture.
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(c) Each Guarantee will be limited to an amount not to exceed the maximum amount that can be guaranteed by that Restricted Subsidiary without rendering the Guarantee, as it relates to such Restricted Subsidiary, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
(d) Each Guarantee shall be released upon the terms and in accordance with the provisions of Article X.
SECTION 3.11 [Reserved].
SECTION 3.12 Compliance Certificate; Statement by Officers as to Default. The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the Issue Date, an Officer’s Certificate to the effect that to the best knowledge of the signer thereof on behalf of the Company, the Company is or is not in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company (through its own action or omission or through the action or omission of any Guarantor as applicable) shall be in default, specifying all such defaults and the nature and status thereof of which such signer may have knowledge. Following qualification of this Indenture under the TIA, (i) each Guarantor shall, to the extent required by the TIA, comply with TIA § 314(a)(4), and (ii) the individual signing any certificate given by any Person pursuant to this Section 3.12 shall be the principal executive, financial or accounting officer of such Person, in compliance with TIA § 314(a)(4).
So long as any of the Notes are outstanding, the Company shall deliver to the Trustee, forthwith upon any Officer becoming aware of any Default or Event of Default, an Officer’s Certificate specifying such Default or Event of Default and what action the Company is taking or propose to take with respect thereto.
SECTION 3.13 [Reserved].
SECTION 3.14 Designation of Restricted and Unrestricted Subsidiaries.
(a) The Board of Directors of the Company may designate any Subsidiary of the Company (including any newly acquired or newly formed Subsidiary of the Company but excluding the Company) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on any property of, the Company or any other Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so designated; provided, however, that the Subsidiary to be so designated and its Subsidiaries do not at the time of designation have any Indebtedness pursuant to which the lender has recourse to any of the assets of the Company or any of its Restricted Subsidiaries; provided, further, however, that either:
(i) the Subsidiary to be so designated has total consolidated assets of $1,000 or less; or
(ii) if such Subsidiary has consolidated assets greater than $1,000, then such designation would be permitted under Section 3.4.
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(b) The Board of Directors of the Company may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however, that immediately after giving effect to such designation:
(x)(1) the Company could Incur $1.00 of additional Indebtedness pursuant to the Consolidated Total Debt Ratio test described under Section 3.3, or (2) the Consolidated Total Debt Ratio for the Company and its Restricted Subsidiaries would be no higher than such ratio for the Company and its Restricted Subsidiaries immediately prior to such designation, in each case on a pro forma basis taking into account such designation, and
(y) no Event of Default shall have occurred and be continuing.
(c) Any such designation by the Board of Directors of the Company shall be evidenced to the Trustee by promptly filing with the Trustee a copy of the resolution of the Board of Directors of the Company giving effect to such designation and an Officer’s Certificate certifying that such designation complied with this Section 3.14.
SECTION 3.15 Covenant Suspension.
(a) If on any date (i) the Notes have Investment Grade Ratings from both Rating Agencies, and (ii) no Default has occurred and is continuing under this Indenture (the occurrence of the events described in the foregoing clauses (i) and (ii) being collectively referred to as a “Covenant Suspension Event”), the Company and its Restricted Subsidiaries will not be subject to the covenants or provisions contained in Sections 3.3, 3.4, 3.6, 3.7, 3.8 and 4.1(a)(iv) (collectively, the “Suspended Covenants”).
(b) In the event that the Company and its Restricted Subsidiaries are not subject to the Suspended Covenants under this Indenture for any period of time pursuant to Section 3.15(a) (any such period, a “Suspension Period”), and on any subsequent date (the “Reversion Date”) one or both of the Rating Agencies withdraw their Investment Grade Rating or downgrade the rating assigned to the Notes below an Investment Grade Rating, then the Company and its Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants under this Indenture with respect to future events.
(c) Upon the occurrence of a Covenant Suspension Event, the amount of Excess Proceeds from Net Cash Proceeds shall be reset at zero.
(d) With respect to Restricted Payments made after any such reinstatement, the amount of Restricted Payments made will be calculated as though Section 3.4 had been in effect prior to, but not during, the Suspension Period; provided that no Subsidiaries may be designated as Unrestricted Subsidiaries during the Suspension Period, unless such designation would have complied with Section 3.4 as if Section 3.4 would have been in effect during such period. All Indebtedness Incurred, or Disqualified Stock or Preferred Stock issued, during the Suspension Period will be classified to have been Incurred or issued pursuant to Section 3.3(b)(iii). In addition, for purposes of Section 3.8, all agreements and arrangements entered into by the Company and any Restricted Subsidiary with an Affiliate of the Company during the Suspension Period prior to such Reversion Date will be deemed to have been entered into on or prior to the Issue Date and for purposes of Section 3.6, all contracts entered into during the Suspension Period prior to such Reversion Date that contain any of the restrictions contemplated by Section 3.6 will be deemed to have been existing on the Issue Date.
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(e) During the Suspension Period, any reference in the definitions of “Permitted Liens” and “Unrestricted Subsidiary” to Section 3.3 or any provision thereof shall be construed as if such covenant were in effect during the Suspension Period.
(f) Notwithstanding that the Suspended Covenants may be reinstated, no Default or Event of Default will be deemed to have occurred for a breach or violation of a Suspended Covenant as a result of any actions taken by the Company or any Subsidiary or other events that occurred during any Suspension Period (or upon termination of the Suspension Period or after that time arising out of events that occurred or actions taken during the Suspension Period) and the Company and any Subsidiary will be permitted, without causing a Default or Event of Default or breach of any kind under this Indenture, to honor, comply with or otherwise perform any contractual commitments or obligations entered into during a Suspension Period following a Reversion Date and to consummate the transactions contemplated thereby.
(g) The Company shall provide an Officer’s Certificate to the Trustee indicating the occurrence of any Covenant Suspension Event or Reversion Date. The Trustee will have no obligation to (i) independently determine or verify if such events have occurred, (ii) make any determination regarding the impact of actions taken during the Suspension Period on the Company and its Subsidiaries’ future compliance with their covenants or (iii) notify the Holders of any Covenant Suspension Event or Reversion Date.
SECTION 3.16 Stay, Extension and Usury Laws. The Company and each of the Guarantors covenant (to the extent that they may lawfully do so) that they 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 Company and each of the Guarantors (to the extent that they may lawfully do so) hereby expressly waive all benefit or advantage of any such law, and covenant that they shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.
ARTICLE IV
Merger; Consolidation or Sale of Assets
SECTION 4.1 When the Company or Holdings May Merge or Otherwise Dispose of Assets.
(a) The Company may not consummate a Division as the Dividing Person or consolidate or merge with or into or wind up into (whether or not such Company is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, on a consolidated basis, in one or more related transactions, to any Person unless:
(i) the Company is the surviving Person or the Person formed by or surviving any such consolidation, merger or winding up (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation or limited liability company organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Company or such Person, as the case may be, being herein called the “Successor Company”) and, if such entity is not a corporation, a co-obligor of the Notes is a corporation organized or existing under such laws;
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(ii) the Successor Company (if other than the Company) expressly assumes all the obligations of such Company under this Indenture and the Notes pursuant to supplemental indentures or other documents or instruments;
(iii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction) no Default or Event of Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, either:
(1) the Successor Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Total Debt Ratio test set forth in Section 3.3(a); or
(2) the Consolidated Total Debt Ratio for the Company (or, if applicable, the Successor Company thereto) and its Restricted Subsidiaries would be equal to or less than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(v) each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Notes; and
(vi) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indentures (if any) comply with this Indenture.
The Successor Company will succeed to, and be substituted for, the Company under this Indenture and the Notes, and the Company will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding the foregoing clauses (iii) and (iv), (a) the Company or any Guarantor may consolidate with, merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Company or any Guarantor, (b) the Company may merge or consolidate with an Affiliate of the Company incorporated or organized solely for the purpose of reincorporating or reorganizing the Company in another state of the United States, the District of Columbia or any territory of the United States so long as the principal amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby and (c) any Restricted Subsidiary may merge into the Company.
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(b) Subject to Section 10.2, each Guarantor will not, and the Company will not permit any Guarantor to, consummate a Division as the Person or consolidate or merge with or into or wind up into (whether or not such Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person (other than in connection with the Transactions) unless such Division, consolidation, merger, winding up, sale, assignment, transfer, lease, conveyance or other disposition is made in compliance with Section 3.7 (except pursuant to clause (b) of the definition of “Asset Sale”), or unless:
(A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation, merger or winding up (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (such Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor”);
(B) the Successor Guarantor (if other than such Guarantor) expressly assumes all the obligations of such Guarantor under this Indenture and such Guarantor’s Guarantee pursuant to a supplemental indenture;
(C) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Guarantor or any of its Subsidiaries as a result of such transaction as having been Incurred by the Successor Guarantor or such Subsidiary at the time of such transaction) no Default or Event of Default shall have occurred and be continuing; and
(D) the Successor Guarantor (if other than such Guarantor) shall have delivered or caused to be delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture.
(c) Subject to Article X, the Successor Guarantor will succeed to, and be substituted for, such Guarantor under this Indenture and such Guarantor’s Guarantee, and such Guarantor will automatically be released and discharged from its obligations under this Indenture and such Guarantor’s Guarantee. Notwithstanding the foregoing, (1) a Guarantor may merge or consolidate with an Affiliate of the Company incorporated or organized solely for the purpose of reincorporating or reorganizing such Guarantor in another state of the United States, the District of Columbia or any territory of the United States, so long as the principal amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby, (2) a Guarantor may consolidate or merge with or into or wind up into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and assets to, another Guarantor or the Company, (3) a Guarantor may convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of such Guarantor and (4) any Restricted Subsidiary may merge into any Guarantor, provided that, in the case of this clause (4), that the surviving Person be a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof.
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(d) For purposes of this Section 4.1, the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(e) Notwithstanding clauses (b) through (d) above, any Restricted Subsidiary that is an LLC may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Restricted Subsidiaries at such time, or, with respect to assets not so held by one or more Restricted Subsidiaries, such Division, in the aggregate, would otherwise result in an Asset Sale permitted by Section 3.7 of this Indenture.
ARTICLE V
Redemption of Notes
SECTION 5.1 Applicability of Article. Notes of or within any series that are redeemable in whole or in part before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified for Notes of any series in the applicable Notes Supplemental Indenture, as contemplated by Section 2.4) in accordance with this Article V.
SECTION 5.2 Right of Redemption.
(a) Notes of any series may be redeemed, in whole at any time, or in part from time to time, subject to the conditions and at the Redemption Prices set forth in Paragraph 6 of the applicable Notes Supplemental Indenture, which are hereby incorporated by reference and made a part of this Indenture, together with accrued and unpaid interest to the applicable redemption date.
(b) Notice of any redemption upon any corporate transaction or other event (including any Equity Offering, incurrence of Indebtedness, Change of Control or other transaction) may be given prior to the completion thereof. In connection with any redemption of Notes (including with the net cash proceeds of an Equity Offering), any such redemption may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of a corporate transaction or other event (including consummation of any related Equity Offering). In addition, if such redemption or notice is subject to satisfaction of one or more conditions precedent, such notice shall state that, in the Company’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied (or waived by the Company in its sole discretion), or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied (or waived by the Company in its sole discretion) by the redemption date, or by the redemption date so delayed. In addition, the Company may provide in such notice that payment of the redemption price and performance of the Company’s obligations with respect to such redemption may be performed by another Person.
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SECTION 5.3 Election to Redeem; Notice to Trustee of Optional and Mandatory Redemptions.
(a) If the Company elects to redeem Notes pursuant to Section 5.2, the Company shall furnish to the Trustee, at least 2 Business Days for Global Notes and 10 calendar days for Physical Notes before notice of redemption is required to be mailed or caused to be mailed to Holders pursuant to Section 5.4, an Officer’s Certificate setting forth (i) the paragraph or subparagraph of such Note and/or Section of this Indenture pursuant to which the redemption shall occur, (ii) the Redemption Date, (iii) the principal amount of the Notes to be redeemed and (iv) the Redemption Price. The Company may also include a request in such Officer’s Certificate that the Trustee give the notice of redemption in the Company’s name and at its expense and setting forth the information to be stated in such notice as provided in Section 5.4. The Company shall deliver to the Trustee such documentation and records as shall enable the Trustee to select the Notes to be redeemed pursuant to this Section 5.3.
(b) Unless otherwise specified for Notes of any series in the applicable Notes Supplemental Indenture, as contemplated by Section 2.4, if less than all of the Notes are to be redeemed at any time, the Trustee shall select Notes for redemption in compliance with the requirements of DTC, or, if the Notes are not held through DTC, or DTC prescribes no method of selection, on a pro rata basis or by lot (and in such manner as complies with applicable legal requirements) in integral multiples of $1,000; provided, that the selection of Notes for redemption shall not result in a Holder with a principal amount of Notes less than the Minimum Denomination. If any Note is to be purchased or redeemed in part only, the notice of purchase or redemption relating to such Note shall state the portion of the principal amount thereof that has been or is to be purchased or redeemed. A new Note in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Note. On and after the applicable redemption date, interest will cease to accrue on Notes or portions thereof called for redemption so long as the Company has deposited with the Paying Agent funds sufficient to pay the principal of and premium, if any, plus accrued and unpaid interest to, but not including, the applicable redemption date, if any, on the Notes to be redeemed.
(c) The Trustee shall promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Notes selected for partial redemption, the principal amount thereof to be redeemed.
(d) For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to redemption of Notes shall relate, in the case of any Note redeemed or to be redeemed only in part, to the portion of the principal amount of such Note which has been or is to be redeemed.
SECTION 5.4 Notice of Redemption. Unless otherwise specified for Notes of any series in the applicable Notes Supplemental Indenture, as contemplated by Section 2.4, the Company shall mail or cause to be mailed by first class mail to each Holder’s registered address or otherwise in accordance with the procedures of DTC, a notice of redemption to each Holder whose Notes are to be redeemed not less than 15 nor more than 60 days prior to a date fixed for redemption (a “Redemption Date”). At the Company’s written request, the Trustee may give notice of redemption in the Company’s name and at the Company’s expense; provided, however, that redemption notices may be mailed more than 60 days prior to a Redemption Date, but not more than a year, prior to such event, if the notice is issued in connection with Article VIII.
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All notices of redemption shall be prepared by the Company and shall state: (a)the Redemption Date,
(a) the Redemption Price and the amount of accrued interest to, but excluding, the Redemption Date payable as provided in Section 5.6, if any,
(b) if less than all outstanding Notes are to be redeemed, the identification of the particular Notes (or portion thereof) to be redeemed, as well as the aggregate principal amount of Notes to be redeemed and the aggregate principal amount of Notes to be outstanding after such partial redemption,
(c) in case any Note is to be redeemed in part only, the notice which relates to such Note shall state that on and after the Redemption Date, upon surrender of such Note, the Holder shall receive, without charge, a new Note or Notes of authorized denominations for the principal amount thereof remaining unredeemed,
(d) that on the Redemption Date the Redemption Price (and accrued interest to, but excluding, the Redemption Date payable as provided in Section 5.6, if any) shall become due and payable upon each such Note, or the portion thereof, to be redeemed, and, unless the Company defaults in making the redemption payment, that interest on Notes called for redemption (or the portion thereof) shall cease to accrue on and after said date,
(e) the place or places where such Notes are to be surrendered for payment of the Redemption Price and accrued interest, if any,
(f) the name and address of the Paying Agent,
(g) that Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price,
(h) the CUSIP number, and that no representation is made as to the accuracy or correctness of the CUSIP number, if any, listed in such notice or printed on the Notes, and
(i) the Section of this Indenture pursuant to which the Notes are to be redeemed.
SECTION 5.5 Deposit of Redemption Price. Prior to 10:00 a.m. New York City time, on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 2.18) an amount of money sufficient to pay the Redemption Price of, and accrued interest on, all the Notes which are to be redeemed on that date.
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SECTION 5.6 Notes Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Notes so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified (together with accrued interest, if any, to, but excluding, the Redemption Date), and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest, if any, to, but excluding, the Redemption Date) such Notes shall cease to bear interest. Upon surrender of any such Note for redemption in accordance with said notice, such Note shall be paid by the Company at the Redemption Price, together with accrued interest, if any, to, but excluding, the Redemption Date (subject to the rights of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date).
If any Note called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate borne by the Notes.
If a Redemption Date is on or after a Regular Record Date and on or before the related Interest Payment Date, the accrued and unpaid interest, if any, shall be paid to the Person in whose name the Note is registered at the close of business on such Regular Record Date, and no further interest shall be payable to Holders whose Notes shall be subject to redemption by the Company.
SECTION 5.7 Notes Redeemed in Part. Any Note which is to be redeemed only in part (pursuant to the provisions of this Article V) shall be surrendered at the office or agency of the Company maintained for such purpose pursuant to Section 2.8 (with, if the Company so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Company duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note at the expense of the Company, a new Note or Notes, of any authorized denomination as requested by such Holder, in an aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Note so surrendered, provided that each such new Note shall be in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess thereof.
SECTION 5.8 Offer to Repurchase. In the event that, pursuant to Section 3.7, the Company is required to commence an offer to all Holders to purchase the Notes (an “Offer to Repurchase”), it shall follow the procedures specified below.
(a) The Offer to Repurchase shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than five Business Days after the termination of the Offer Period (the “Purchase Date”), the Company shall apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such Pari Passu Indebtedness, if any, (in each instance, on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Offer to Repurchase. Payment for any Notes so purchased shall be made pursuant to Section 3.1.
(b) If the Purchase Date is on or after an Regular Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest, if any, shall be paid to the Person in whose name a Note is registered at the close of business on such Regular Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Offer to Repurchase.
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(c) Upon the commencement of an Offer to Repurchase, the Company shall send, by first class mail, a notice to the Trustee and each of the Holders. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Offer to Repurchase. The notice, which shall govern the terms of the Offer to Repurchase, shall state:
(i) that the Offer to Repurchase is being made pursuant to this Section 5.8 and Section 3.7, and the length of time the Offer to Repurchase shall remain open;
(ii) the Offer Amount, the purchase price and the Purchase Date;
(iii) that any Note not tendered or accepted for payment shall continue to accrue interest;
(iv) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Offer to Repurchase shall cease to accrue interest after the Purchase Date;
(v) that Holders electing to have a Note purchased pursuant to an Offer to Repurchase may elect to have Notes purchased in a minimum amount of $2,000 or an integral multiple of $1,000 in excess thereof only;
(vi) that Holders electing to have Notes purchased pursuant to any Offer to Repurchase shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(vii) that Holders shall be entitled to withdraw their election if the Company or the Paying Agent, as the case may be, receives, not later than on the expiration of the Offer Period, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Notes purchased;
(viii) that, if the aggregate principal amount of Notes and, if applicable, Pari Passu Indebtedness, if any, surrendered by Holders thereof exceeds the Offer Amount, the Trustee shall select the Notes and, if applicable, the Company shall select such Pari Passu Indebtedness to be purchased or prepaid, on a pro rata basis based on the principal amount of Notes and Pari Passu Indebtedness, if any, surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in the Minimum Denomination, or integral multiples of $1,000 in excess thereof, shall be purchased); and
(ix) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).
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(d) On or before the Purchase Date, the Company shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Offer to Repurchase, or if less than the Offer Amount has been tendered, all Notes tendered, and the Company shall deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 5.8. The Company or the Paying Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) pay to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase. With respect to any Note purchased in part, the Company shall promptly issue a new Note, and the Trustee shall authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly returned to the Holder thereof. The Company shall publicly announce the results of the Offer to Repurchase on the Purchase Date.
ARTICLE VI
Defaults and Remedies
SECTION 6.1 Events of Default. Each of the following is an “Event of Default”:
(i) a default in any payment of interest on any Note when due continued for 30 days;
(ii) a default in the payment of principal or premium, if any, of any Note when due at its Stated Maturity, upon optional redemption, upon required purchase, upon acceleration or otherwise;
(iii) the failure by the Company or any of its Restricted Subsidiaries to comply for 60 days after written notice with any of its obligations, covenants or agreements (other than a default pursuant to clause (i) or clause (ii) above) contained in the Notes or this Indenture;
(iv) the failure by the Company or any Restricted Subsidiary to pay any Indebtedness for borrowed money (other than Indebtedness owing to the Company or a Restricted Subsidiary of the Company) within any applicable grace period after final maturity or the acceleration of any such Indebtedness by the holders thereof because of a default, in each case, if the total amount of such Indebtedness unpaid or accelerated exceeds $45.0 million or its foreign currency equivalent;
(v) the Company or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(1) commences a voluntary case;
(2) consents to the entry of an order for relief against it in any voluntary case;
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(3) consents to the appointment of a Custodian of it or for any substantial part of its property; or
(4) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to insolvency;
(vi) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(1) is for relief against the Company or any Significant Subsidiary in an involuntary case;
(2) appoints a Custodian of the Company or any Significant Subsidiary or for any substantial part of its property; or
(3) orders the winding up or liquidation of the Company or any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order or decree remains unstayed and in effect for 60 days;
(vii) failure by the Company or any Significant Subsidiary to pay final and non-appealable judgments aggregating in excess of $45.0 million or its foreign currency equivalent (net of any amounts which are covered by enforceable insurance policies issued by solvent insurance companies), which judgments are not discharged, waived or stayed for a period of 60 days and, in the event such judgment is covered by insurance, an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly stayed; or
(viii) the Guarantee of a Significant Subsidiary ceases to be in full force and effect (except as contemplated by the terms thereof or of this Indenture), or any Guarantor that is a Significant Subsidiary denies in writing that it has any further liability under its Guarantee or gives written notice to such effect, other than by reason of the termination or discharge of this Indenture or the release of any such Guarantee in accordance with this Indenture, and such Default continues for 10 days.
The foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.
However, a default under clause (iii) of this Section 6.1 will not constitute an Event of Default until the Trustee or the Holders of at least 30.0% in principal amount of outstanding Notes notify the Company of the default and the Company does not cure such default within the time specified in clause (iii) of this Section 6.1 after receipt of such notice.
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SECTION 6.2 Acceleration. If an Event of Default (other than an Event of Default specified in clause (v) or (vi) of Section 6.1 with respect to the Company) occurs and is continuing, unless otherwise specified for Notes of any series in the applicable Notes Supplemental Indenture, as contemplated by Section 2.4, the Trustee or the Holders of at least 30.0% in principal amount of outstanding Notes by written notice to the Company (and the Trustee if given by the Holders) may declare the principal of, premium, if any, and accrued but unpaid interest on all the Notes to be due and payable. Upon such a declaration, such principal and interest will be due and payable immediately. If an Event of Default arising from Section 6.1(v) or (vi), with respect to the Company, occurs and is continuing, unless otherwise specified for Notes of any series in the applicable Notes Supplemental Indenture, as contemplated by Section 2.4, the principal of, premium, if any, and interest on all the Notes will become immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.
SECTION 6.3 Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of or interest on the Notes or to enforce the performance of any provision of the Notes, this Indenture (including sums owed to the Trustee and its agents and counsel) and the Guarantees.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.4 Waiver of Past Defaults. The Holders of a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may, on behalf of the Holders of all of the Notes, waive, rescind or cancel any declaration of an existing or past Default or Event of Default and its consequences under this Indenture if such waiver, rescission or cancellation would not conflict with any judgment or decree, except a continuing Default or Event of Default in the payment of interest on, or the principal of, the Notes (other than such nonpayment of principal or interest that has become due as a result of such acceleration). Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
In the event of any Event of Default arising from Section 6.1(iv), such Event of Default and all consequences thereof (excluding, however, any resulting payment default) will be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders of the Notes, if prior to 20 days after such Event of Default arose, the Company delivers an Officer’s Certificate to the Trustee stating that (x) the Indebtedness or guarantee that is the basis for such Event of Default has been discharged or (y) the holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default or (z) the default that is the basis for such Event of Default has been cured.
SECTION 6.5 Control by Majority. The Holders of a majority in principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. 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 Holders (provided, however, that the Trustee shall have no responsibility to determine whether any action or inaction is unduly prejudicial) or that would involve the Trustee in personal liability unless such Holders have offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense. Prior to taking any action under this Indenture, the Trustee shall be entitled to security or indemnification satisfactory to it in its sole discretion against all losses, liabilities and expenses that may be caused by taking or not taking such action.
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SECTION 6.6 Limitation on Suits. In case 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 or security satisfactory to it against any loss, liability or expense. Except to enforce the right to receive payment of principal, premium (if any) or interest, when due, no Holder may pursue any remedy with respect to this Indenture or the Notes unless:
(i) such Holder has previously given the Trustee written notice that an Event of Default is continuing;
(ii) Holders of at least 30.0% of the aggregate principal amount of the outstanding Notes have requested in writing the Trustee to pursue the remedy;
(iii) such Holders have offered the Trustee security or indemnity reasonably satisfactory to it in any loss, liability or expense;
(iv) the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity; and
(v) the Holders of a majority in principal amount of the outstanding Notes have not given the Trustee a written direction inconsistent with such request within such 60-day period.
SECTION 6.7 Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal of, premium, if any, or interest on the Notes held by such Holder, on or after the respective due dates expressed in the Notes, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.8 Collection Suit by Trustee. If an Event of Default specified in Section 6.1(i) or (ii) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount then due and owing (together with interest on any unpaid interest to the extent lawful) and the amounts provided for in Section 7.6.
SECTION 6.9 Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relative to the Company, its Subsidiaries or their respective creditors or properties and, unless prohibited by law or applicable regulations, may vote on behalf of the Holders (pursuant to the written direction of Holders of a majority in principal amount of the then outstanding Notes) in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee under Section 7.6. 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 or reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in such proceeding.
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SECTION 6.10 Priorities. The Trustee shall pay out any money or property received by it in the following order:
First: to the Trustee and any of its agents for amounts due under Section 7.6;
Second: to Holders for amounts due and unpaid on the Notes for principal, premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively; and
Third: to the Company or, to the extent the Trustee receives any amount for any Guarantor, to such Guarantor 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 Company (or the Trustee) shall mail to each Holder and the Trustee a notice that states the record date, the payment date and amount to be paid.
SECTION 6.11 Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than 10.0% in outstanding principal amount of the Notes.
ARTICLE VII
Trustee
SECTION 7.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs; provided that if an Event of Default occurs and is continuing, the Trustee shall not be under any obligation to exercise any of the rights or powers under this Indenture, the Notes and the Guarantees at the request or direction of any of the Holders unless such Holders have offered the Trustee indemnity, security or prefunding satisfactory to the Trustee in its sole discretion against any loss, liability or expense it may incur.
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(b) Except during the continuance of an Event of Default of which a Trust Officer has actual knowledge, the Trustee:
(i) undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of gross negligence or willful misconduct on its part, may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee under this Indenture, the Notes and the Guarantees, as applicable. However, in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such certificates and opinions to determine whether or not they conform to the requirements of this Indenture, the Notes and the Guarantees as the case may be (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee shall not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(i) this Section 7.1(c) does not limit the effect of Section 7.1(b);
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, employee or agent unless it is proved in a final non-appealable decision of a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5.
(d) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.
(e) Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(f) No provision of this Indenture, the Notes or the Guarantees shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it.
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(g) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 7.1.
(h) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee, security, prefunding or indemnity satisfactory to it, in its sole discretion, against the costs, expenses (including attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction.
SECTION 7.2 Rights of Trustee.
(a) The Trustee may conclusively rely and shall be protected in acting upon any resolution, certificate, statement, instrument, opinion, notice, request, direction, consent, order, bond or any other paper or document believed by it to be genuine and to have been signed or presented by the proper Person or Persons. The Trustee need not investigate any fact or matter stated in such document.
(b) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys, custodians, nominees and agents and shall not be responsible for the acts or omissions of or for the supervision of any agent, custodians, nominees or attorney appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers, provided, that such conduct does not constitute willful misconduct or gross negligence as determined in a final non-appealable decision of a court of competent jurisdiction.
(e) The Trustee may consult with counsel of its selection, and the advice or Opinion of Counsel with respect to legal matters relating to this Indenture, the Notes and the Guarantees shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder or under the Notes and the Guarantees in good faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall not be bound to make any investigation into any statement, warranty or representation, or the facts or matters stated in any resolution, certificate, statement, instrument, opinion, notice, request, direction, consent, order, bond or other paper or document made or in connection with this Indenture; moreover, the Trustee shall not be bound to make any investigation into (i) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (ii) the occurrence of any default, or the validity, enforceability, effectiveness or genuineness of this Indenture or any other agreement, instrument or document, or (iii) the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
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(g) Neither the Trustee nor any of its directors, officers, employees, agents or affiliates shall be responsible for nor have any duty to monitor the performance or any action of the Company, or any of their directors, members, officers, agents, affiliates or employee, nor shall it have any liability in connection with the malfeasance or nonfeasance by such party.
(h) The Trustee shall not be deemed to have knowledge of any Default or Event of Default except any Default or Event of Default of which a Trust Officer shall have (x) received written notification from the Company or a Holder at the Corporate Trust Office of the Trustee and such notice references the Notes and this Indenture or (y) obtained “actual knowledge.” “Actual knowledge” shall mean the actual fact or statement of knowing by a Trust Officer without independent investigation with respect thereto.
(i) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(j) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
(k) The Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.
(l) The Trustee shall not have any duty (A) to see to any recording, filing, or depositing of this Indenture or any agreement referred to herein, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, re-filing or redepositing of any thereof or (B) to see to any insurance.
(m) The permissive rights of the Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty, and with respect to such permissive rights, the Trustee shall not be answerable for other than its gross negligence or willful misconduct.
SECTION 7.3 Individual Rights of Trustee.
(a) Subject to the TIA (if this Indenture is then qualified under the TIA) each of the Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company, the Guarantors or their Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent, Note Registrar, co-registrar or co-Paying Agent may do the same with like rights. However, the Trustee must comply with Section 7.9.
(b) In addition, the Trustee shall be permitted to engage in transactions with the Company; provided, however, that if the Trustee acquires any conflicting interest the Trustee must (i) eliminate such conflict within 90 days of acquiring such conflicting interest, (ii) apply to the SEC for permission to continue acting as Trustee or (iii) resign.
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(c) (i) Prior to the qualification of this Indenture under the TIA, to the extent permitted by applicable law and (ii) following the qualification of this Indenture under the TIA, to the extent permitted by the TIA, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Initial Notes and Additional Notes, or a trustee under any other indenture between the Company and the Trustee.
SECTION 7.4 Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture, the Notes or the Guarantees, it shall not be accountable for the Company’s use of the Notes or the proceeds from the Notes, and it shall not be responsible for any statement of the Company in this Indenture or in any document issued in connection with the sale of the Notes or in the Notes other than the Trustee’s certificate of authentication or for the use or application of any funds received by any Paying Agent other than the Trustee.
SECTION 7.5 Notice of Defaults. If a Default occurs and is continuing and is actually known to a Trust Officer of the Trustee, the Trustee shall mail to each Holder notice of the Default within 90 days after it is actually known to a Trust Officer of the Trustee. Except in the case of a Default in the payment of principal of, 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 of the Notes.
SECTION 7.6 Compensation and Indemnity. The Company shall pay to the Trustee from time to time such compensation for their services as the parties shall agree in writing from time to time. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred or made by it, including, but not limited to, costs of collection, costs of preparing and reviewing reports, certificates and other documents, costs of preparation and mailing of notices to Holders and reasonable costs of counsel, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Trustee’s agents, counsel, accountants and experts. The Company shall indemnify the Trustee or any predecessor Trustee in each of its capacities hereunder (including Paying Agent and Note Registrar), and each of their officers, directors, employees, counsel and agents, against any and all loss, liability or expense (including, but not limited to, attorneys’ fees and expenses) incurred by it in connection with the administration of this trust and the performance of their duties hereunder and under the Notes and the Guarantees, including the costs and expenses of enforcing this Indenture (including this Section 7.6), the Notes and the Guarantees and of defending itself against any claims (whether asserted by any Holder, the Company or otherwise). The Trustee shall notify the Company promptly of any claim for which it may seek indemnity, provided that failure by the Trustee to so notify the Company shall not relieve the Company of their obligations hereunder. The Company shall defend such claim and the Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee as a direct cause of its own willful misconduct or gross negligence, as determined in a final non-appealable decision of a court of competent jurisdiction.
To secure the Company’s payment obligations in this Section 7.6, the Trustee shall have a lien prior to the Notes on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of and interest on particular Notes. The right of the Trustee to receive payment of any amounts due under this Section 7.6 shall not be subordinate to any other liability or indebtedness of the Company.
The Company’s obligations pursuant to this Section 7.6 and any lien arising hereunder shall survive the satisfaction and discharge of this Indenture and the resignation or removal of the Trustee. When the Trustee incurs expenses after the occurrence of a Default specified in Section 6.1(v) or (vi) with respect to the Company, the expenses are intended to constitute expenses of administration under any Bankruptcy Law.
Pursuant to Section 10.1, the obligations of the Company hereunder are jointly and severally guaranteed by the Guarantors.
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SECTION 7.7 Replacement of Trustee. The Trustee may resign at any time by so notifying the Company in writing. The Holders of a majority in principal amount of the Notes may remove the Trustee by so notifying the Company and the Trustee in writing and may appoint a successor Trustee. The Company shall remove the Trustee if:
(i) the Trustee fails to comply with Section 7.9;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed by the Company or by the Holders of a majority in principal amount of the Notes and such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the “retiring Trustee”), the Company shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.6. All costs reasonably incurred in connection with any such resignation or removal hereunder shall be borne by the Company.
If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of at least 10.0% in principal amount of the Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.9, unless the Trustee’s duty to resign is stayed, any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.7, the Company’s obligations under Section 7.6 shall continue for the benefit of the retiring Trustee.
SECTION 7.8 Successor Trustee by Merger. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall have.
SECTION 7.9 Eligibility; Disqualification. The Trustee shall have a combined capital and surplus of at least $50 million as set forth in its most recent filed annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements of TIA § § 310(a)(1), (2) and (5). The Trustee is subject to TIA § 310(b).
SECTION 7.10 Limitation on Duty of Trustee. The Trustee shall not have any duty to ascertain or inquire as to the performance or observance of any of the terms of this Indenture, the Notes and the Guarantees by the Company, the Guarantors or any other Person.
SECTION 7.11 Preferential Collection of Claims Against the Company. Following the qualification of this Indenture under the TIA, (i) the Trustee shall be subject to TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b), and (ii) a Trustee who has resigned or been removed shall be subject to TIA § 311(a ) to the extent indicated therein.
SECTION 7.12 Reports by Trustee to Holders of the Notes. Within 60 days after each October 1, beginning with October 1, 2026, the Trustee shall mail to the Holders a brief report dated as of such reporting date that complies with TIA § 313(a) (but if no event described in TIA § 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also shall comply with TIA § 313(b), and the Trustee shall transmit by mail all reports as required by TIA § 313(c).
The Company shall promptly notify the Trustee in writing when any Notes are listed on any stock exchange and of any delisting thereof.
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ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.1 Discharge of Liability on Securities; Defeasance. This Indenture will be discharged and will cease to be of further effect (except as to surviving rights of registration or transfer or exchange of Notes, as expressly provided for in this Indenture) as to all outstanding Notes when:
(a) either (i) all the Notes theretofore authenticated and delivered (other than Notes pursuant to Section 2.9 which have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust) have been delivered to the Trustee for cancellation or (ii) all of the Notes not previously delivered to the Trustee for cancellation (a) have become due and payable, (b) will become due and payable at their Stated Maturity within one year or (c) have been called for redemption or will be called for redemption within one year and the Company or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee money or U.S. Government Obligations in an amount sufficient to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of deposit together with irrevocable instructions from the Company directing the Trustee to apply such funds to the payment thereof at maturity or redemption, as the case may be;
(b) the Company and/or the Guarantors have paid all other sums payable under this Indenture; and
(c) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with.
Subject to Sections 8.1(c) and 8.2, the Company at any time may terminate (i) all of the Company’s obligations under the Notes and this Indenture and have each Guarantor’s obligation discharged with respect to its Guarantee and cure any then-existing Events of Default (“legal defeasance option”) or (ii) its obligations under Sections 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9 and 3.10 and the operation of Section 4.1 (other than Sections 4.1(a)(i), (ii) and (vi)) and Sections 6.1(iii) (with respect to any Default under Sections 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9 and 3.10), 6.1(iv), 6.1(v) (with respect to Significant Subsidiaries of the Company only), 6.1(vi) (with respect to Significant Subsidiaries of the Company only), 6.1(vii) and 6.1(viii) (“covenant defeasance option”). The Company may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option. In the event that the Company terminates all of their obligations under the Notes and this Indenture (with respect to such Notes) by exercising its legal defeasance option or its covenant defeasance option, the obligations of each Guarantor under its Guarantee of such Notes shall be terminated simultaneously with the termination of such obligations.
If the Company exercises its legal defeasance option, payment of the Notes so defeased may not be accelerated because of an Event of Default with respect thereto. If the Company exercises its covenant defeasance option, payment of the Notes so defeased may not be accelerated because of an Event of Default specified in Section 6.1(iii) (with respect to any Default by the Company or any of its Restricted Subsidiaries with any of its obligations under Article III other than Section 3.1), 6.1(iv), 6.1(v) (with respect to Significant Subsidiaries of the Company only), 6.1(vi) (with respect to Significant Subsidiaries of the Company only), 6.1(vii) or 6.1(viii).
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Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(d) Notwithstanding clauses (a) and (b) above, the Company’s obligations in Sections 2.8, 2.9, 2.15, 2.16, 2.18, 2.19, 7.6, 7.7 and in this Article VIII shall survive until the Notes have been paid in full. Thereafter, the Company’s obligations in Sections 7.6, 8.5 and 8.6 shall survive such satisfaction and discharge.
SECTION 8.2 Conditions to Defeasance.
(a) The Company may exercise its legal defeasance option or its covenant defeasance option only if:
(i) the Company irrevocably deposit in trust with the Trustee money or U.S. Government Obligations for the payment of principal, premium (if any) and interest on the applicable issue of Notes to redemption or maturity, as the case may be (provided that if such redemption is pursuant to Section 6(b) of the applicable Notes Supplemental Indenture, (x) the amount of money or U.S. Government Obligations that the Company must irrevocably deposit or cause to be deposited shall be determined using an assumed Applicable Premium calculated as of the date of such deposit, as calculated by the Company in good faith, and (y) the Company must irrevocably deposit or cause to be deposited additional money in trust on the Redemption Date, as required by Section 5.5, as necessary to pay the Applicable Premium as determined on such date);
(ii) the Company delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment shall provide cash at such times and in such amounts as shall be sufficient to pay principal, premium, if any, and interest when due on all the Notes to maturity or redemption, as the case may be;
(iii) 91 days pass after the deposit is made and during the 91-day period no Default specified in Section 6.1(v) or (vi) with respect to the Company occurs which is continuing at the end of the period;
(iv) the deposit does not constitute a default under any other agreement binding on the Company;
(v) the Company delivers to the Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment advisor under the Investment Issuer Act of 1940;
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(vi) in the case of the legal defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (2) since the date of this Indenture there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the beneficial owners of the Notes shall not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and defeasance and shall be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(vii) in the case of the covenant defeasance option, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of the Notes shall not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and defeasance and shall be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred; and
(viii) the Company delivers to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Notes to be so defeased and discharged as contemplated by this Article VIII have been complied with.
Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of such Notes at a future date in accordance with Article V.
SECTION 8.3 Application of Trust Money. The Trustee shall hold in trust money or U.S. Government Obligations deposited with it pursuant to this Article VIII. It shall apply the deposited money and the money from U.S. Government Obligations through the Paying Agent and in accordance with this Indenture to the payment of principal of and interest on the Notes.
SECTION 8.4 Repayment to Company. Anything herein to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Order any money or U.S. Government Obligations held by it as provided in this Article VIII which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect legal defeasance or covenant defeasance, as applicable, provided that the Trustee shall not be required to liquidate any U.S. Government Obligations in order to comply with the provisions of this Section 8.4.
Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Company any money held by them for the payment of principal of or interest on the Notes that remains unclaimed for two years, and, thereafter, Holders entitled to the money must look to the Company for payment as general creditors.
SECTION 8.5 Indemnity for U.S. Government Obligations. The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or the principal and interest received on such U.S. Government Obligations.
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SECTION 8.6 Reinstatement. If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with this Article VIII 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 obligations of the Company and each Guarantor under this Indenture, the Notes and the Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to this Article VIII until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with this Article VIII; provided, however, that, if the Company or any of the Guarantors has made any payment of interest on or principal of any Notes because of the reinstatement of its obligations, the Company or any Guarantor, as the case may be, shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
Amendments
SECTION 9.1 Without Consent of Holders. Notwithstanding Section 9.2 hereof, this Indenture, the Notes and Guarantees may be amended or supplemented by the Company, any Guarantor (with respect to a Guarantee or this Indenture to which it is a party) and the Trustee without notice to or consent of any Holder:
(i) to cure any ambiguity, omission, mistake, defect or inconsistency;
(ii) to conform the text of this Indenture (including any supplemental indenture or other instrument pursuant to which Additional Notes are issued), the Guarantees or the Notes (including any Additional Notes) to the “Description of the New Notes” in the Offering Memorandum or, with respect to any Additional Notes and any supplemental indenture or other instrument pursuant to which such Additional Notes are issued, to such “Description of the New Notes” relating to the issuance of such Additional Notes solely to the extent that such “Description of the New Notes” provides for terms of such Additional Notes that differ from the terms of the initial Notes;
(iii) to comply with Section 4.1;
(iv) to provide for the assumption by a successor Person of the obligations of the Company or any Guarantor under this Indenture and the Notes or Guarantee, as the case may be;
(v) to provide for uncertificated Notes in addition to or in place of certificated Notes; provided that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code, or in a manner such that the uncertificated Notes are described in Section 163(f)(2)(B) of the Code;
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(vi) to add or release Guarantees in accordance with the terms of this Indenture with respect to the Notes;
(vii) to secure the Notes;
(viii) to add to the covenants of the Company for the benefit of the Holders or to surrender any right or power herein conferred upon the Company or any Guarantor;
(ix) to make any change that does not adversely affect the rights of any Holder in any material respect;
(x) to comply with any requirement of the SEC in connection with the qualification of this Indenture under the TIA;
(xi) to make any amendment to the provisions of this Indenture relating to the transfer and legending of Notes as permitted by this Indenture, including, without limitation, to facilitate the issuance and administration of the Notes; provided, however, that (i) compliance with this Indenture as so amended would not result in Notes being transferred in violation of the Securities Act or any applicable securities law and (ii) such amendment does not materially and adversely affect the rights of Holders to transfer Notes;
(xii) to evidence and provide for the acceptance of appointment by a successor Trustee; provided that the successor Trustee is otherwise qualified and eligible to act as such under the terms of this Indenture; or
(xiii) to provide for or confirm the issuance of Initial Notes, Additional Notes or Exchange Notes.
SECTION 9.2 With Consent of Holders.
(a) This Indenture, the Notes and the Guarantees may be amended or supplemented by the Company, any Guarantor (with respect to a Guarantee or this Indenture to which it is a party) and the Trustee with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes) and any existing or past Default or compliance with any provisions of such documents may be waived with the consent of the Holders of a majority in principal amount of the Notes then outstanding other than the Notes beneficially owned by the Company or its Affiliates (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes); provided that (x) if any such amendment or waiver will only affect one series of Notes (or less than all series of Notes) then outstanding under this Indenture, then only the consent of the Holders of a majority in principal amount of the Notes of such series then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes) shall be required, and (y) if any such amendment or waiver by its terms will affect a series of Notes in a manner different and materially adverse relative to the manner such amendment or waiver affects other series of Notes, then the consent of the Holders of a majority in principal amount of the Notes of such series then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes) shall be required.
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(b) Notwithstanding the provisions in clause (a) above, without the consent of each Holder of an outstanding Note affected, no amendment may (with respect to any Notes held by a non-consenting Holder):
(i) reduce the percentage of the aggregate principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;
(ii) reduce the rate of or extend the time for payment of interest on any Note; (iii)reduce the principal of or change the Stated Maturity of any Note;
(iii) waive a Default in the payment of principal of or premium, if any, or interest on the Notes, except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the Notes and a waiver of the payment default that resulted from such acceleration,
(iv) reduce the premium payable upon the redemption of any Note or change the time at which any Note may be redeemed as described in Section 6 of the applicable Notes Supplemental Indenture;
(v) make any Note payable in money other than that stated in such Note;
(vi) amend the contractual right of any Holder expressly set forth in this Indenture and the Notes to institute suit for the enforcement of any payment of principal, premium, if any, and interest on such Holder’s Notes on or after the due dates therefor; or
(vii) make any change in the amendment or waiver provisions of this Indenture that require each Holder’s consent, as described in clauses (i) through (vii) above.
(c) It shall not be necessary for the consent of the Holders under this Section 9.2 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent approves the substance thereof.
(d) After an amendment under this Section 9.2 becomes effective, the Company shall (or shall cause the Trustee, at the written request of the Company and at the expense of the Company, to) mail to the Holders of Notes affected thereby a notice briefly describing such amendment. The failure of the Company to mail such notice, or any defect therein, shall not in any way impair or affect the validity of an amendment under this Section 9.2.
SECTION 9.3 Effect of Consents and Waivers. A consent to an amendment or a waiver by a Holder of a Note shall bind the Holder and every subsequent Holder of that Note or portion of the Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent or waiver is not made on the Note. After an amendment or waiver becomes effective, it shall bind every Holder unless it makes a change described in clauses (i) through (vii) of Section 9.2(b), in which case the amendment or waiver or other action shall bind each Holder who has consented to it and every subsequent Holder that evidences the same debt as the consenting Holder’s Notes. An amendment or waiver made pursuant to Section 9.2 shall become effective upon receipt by the Trustee of the requisite number of written consents.
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The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to take any such action, whether or not such Persons continue to be Holders after such record date.
SECTION 9.4 Notation on or Exchange of Notes. If an amendment changes the terms of a Note, the Trustee may require the Holder of such Note to deliver it to the Trustee. The Trustee may place an appropriate notation on the Note regarding the changed terms and return it to the Holder. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms. Failure to make the appropriate notation or to issue a new Note shall not affect the validity of such amendment.
SECTION 9.5 Trustee To Sign Amendments. The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article IX if the amendment, supplement or waiver does not, in the sole determination of the Trustee, adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign it. In signing any amendment, supplement or waiver pursuant to this Article IX, the Trustee shall be entitled to receive, and (subject to Sections 7.1 and 7.2) shall be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel stating that such amendment, supplement or waiver is authorized or permitted by or complies with this Indenture, that all conditions precedent to such amendment required by this Indenture have been complied with and that such amendment, supplement or waiver is the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to customary exceptions. Notwithstanding the foregoing, no Opinion of Counsel will be required for the Trustee to execute any amendment or supplement adding a new Guarantor under this Indenture. For the avoidance of doubt, no Officer’s Certificate shall be required for the execution of any Notes Supplemental Indenture, supplemental indenture pursuant to Section 4.1(a)(ii) or Guarantor Supplemental Indenture on the Issue Date. The Opinion of Counsel required in connection with the Notes Supplemental Indenture entered into on the Issue Date shall only be required to state that such Notes Supplemental Indenture is the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to customary exceptions.
ARTICLE X
Guarantees
SECTION 10.1 Guarantees.
(a) Subject to the provisions of this Article X, each Guarantor hereby jointly and severally, irrevocably, fully and unconditionally guarantees, as guarantor and not as a surety, with each other Guarantor, to each Holder of the Notes, to the extent lawful, and the Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes and all other Obligations of the Company under this Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company, or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.
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(b) Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and protest to the Company of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations.
(c) Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
(d) Except as set forth in Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Company; (g) any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
(e) Each Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Guarantee in compliance with Section 4.1, Section 10.2 and Article VIII. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
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(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
(g) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
(h) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.1.
(i) Neither the Company nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee.
SECTION 10.2 Limitation on Liability; Termination, Release and Discharge.
(a) Any term or provision of this Indenture to the contrary notwithstanding, the obligations of each Guarantor hereunder shall be limited to the maximum amount as shall, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee or pursuant to its contribution obligations under this Indenture, result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law and not otherwise being void or voidable under any similar laws affecting the rights of creditors generally.
(b) A Guarantee by a Guarantor shall be automatically and unconditionally released and discharged, and each Guarantor and its obligations under the Guarantee and this Indenture shall be released and discharged upon:
(1) in the case of a Subsidiary Guarantor, the sale, exchange, disposition or other transfer (including through merger or consolidation) of (x) the Capital Stock of such Subsidiary Guarantor, after which the applicable Subsidiary Guarantor is no longer a Restricted Subsidiary, or (y) all or substantially all the assets of such Subsidiary Guarantor if such sale, exchange, disposition or other transfer is made in compliance with this Indenture;
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(2) the Company designating such Subsidiary Guarantor to be an Unrestricted Subsidiary in accordance with the provisions set forth in Section 3.4, Section 3.14 and the definition of “Unrestricted Subsidiary”;
(3) in the case of any Restricted Subsidiary that is required to guarantee the Notes pursuant to Section 3.10, the release or discharge of the guarantee by such Restricted Subsidiary of Indebtedness or the repayment of the Indebtedness, in each case, which resulted in the obligation to guarantee the Notes, except if a release or discharge is by or as a result of payment by such Guarantor under such other guarantee;
(4) the Company’s exercise of its legal defeasance option or covenant defeasance option as described under Article VIII or if its obligations under this Indenture are discharged in accordance with the terms of this Indenture; or
(5) upon the release or discharge of the guarantee by such Guarantor of the obligations under the Senior Credit Agreement, except a discharge or release by or as a result of payment by such Guarantor under such guarantee.
(c) If any Subsidiary Guarantor is released from its Guarantee, any of its Subsidiaries that are Guarantors shall be released from their Guarantees, if any.
(d) In the case of Section 10.2(b), the Company shall deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(e) The release of a Guarantor from its Guarantee and its obligations under this Indenture in accordance with the provisions of this Section 10.2 shall not preclude the future applications of Section 3.10 to such Person.
SECTION 10.3 Right of Contribution. Each Guarantor hereby agrees that to the extent that any such Guarantor shall have paid more than its proportionate share of any payment made on the obligations under its Guarantee, such Guarantor shall be entitled to seek and receive contribution from and against the Company or any other Guarantor who have not paid their proportionate share of such payment. The provisions of this Section 10.3 shall in no respect limit the obligations and liabilities of each Guarantor to the Trustee and the Holders and each Guarantor shall remain liable to the Trustee and the Holders for the full amount guaranteed by such Guarantor hereunder.
SECTION 10.4 No Subrogation. Notwithstanding any payment or payments made by each Guarantor hereunder, no Guarantor shall be entitled to be subrogated to any of the rights of the Trustee or any Holder against the Company or any other Guarantor or any collateral security or guarantee or right of offset held by the Trustee or any Holder for the payment of the Guarantor Obligations, nor shall any Guarantor seek or be entitled to seek any contribution or reimbursement from the Company or any other Guarantor in respect of payments made by such Guarantor hereunder, until all amounts owing to the Trustee and the Holders by the Company on account of the Guarantor Obligations are paid in full. If any amount shall be paid to any Guarantor on account of such subrogation rights at any time when all of the Guarantor Obligations shall not have been paid in full, such amount shall be held by such Guarantor in trust for the Trustee and the Holders, segregated from other funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over to the Trustee in the exact form received by such Guarantor (duly indorsed by such Guarantor to the Trustee, if required), to be applied against the Guarantor Obligations.
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ARTICLE XI
INTENTIONALLY OMITTED
ARTICLE XII
Miscellaneous
SECTION 12.1 Notices. Notices given by publication shall be deemed given on the first date on which publication is made, and notices given by first-class mail, postage prepaid, shall be deemed given five calendar days after mailing. Any notice or communication shall be in writing and delivered in person, by facsimile, mailed by first-class mail or sent by electronic mail addressed as follows:
if to the Company or any Guarantor:
Getty Images, Inc.
605 Fifth Avenue S, Suite 400
Seattle, WA 98104
Facsimile No.: 206-925-5623
Attention: General Counsel
with a copy (which will not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West, 395 9th Ave
New York, NY 10001
Attention: Ryan Dzierniejko
Noel Hughes
if to the Trustee:
Wilmington Trust, National Association
50 South Sixth Street, Suite 1290
Minneapolis, MN 55402
Facsimile No.: 612-217-5651
Attention: Getty Images Account Manager
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The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed to the Holder at the Holder’s address as it appears on the registration books of the Note Registrar and shall be sufficiently given if so mailed within the time prescribed. Following the qualification of this Indenture under the TIA, any notice or communication shall also be so mailed or delivered to any Person described in TIA § 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods. If the party elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.
Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event (including any notice of redemption or purchase) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary for such Note (or its designee) pursuant to the standing instructions from such Depositary.
SECTION 12.2 Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take or refrain from taking any action under this Indenture (except in connection with the original issuance of Notes on the date hereof), the Company shall furnish to the Trustee:
(i) an Officer’s Certificate in form reasonably satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel in form reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
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SECTION 12.3 Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall (i) following the qualification of this Indenture under the TIA, comply with the provisions of TIA § 314(e) and (ii) prior to and following the qualification of this Indenture under the TIA, include:
(i) a statement that the individual making such certificate or opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of such individual, such covenant or condition has been complied with.
In giving such Opinion of Counsel, counsel may rely as to factual matters on an Officer’s Certificate or on certificates of public officials.
SECTION 12.4 [Reserved].
SECTION 12.5 Rules by Trustee, Paying Agent and Registrar. The Trustee may make reasonable rules for action by, or a meeting of, Holders. The Note Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 12.6 Days Other than Business Days. If a payment date is not a Business Day, payment shall be made on the next succeeding day that is a Business Day, and no interest shall accrue for the intervening period. If a Regular Record Date is not a Business Day, the Regular Record Date shall not be affected.
SECTION 12.7 Governing Law. This Indenture, the Notes and the Guarantees shall be deemed to be contracts made under the law of the State of New York, and for all purposes shall be governed by, and construed in accordance with, the laws of said State.
The Company irrevocably consents and agrees, for the benefit of the Holders from time to time of the Notes and the Trustee, that any legal action, suit or proceeding against it with respect to obligations, liabilities or any other matter arising out of or in connection with this Indenture or the Notes may be brought in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City, New York and, until amounts due and to become due in respect of the Notes have been paid, hereby irrevocably consents and submits to the non-exclusive jurisdiction of each such court in personam, generally and unconditionally, to the fullest extent permitted by law, with respect to any action, suit or proceeding for itself in respect of its properties, assets and revenues.
The Company irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in connection with this Indenture brought in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City, New York and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
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SECTION 12.8 Waiver of Jury Trial. THE COMPANY, THE GUARANTORS AND THE TRUSTEE EACH HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 12.9 No Recourse Against Others. An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Company or any other direct or indirect parent or any Guarantor shall not have any liability for any obligations of the Company or any Guarantor under the Notes, the Guarantees or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Notes. This waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.
SECTION 12.10 Successors. All agreements of the Company and each Guarantor in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successors.
SECTION 12.11 Multiple Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Indenture.
SECTION 12.12 Variable Provisions. The Company initially appoints the Trustee as Paying Agent and Note Registrar and Notes Custodian with respect to any Global Notes.
SECTION 12.13 Table of Contents; Headings. The table of contents, cross-reference sheet and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
SECTION 12.14 Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
SECTION 12.15 USA Patriot Act. The parties hereto acknowledge that in accordance with Section 326 of the USA Patriot Act the Trustee and the Trust Officers, like all financial institutions and in order to help fight the funding of terrorism and money laundering, are required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account. The parties to this agreement agree that they shall provide the Trustee and the Trust Officers with such information as they may request in order to satisfy the requirements of the USA Patriot Act.
SECTION 12.16 Severability. In case any provision in this Indenture or any Note will be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not, to the fullest extent permitted by law, in any way be affected or impaired thereby.
SECTION 12.17 Communication by Holders with Other Holders. Holders may communicate pursuant to TIA § 312(b) with other Holders of Notes with respect to their rights under this Indenture or the Notes. The Company, the Trustee, the Note Registrar and anyone else shall have the protection of TIA § 312(c).
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.
| GETTY IMAGES, INC. | ||
|---|---|---|
| By: | /s/ Kjelti Kellough | |
| Name: | Kjelti Kellough | |
| Title: | SVP, General Counsel | |
| GETTY IMAGES NEWS SERVICES (PRC), INC. | ||
| By: | /s/ Chris Hoel | |
| Name: | Chris Hoel | |
| Title: | VP Finance, Chief Accounting Officer | |
| GETTY IMAGES (US), INC. | ||
| By: | /s/ Chris Hoel | |
| Name: | Chris Hoel | |
| Title: | VP Finance, Chief Accounting Officer | |
| GETTY IMAGES (SEATTLE), INC. | ||
| By: | /s/ Chris Hoel | |
| Name: | Chris Hoel | |
| Title: | VP Finance, Chief Accounting Officer | |
| GETTY IMAGES HOLDINGS, INC. | ||
| By: | /s/ Kjelti Kellough | |
| Name: | Kjelti Kellough | |
| Title: | SVP, General Counsel |
[Signature Page to Indenture]
| WILMINGTON TRUST, NATIONAL<br><br> ASSOCIATION, as Trustee | ||
|---|---|---|
| By: | /s/ Barry D. Somrock | |
| Name: | Barry D. Somrock | |
| Title: | Vice President |
[Signature Page to Indenture(Trustee)]
EXHIBIT A
[Form of Initial Note]
[Applicable Restricted Notes Legends and ERISA Legend]
[Depository Legend, if applicable]
[Temporary Regulation S Legend, if applicable]
(FACE OF NOTE)
GETTY IMAGES, INC.
[__]% Senior Notes due 20[__]
CUSIP No. [__]
ISIN No. [__]
| No. [__] | Principal Amount $[__] |
|---|
Getty Images, Inc., a corporation duly organized and existing under the laws of the State of Delaware (and its successors and assigns) (the “Company”), promises to pay to [__] or its registered assigns, the principal sum of $[__] ([__] United States Dollars) [(or such lesser or greater amount as shall be outstanding hereunder from time to time in accordance with Sections 2.15 and 2.16, as applicable, of the Indenture referred to on the reverse hereof)]^1^ (the “Principal Amount”) on [__], 20[__].
Interest on this Note shall be payable semi-annually in arrears on [__] and [__] of each year, commencing [__], 20[__] (each, an “Interest Payment Date”). [Interest on this Note will accrue from the most recent date to which interest on this Note or any of its Predecessor Notes has been paid or duly provided for or, if no interest has been paid, from the Issue Date.]^2^ [Interest on this Note will accrue (or will be deemed to have accrued) from the most recent date to which interest on this Note or any of its Predecessor Notes has been paid or duly provided for or, if no such interest has been paid, from ^3^.]^4^.
Interest on the Notes shall be computed on the basis of a 360-day year consisting of twelve 30-day months. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be the [__] and [__] (whether or not a Business Day) (a “Regular Record Date”), as the case may be, immediately preceding such Interest Payment Date. Any interest on the Notes that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (“Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Company, at its election, to the Person in whose name the Notes (or one or more Predecessor Notes) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders not more than 15 days nor less than 10 days prior to such Special Record Date, or at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in Section 2.10 of the Indenture.
| ^1^ | Include only if the Note is issued in global form. |
|---|---|
| ^2^ | Include only for Initial Notes. |
| --- | --- |
| ^3^ | Insert applicable date. |
| --- | --- |
| ^4^ | Include only for Additional Notes. |
| --- | --- |
A-1
Payment of the principal of (and premium, if any) and interest on this Note will be made at the Corporate Trust Office of the Trustee, or such other office or agency of the Company maintained for that purpose; provided, however, that at the option of the Company, payment of interest may be made by wire transfer of immediately available funds to the account designated to the Company by the Person entitled thereto or by check mailed to the address of the Person entitled thereto as such address shall appear in the Note Register.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
| GETTY IMAGES, INC. | |
|---|---|
| By: | |
| Name: | |
| Title: |
A-3
This is one of the Notes referred to in the within mentioned Indenture.
| WILMINGTON TRUST, NATIONAL<br><br> ASSOCIATION, as Trustee | |
|---|---|
| By: | |
| Name: | |
| Title: |
Dated:
A-4
(REVERSE OF NOTE)
This Note is one of the duly authorized issue of [__]% Senior Notes due 20[__] of the Company (herein called the “Notes”), issued under an Indenture, dated as of October 21, 2025 (as amended or supplemented, herein called the “Indenture,” which term shall have the meaning assigned to it in such instrument), among the Company, the Guarantors from time to time parties thereto and Wilmington Trust, National Association, as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, any other obligor upon this Note, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered. The terms of the Notes include those stated in the Indenture and those made a part of the Indenture by reference to the Trust Indenture Act of 1939, as amended, as in effect from time to time (the “TIA”). The Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of such terms. To the maximum extent permitted by law, in the case of any conflict between the provisions of this Note and the Indenture, the provisions of the Indenture shall control. Additional Notes may be issued from time to time in one or more series under the Indenture and (except as provided in Section 9.2 of the Indenture) will vote as a class with the Notes and otherwise be treated as Notes for purposes of the Indenture.
All terms used in this Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
This Note may hereafter be entitled to certain other senior Guarantees made for the benefit of the Holders. Reference is made to Article X of the Indenture for terms relating to such Guarantees, including the release, termination and discharge thereof. Neither the Company nor any Guarantor shall be required to make any notation on this Note to reflect any Guarantee or any such release, termination or discharge.
The Notes are redeemable, at the Company’s option, in whole or in part, as provided in the Indenture and the [[ ] Supplemental Indenture, dated as of [ ], 20[ ], [between] [among] the Company[, the Guarantors party thereto] and the Trustee].^5^
The Indenture provides (as and to the extent set forth therein) that, upon the occurrence of a Change of Control, each Holder of Notes will have the right to require that the Company purchase all or any part of such Holder’s then outstanding Notes at a purchase price in cash equal to 101.0% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but not including, the date of such purchase (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date), except to the extent the Company has previously or concurrently elected to redeem all of the then outstanding Notes pursuant to Article V of the Indenture.
The Notes will not be entitled to the benefit of a sinking fund.
| ^5^ | Revise to reflect appropriate parties. |
|---|
A-5
The Indenture contains provisions for defeasance at any time of the entire Indebtedness of this Note or certain restrictive covenants and certain Events of Default with respect to this Note, in each case upon compliance with certain conditions set forth in the Indenture.
[If an Event of Default with respect to the Notes shall occur and be continuing, the principal of and accrued but unpaid interest on the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.]^6^
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and of the Notes by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Notes (as defined in the Indenture) then outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Notes (as defined in the Indenture) then outstanding, on behalf of the Holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture, the Holder of this Note shall not have the right to pursue any remedy with respect to the Indenture, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Notes, the Holders of at least 30.0% of the aggregate principal amount of the Notes (as defined in the Indenture) then outstanding shall have made written request to the Trustee to pursue such remedy, such Holder or Holders shall have offered the Trustee security or indemnity satisfactory to it in its sole discretion against any loss, liability or expense, and the Trustee shall not have received from the Holders of a majority in principal amount of Notes (as defined in the Indenture) then outstanding a written direction inconsistent with such request, and shall have failed to comply with such request, for 60 days after receipt of such request and offer of security or indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registrable in the Note Register, upon surrender of this Note for registration of transfer at the office or agency of the Company in a Place of Payment, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Note Registrar, duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Notes of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
| ^6^ | Include unless otherwise provided in the Notes Supplemental<br>Indenture establishing the applicable series of Notes. |
|---|
A-6
The Notes shall be issuable only in fully registered form, without coupons, and only in denominations of the Minimum Denomination (as defined in the Indenture) and any integral multiple of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration, transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or other governmental charge payable in connection therewith.
The Company, any Guarantor, the Trustee, the Paying Agent and any agent of any of them may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment of principal of (and premium, if any), and (subject to Section 2.10 of the Indenture) interest on, such Note and for all other purposes whatsoever, whether or not this Note be overdue, and none of the Company, any Guarantor, the Trustee, the Paying Agent nor any agent of any of them shall be affected by notice to the contrary.
An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Company or any other direct or indirect parent or any Guarantor shall not have any liability for any obligations of the Company or any Guarantor under the Notes, the Guarantees or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Notes. This waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
A-7
[FORM OF CERTIFICATE OF TRANSFER]
FOR VALUE RECEIVED the undersigned holder hereby sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
(Please print or typewrite name and address including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and appointing attorney to transfer such Note on the books of the Company with full power of substitution in the premises.
Check One
| ☐ (a) | this Note is being transferred in compliance with the exemption from registration under the Securities Act of 1933, as amended, provided<br>by Rule 144A thereunder. |
|---|
or
| ☐ (b) | this Note is being transferred other than in accordance with (a) above and documents are being furnished which comply with the conditions<br>of transfer set forth in this Note and the Indenture. |
|---|
If neither of the foregoing boxes is checked, the Trustee or other Note Registrar shall not be obligated to register this Note in the name of any Person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 2.16 of the Indenture shall have been satisfied.
Date:
A-8
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever.
Signature Guarantee:
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
| Dated: | |
|---|---|
| NOTICE: To be executed by an executive officer |
A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to Section 3.7 or 3.9 of the Indenture, check the box: ☐.
If you wish to have a portion of this Note purchased by the Company pursuant to Section 3.7 or 3.9 of the Indenture, state the amount below:
$
Date:
Your Signature: __________________________
(Sign exactly as your name appears on the
other side of this Note)
Signature Guarantee: ______________________
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
A-10
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
| Date of<br><br> <br>Exchange | Amount of<br><br> decreases<br><br> in principal amount of this Global Note | Amount of increases<br><br> in principal amount<br><br> of this Global Note | Principal amount<br><br> of this Global Note<br><br> following such<br><br> decreases or increases | Signature<br><br> of authorized officer<br><br> of Trustee or Notes<br><br> Custodian |
|---|
A-11
EXHIBIT B
[Form of Exchange Note]
[Applicable Restricted Notes Legend and ERISA Legend]
[Depository Legend, if applicable]
[Temporary Regulation S Legend, if applicable]
(FACE OF NOTE)
GETTY IMAGES, INC.
[__]% Senior Notes due 20[__]
CUSIP No. [ ]
ISIN No. [ ]
| No. [__] | Principal Amount $[__] |
|---|
Getty Images, Inc., a corporation duly organized and existing under the laws of the State of Delaware (and its successors and assigns) (the “Company”), promises to pay to, or its registered assigns, the principal sum of $[__] ([__] United States Dollars) (or such lesser or greater amount as shall be outstanding hereunder from time to time in accordance with [Sections 2.15 and 2.16, as applicable, of the Indenture referred to on the reverse hereof)]^1^ (the “Principal Amount”) on [__]1, 20[__].
Interest on this Note shall be payable semi-annually in arrears on [__] and [__] of each year, commencing [__], 20[__] (each, an “Interest Payment Date”). [Interest on this Note will accrue from the most recent date to which interest on this Note or any of its Predecessor Notes has been paid or duly provided for or, if no interest has been paid, from the Issue Date.]^2^ [Interest on this Note will accrue (or will be deemed to have accrued) from the most recent date to which interest on this Note or any of its Predecessor Notes has been paid or duly provided for or, if no such interest has been paid, from,^3^.]^4^.
Interest on the Notes shall be computed on the basis of a 360-day year consisting of twelve 30-day months. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be the [__] and [__] (whether or not a Business Day) (a “Regular Record Date”), as the case may be, immediately preceding such Interest Payment Date. Any interest on the Notes that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (“Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Company, at its election, to the Person in whose name the Notes (or one or more Predecessor Notes) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders not more than 15 days nor less than 10 days prior to such Special Record Date, or at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in Section 2.10 of the Indenture.
| ^1^ | Include only if the Note is issued in global form. |
|---|---|
| ^2^ | Include only for Exchange Notes issued in exchange for Initial Notes. |
| --- | --- |
| ^3^ | Insert the Interest Payment Date immediately preceding the date of issuance of the applicable<br> Additional Notes, or if the date of issuance of such Additional Notes is an Interest Payment Date, such date of issuance. |
| --- | --- |
| ^4^ | Include only for Exchange Notes issued in exchange for Additional Notes. |
| --- | --- |
B-1
Payment of the principal of (and premium, if any) and interest on this Note will be made at the Corporate Trust Office of the Trustee, or such other office or agency of the Company maintained for that purpose; provided, however, that at the option of the Company, payment of interest may be made by wire transfer of immediately available funds to the account designated to the Company by the Person entitled thereto or by check mailed to the address of the Person entitled thereto as such address shall appear in the Note Register.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
B-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
| GETTY IMAGES, INC. | |
|---|---|
| By: | |
| Name: | |
| Title: |
B-3
This is one of the Notes referred to in the within mentioned Indenture.
| WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee | |
|---|---|
| By: | |
| Name: | |
| Title: |
Dated:
B-4
(REVERSE OF NOTE)
This Note is one of the duly authorized issue of [__]% Senior Notes due 20[__] of the Company (herein called the “Notes”), issued under an Indenture, dated as of October 21, 2025 (as amended or supplemented, herein called the “Indenture,” which term shall have the meaning assigned to it in such instrument), among the Company, the Guarantors from time to time parties thereto and Wilmington Trust, National Association, as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, any other obligor upon this Note, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered. The terms of the Notes include those stated in the Indenture and those made a part of the Indenture by reference to the Trust Indenture Act of 1939, as amended, as in effect from time to time (the “TIA”). The Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of such terms. To the maximum extent permitted by law, in the case of any conflict between the provisions of this Note and the Indenture, the provisions of the Indenture shall control. Additional Notes may be issued from time to time in one or more series under the Indenture and (except as provided in Section 9.2 of the Indenture) will vote as a class with the Notes and otherwise be treated as Notes for purposes of the Indenture.
All terms used in this Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
This Note may hereafter be entitled to certain other senior Guarantees made for the benefit of the Holders. Reference is made to Article X of the Indenture for terms relating to such Guarantees, including the release, termination and discharge thereof. Neither the Company nor any Guarantor shall be required to make any notation on this Note to reflect any Guarantee or any such release, termination or discharge.
The Notes are redeemable, at the Company’s option, in whole or in part, as provided in the Indenture and the [[ ] Supplemental Indenture, dated as of [ ], 20[ ], [between] [among] the Company[, the Guarantors party thereto] and the Trustee].^5^
The Indenture provides (as and to the extent set forth therein) that, upon the occurrence of a Change of Control, each Holder of Notes will have the right to require that the Company purchase all or any part of such Holder’s then outstanding Notes at a purchase price in cash equal to 101.0% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but not including, the date of such purchase (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date), except to the extent the Company has previously or concurrently elected to redeem all of the then outstanding Notes pursuant to Article V of the Indenture.
The Notes will not be entitled to the benefit of a sinking fund.
| ^5^ | Revise to reflect appropriate parties. |
|---|
B-5
The Indenture contains provisions for defeasance at any time of the entire Indebtedness of this Note or certain restrictive covenants and certain Events of Default with respect to this Note, in each case upon compliance with certain conditions set forth in the Indenture.
[If an Event of Default with respect to the Notes shall occur and be continuing, the principal of and accrued but unpaid interest on the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.]^6^
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and of the Notes by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Notes (as defined in the Indenture) then outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Notes (as defined in the Indenture) then outstanding, on behalf of the Holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture, the Holder of this Note shall not have the right to pursue any remedy with respect to the Indenture, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Notes, the Holders of at least 30.0% of the aggregate principal amount of the Notes (as defined in the Indenture) then outstanding shall have made written request to the Trustee to pursue such remedy, such Holder or Holders shall have offered the Trustee security or indemnity satisfactory to it in its sole discretion against any loss, liability or expense, and the Trustee shall not have received from the Holders of a majority in principal amount of Notes (as defined in the Indenture) then outstanding a written direction inconsistent with such request, and shall have failed to comply with such request, for 60 days after receipt of such request and offer of security or indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registrable in the Note Register, upon surrender of this Note for registration of transfer at the office or agency of the Company in a Place of Payment, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Note Registrar, duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Notes of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
| ^6^ | Include unless otherwise provided in the Notes Supplemental Indenture establishing the applicable series of Notes. |
|---|
B-6
The Notes shall be issuable only in fully registered form, without coupons, and only in denominations of the Minimum Denomination (as defined in the Indenture) and any integral multiple of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration, transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or other governmental charge payable in connection therewith.
The Company, any Guarantor, the Trustee, the Paying Agent and any agent of any of them may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment of principal of (and premium, if any), and (subject to Section 2.10 of the Indenture) interest on, such Note and for all other purposes whatsoever, whether or not this Note be overdue, and none of the Company, any Guarantor, the Trustee, the Paying Agent nor any agent of any of them shall be affected by notice to the contrary.
An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Company or any other direct or indirect parent or any Guarantor shall not have any liability for any obligations of the Company or any Guarantor under the Notes, the Guarantees or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Notes. This waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
B-7
[FORM OF CERTIFICATE OF TRANSFER]
FOR VALUE RECEIVED the undersigned holder hereby sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
(Please print or typewrite name and address including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and appointing attorney to transfer such Note on the books of the Company with full power of substitution in the premises.
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever.
Signature Guarantee:
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
B-8
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to Section 3.7 or 3.9 of the Indenture, check the box: ☐.
If you wish to have a portion of this Note purchased by the Company pursuant to Section 3.7 or 3.9 of the Indenture, state the amount below:
$
Date:
Your Signature: _________________________
(Sign exactly as your name appears on the
other side of this Note)
Signature Guarantee: _____________________
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
B-9
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
| Date of<br><br> Exchange | Amount of<br><br> decreases<br><br> in principal amount of this Global Note | Amount of increases<br><br> in principal amount<br><br> of this Global Note | Principal amount<br><br> of this Global Note<br><br> following such<br><br> decreases or increases | Signature<br><br> of authorized officer<br><br> of Trustee or Notes<br><br> Custodian |
|---|
B-10
EXHIBIT C
Form of Certificate of Beneficial Ownership
On or after [_], 20[ ]
Getty Images, Inc.
605 Fifth Avenue S, Suite 400
Seattle, WA 98104
Attention: General Counsel
Re: Getty Images, Inc. (the “Company”)
[ ]% Senior Notes due 20[ ] (the “Notes”)
Ladies and Gentlemen:
This letter relates to $ principal amount of Notes represented by the offshore [temporary] global note certificate (the “[Temporary] Regulation S Global Note”). Pursuant to Section 2.16(3) of the Indenture dated as of October 21, 2025 relating to the Notes (as amended, supplemented, waived or otherwise modified, the “Indenture”), we hereby certify that (1) we are the beneficial owner of such principal amount of Notes represented by the [Temporary] Regulation S Global Note and (2) we are either (i) a Non-U.S. Person to whom the Notes could be transferred in accordance with Rule 903 or 904 of Regulation S (“Regulation S”) promulgated under the Securities Act of 1933, as amended (the “Act”) or (ii) a U.S. Person who purchased securities in a transaction that did not require registration under the Act.
You, the Company and counsel for the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S.
| Very truly yours,<br><br> <br>[Name of Holder] | |
|---|---|
| By: | |
| Authorized Signature |
C-1
EXHIBIT D
Form of Regulation S Transfer Certificate
Regulation S Certificate
WILMINGTON TRUST, NATIONAL ASSOCIATION
50 South Sixth Street, Suite 1290
Minneapolis, MN 55402
Attention: Getty Images Account Manager
Re: Getty Images, Inc. (the “Company”)
[ ]% Senior Notes due 20[ ] (the “Notes”)
Ladies and Gentlemen:
In connection with our proposed sale of $ aggregate principal amount of Notes, we confirm that such sale has been effected pursuant to and in accordance with Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), and accordingly, we hereby certify as follows:
The offer of the Notes was not made to a person in the United States (unless such person or the account held by it for which it is acting is excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(vi) or 902(k)(2)(i) of Regulation S under the circumstances described in Rule 902(h)(3) of Regulation S) or specifically targeted at an identifiable group of U.S. citizens abroad.
Either (a) at the time the buy order was originated, the buyer was outside the United States or we and any person acting on our behalf reasonably believed that the buyer was outside the United States or (b) the transaction was executed in, on or through the facilities of a designated offshore securities market, and neither we nor any person acting on our behalf knows that the transaction was pre-arranged with a buyer in the United States.
No directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S, as applicable.
The proposed transfer of Notes is not part of a plan or scheme to evade the registration requirements of the Securities Act.
If we are a dealer or a person receiving a selling concession or other fee or remuneration in respect of the Notes, and the proposed transfer takes place before end of the distribution compliance period under Regulation S, or we are an officer or director of the Company or a distributor, we certify that the proposed transfer is being made in accordance with the provisions of Rules 903 and 904 of Regulation S.
If the proposed transfer takes place before the end of the distribution compliance period under Regulation S, the beneficial interest in the Notes so transferred will be held immediately thereafter through Euroclear (as defined in such Indenture) or Clearstream (as defined in such Indenture).
We have advised the transferee of the transfer restrictions applicable to the Notes.
D-1
You, as Trustee and Note Registrar, and the Company and counsel for the Company are entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S.
| Very truly yours,<br><br> <br>[NAME OF SELLER] | |
|---|---|
| By: | |
| Name: | |
| Title: | |
| Address: |
Date of this Certificate: , 20
D-2
EXHIBIT E
Form of Supplemental Indenture in Respect of Subsidiary Guarantee
THIS [9] SUPPLEMENTAL INDENTURE, dated as of [●], 20[●] (this “Supplemental Indenture”), is by and among Getty Images, Inc., a corporation duly organized and existing under the laws of the State of Delaware (and its successors and assigns, the “Company”), each of the parties identified as a New Guarantor on the signature pages hereto (each, a “New Guarantor” and collectively, the “New Guarantors”) and Wilmington Trust, National Association, as trustee (the “Trustee”).
W I T N E S S E T H:
WHEREAS, the Company and the Trustee are parties to an indenture dated as of October 21, 2025 (as amended, supplemented, waived or otherwise modified, the “Indenture”), providing for the issuance of Notes in series;
WHEREAS, the Indenture provides that under certain circumstances the New Guarantors shall execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantors shall unconditionally guarantee all of the Company’s obligations under the Notes and the Indenture on the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the New Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
Agreements to Become Guarantors. Each of the New Guarantors hereby jointly and severally, irrevocably, fully and unconditionally guarantees, as guarantor and not as a surety, the Company’s obligations for the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on all the Notes and all other Obligations of the Company under the Indenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company, or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6 of the Indenture), on the terms and subject to the conditions set forth in Article X of the Indenture and agrees to be bound by all other provisions of the Indenture and the Notes applicable to a Guarantor therein.
Ratification of Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
E-1
No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Company or any other direct or indirect parent shall have any liability for any obligations of the Company or the New Guarantors under the Notes, the Indenture, the Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes, by accepting a Note, waives and releases all such liability. This waiver and release are part of the consideration for issuance of the Notes. This waiver may not be effective to waive liabilities under the federal securities laws.
Notices. For purposes of Section 12.1 of the Indenture, the address for notices to the Company and the New Guarantors shall be:
605 Fifth Avenue S, Suite 400
Seattle, WA 98104
Facsimile No.: 206-925-5623
Attention: General Counsel
- Governing Law. This Supplemental Indenture shall be deemed to be contracts made under the law of the State of New York, and for all purposes shall be governed by, and construed in accordance with, the laws of said State.
The Company irrevocably consents and agrees, for the benefit of the Holders from time to time of the Notes and the Trustee, that any legal action, suit or proceeding against it with respect to obligations, liabilities or any other matter arising out of or in connection with this Indenture or the Notes may be brought in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City, New York and, until amounts due and to become due in respect of the Notes have been paid, hereby irrevocably consents and submits to the non-exclusive jurisdiction of each such court in personam, generally and unconditionally, to the fullest extent permitted by law, with respect to any action, suit or proceeding for itself in respect of its properties, assets and revenues.
The Company irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in connection with this Indenture brought in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City, New York and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together shall represent the same agreement. Delivery of an executed counterpart of a signature page to this Supplemental Indenture by telecopier, facsimile or other electronic transmission (i.e. a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart thereof.
Effect of Headings. The section headings herein are for convenience only and shall not affect the construction hereof.
The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company or the New Guarantors, as applicable.
E-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
| [NAME OF GUARANTOR(S)], | |
|---|---|
| as Guarantor | |
| By: | |
| Name: | |
| Title: | |
| GETTY IMAGES, INC. | |
| By: | |
| Name: | |
| Title: | |
| WILMINGTON TRUST, NATIONAL ASSOCIATION, | |
| as Trustee | |
| By: | |
| Name: | |
| Title: |
E-3
EXHIBIT F
Form of Certificate from Acquiring Institutional Accredited Investors
WILMINGTON TRUST, NATIONAL ASSOCIATION
50 South Sixth Street, Suite 1290
Minneapolis, MN 55402
Attention: Getty Images Account Manager
Re: Getty Images, Inc. (the “Company”)
[ ]% Senior Notes due 20[ ] (the “Notes”)
Ladies and Gentlemen:
In connection with our proposed sale of $ aggregate principal amount of Notes, we confirm that:
We understand that any subsequent transfer of the Notes is subject to certain restrictions and conditions set forth in the Indenture dated as of October 21, 2025 relating to the Notes (as amended, supplemented, waived or otherwise modified, the “Indenture”) and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes except in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended (the “Securities Act”).
We understand that the Notes have not been registered under the Securities Act or any other applicable securities law, and that the Notes may not be offered, sold or otherwise transferred except as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should offer, sell, transfer, pledge, hypothecate or otherwise dispose of any Notes within one year after the original issuance of the Notes, we will do so only (A) to the Company or a Subsidiary, (B) inside the United States to a “qualified institutional buyer” in compliance with Rule 144A under the Securities Act, (C) inside the United States to an institutional “accredited investor” (as defined below) that, prior to such transfer, furnishes to you a signed letter substantially in the form of this letter, (D) outside the United States to a foreign person in compliance with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the exemption from registration provided by Rule 144 under the Securities Act (if available), or (F) pursuant to an effective registration statement under the Securities Act, and we further agree to provide to any person purchasing any of the Notes from us a notice advising such purchaser that resales of the Notes are restricted as stated herein and in the Indenture.
We understand that, on any proposed transfer of any Notes prior to the later of the original issue date of the Notes and the last date the Notes were held by an affiliate of the Company pursuant to paragraphs 2(C), 2(D) and 2(E) above, we will be required to furnish to you and the Company such certifications, legal opinions and other information as you and the Company may reasonably require to confirm that the proposed transfer complies with the foregoing restrictions. We further understand that the Notes purchased by us will bear a legend to the foregoing effect.
F-1
We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we and any accounts for which we are acting are acquiring the Notes for investment purposes and not with a view to, or offer or sale in connection with, any distribution in violation of the Securities Act, and we are each able to bear the economic risk of our or its investment.
We are acquiring the Notes purchased by us for our own account or for one or more accounts (each of which is an institutional “Accredited Investor”) as to each of which we exercise sole investment discretion.
You, the Company, and counsel for the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
| Very truly yours,<br><br> <br>(Name of Transferee) | |
|---|---|
| By: | |
| Authorized Signature |
F-2
EXHIBIT G
FORM OF SUPPLEMENTAL INDENTURE ESTABLISHING A SERIES OF NOTES
[NAME OF COMPANY]
as Company
and
the Guarantors from time to time party to the Indenture
and
WILMINGTON TRUST, NATIONAL ASSOCIATION
as Trustee
[ ] SUPPLEMENTAL INDENTURE
DATED AS OF [ ], 20[ ]
[ ]% Senior Notes Due 20[ ]
[ ]^1^ SUPPLEMENTAL INDENTURE, dated as of [_], 20[ ] (this “Supplemental Indenture”), among Getty Images, Inc. (the “Company”), the Guarantors under the Indenture referred to below (the “Guarantors”), and Wilmington Trust, National Association, as Trustee under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company, the Guarantors and the Trustee, are party to an Indenture, dated as of October 21, 2025 (as amended, supplemented, waived or otherwise modified, the “Indenture”), relating to the issuance from time to time by the Company of Notes;
WHEREAS, Section 9.1(xii) of the Indenture provides that the Company may provide for the issuance of Notes of any series as permitted by Section 2.4 therein;
WHEREAS, in connection with the issuance of the [ ] Notes (as defined herein), the Company has duly authorized the execution and delivery of this Supplemental Indenture to establish the forms and terms of the [ ] Notes as hereinafter described; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the parties hereto are authorized to execute and deliver this Supplemental Indenture to amend the Indenture, without the consent of any Holder;
| 1 | Insert supplement number. |
|---|
G-1
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the Guarantors and the Trustee mutually covenant and agree for the benefit of the Holders of the Notes as follows:
Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as so defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
Title of Notes. There shall be a series of Notes of the Company designated the “[ ]%^2^ Senior Notes due 20[ ]”^3^ (the “[ ]^4^ Notes”).
Maturity Date. The final Stated Maturity of the [ ] Notes shall be [[ ], 20[ ]].^5^
Interest and Interest Rates. Interest on the Outstanding principal amount of [ ] Notes will accrue at the rate of [ ]%^6^ per annum and will be payable semi-annually in arrears on [[ ] and [ ]]^7^ of each year, commencing on [[], 20[ ]],^8^ to holders of record on the immediately preceding [[ ] and [ ]],^9^ respectively (each such [ ] and [ ], a “Regular Record Date”). Interest on the [ ] Notes will accrue from the most recent date to which interest has been paid or provided for or, if no interest has been paid, from [ ], 20[ ], except that interest on any Additional [ ] Notes (as defined below) issued on or after the first Interest Payment Date (and Exchange Notes issued in exchange therefor) will accrue (or will be deemed to have accrued) from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid on such Additional [ ] Notes, from the Interest Payment Date immediately preceding the date of issuance of such Additional [ ] Notes (or if the date of issuance of such Additional [ ] Notes is an Interest Payment Date, from such date of issuance); provided that if any [ ] Note and any Exchange Notes issued in exchange therefor are surrendered for exchange on or after a record date for an Interest Payment Date that will occur on or after the date of such exchange, interest on such Note received in exchange thereof will accrue from such Interest Payment Date.
[No] Limitation on Aggregate Principal Amount. The aggregate principal amount of [ ] Notes that may be authenticated and delivered and Outstanding under the Indenture is [not limited] [limited to $[ ]].^10^ [The aggregate principal amount of the [ ] Notes shall initially be $[ ]^11^ million.]^12^ [The aggregate principal amount of the [ ] Notes issued pursuant to this Supplemental Indenture shall be $[ ] million.]^13^ The Company may from time to time, without the consent of the Holders, create and issue Additional Notes having the same terms and conditions as the [ ] Notes in all respects or in all respects except for issue date, issue price and, if applicable, the first date on which interest accrues and the first payment of interest thereon. Additional Notes issued in this manner will be consolidated with, and will form a single series with, the [ ] Notes (any such Additional Notes, “Additional [ ] Notes”), unless otherwise specified for Additional Notes in an applicable Notes Supplemental Indenture, or otherwise designated by the Company, as contemplated by Section 2.4 of the Indenture.
| ^2^ | Insert interest rate. |
|---|---|
| ^3^ | Insert year during which the maturity date falls. |
| --- | --- |
| ^4^ | Insert title of notes. |
| --- | --- |
| ^5^ | Insert Maturity Date. |
| --- | --- |
| ^6^ | Insert interest rate. |
| --- | --- |
| ^7^ | Insert Interest Payment Dates. |
| --- | --- |
| ^8^ | Insert First Interest Payment Date. |
| --- | --- |
| ^9^ | Insert Record Dates. |
| --- | --- |
| ^10^ | Insert whether the applicable series of Notes will be limited<br>or not. |
| --- | --- |
| ^11^ | Insert principal amount of issuance. |
| --- | --- |
| ^12^ | Insert for the initial notes of any applicable series. |
| --- | --- |
| ^13^ | Insert for the Additional Notes of any applicable series. |
| --- | --- |
G-2
- Redemption.
(a) On and after [[ ], 20[ ]]^14^, the Company may redeem the [ ] Notes, at its option, in whole at any time or in part from time to time, upon notice as described in Section 5.4 of the Indenture, at the following redemption prices (expressed as a percentage of principal amount), plus accrued and unpaid interest, if any, to, but not including, the Redemption Date (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date), if redeemed during the 12-month period commencing on [ ]^15^ of the years set forth below:
| Redemption Period^16^ | Price^17^ | ||
|---|---|---|---|
| 20[ ] | [ ] | % | |
| 20[ ] | [ ] | % | |
| 20[ ] | [ ] | % | |
| 20[ ] and thereafter | 100.000 | % |
(b) In addition, at any time prior to [ ], 20[ ],^18^ the Company may redeem the [ ] Notes at its option, in whole at any time or in part from time to time, upon notice as described in Section 5.4 of the Indenture, at a redemption price equal to 100.0% of the principal amount of the [ ] Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any, to, but not including, the applicable Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date).
(c) Notwithstanding the foregoing, at any time and from time to time, upon notice as described in Section 5.4 of the Indenture, on or prior to [ ], 20[ ],^19^ the Company may redeem in the aggregate up to [ ]%^20^ of the original aggregate principal amount of the [ ] Notes (calculated after giving effect to any issuance of any Additional [ ] Notes, or any other Additional Notes of the same series as the [ ] Notes) with an amount equal to the net cash proceeds of one or more Equity Offerings by the Company or any direct or indirect parent of the Company, to the extent net cash proceeds thereof are contributed to the common equity capital of the Company or used to purchase Capital Stock (other than Disqualified Stock) of the Company from it, at a redemption price (expressed as a percentage of the principal amount thereof) equal to [ ]%,^21^ plus accrued and unpaid interest, if any, to, but not including, the Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that at least [ ]% of the original aggregate principal amount of the [ ] Notes (calculated after giving effect to any issuance of any Additional [ ] Notes, or any other Additional Notes of the same series as the [ ] Notes) must remain outstanding after each such redemption; and provided, further, that such redemption shall occur within 90 days after the date on which any such Equity Offering is consummated upon not less than 15 nor more than 60 days’ prior notice mailed by first-class mail to each Holder’s registered address or otherwise in accordance with the procedures of DTC.
| ^14^ | Insert date upon which the Notes are callable. |
|---|---|
| ^15^ | Insert date upon which the Notes are callable. |
| --- | --- |
| ^16^ | Insert years, adding or deleting lines if applicable. |
| --- | --- |
| ^17^ | Insert prices. |
| --- | --- |
| ^18^ | Insert date until which equity clawback is applicable. |
| --- | --- |
| ^19^ | Insert date until which equity clawback is applicable. |
| --- | --- |
| ^20^ | Insert maximum percentage for equity clawback. |
| --- | --- |
| ^21^ | Insert premium. |
| --- | --- |
G-3
“Applicable Premium” means, with respect to any Note on any applicable redemption date, as determined by the Company, the greater of:
| (1) | 1.0% of the then outstanding principal amount of the Note; and |
|---|---|
| (2) | the excess of |
| --- | --- |
(a) the present value at such redemption date of (i) the redemption price of the Note at [ ], 20[ ]^22^ (such redemption price being that described in Section 6(a)) plus (ii) all required interest payments due on the Note through [ ], 20[ ] (excluding accrued but unpaid interest to the applicable redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over
(b) the then outstanding principal amount of the Note,
as calculated by the Company or its agent; the Trustee shall have no responsibility to calculate or verify the calculation of the Applicable Premium.
“Treasury Rate” means, as of the applicable redemption date, the weekly average rounded to the nearest 1 /100th of a percentage point (for the most recently completed week for which such information is available as of the date that is two business days prior to the redemption date) of the yield to maturity of United States Treasury securities with a constant maturity (as compiled and published in the Federal Reserve Statistical Release H.15 with respect to each applicable day during such week (or, if such Statistical Release is no longer published or such information no longer appears thereon, any publicly available source of similar market data)) most nearly equal to the period from such redemption date to [ ], 20[ ]^23^, provided, however, that if the period from the redemption date to [ ], 20[ ] is not equal to the constant maturity of a United States Treasury Security for which such a yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury Securities for which such yields are given, except that if the period from such redemption date to [ ], 20[ ] is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.
| ^22^ | Insert date upon which the Notes are callable. |
|---|---|
| ^23^ | Insert date upon which the Notes are callable. |
| --- | --- |
G-4
[ ]^24^
Form. The [ ] Notes shall be issued substantially in the form set forth, or referenced, in Article II of the Indenture, and either Exhibit A or B attached to the Indenture, in each case as provided for in Section 2.1 of the Indenture (as such form may be modified in accordance with Section 2.4 of the Indenture).
Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture or as to the accuracy of the recitals to this Supplemental Indenture.
Counterparts. The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.
Headings. The section headings herein are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
| ^24^ | Include appropriate provisions in accordance with Section 2.4(7)<br>and/or Section 2.4(8) of the Indenture. |
|---|
G-5
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
| [NAMES OF COMPANY] | |
|---|---|
| By: | |
| Name: | |
| Title: | |
| [GUARANTORS]<br><br> <br>[ ] | |
| By: | |
| Name: | |
| Title: | |
| WILMINGTON TRUST, NATIONAL ASSOCIATION, not in its individual capacity, but solely as Trustee | |
| By: | |
| Name: | |
| Title: |
G-6
Exhibit4.2
SUPPLEMENTAL INDENTURE ESTABLISHING A SERIES OF NOTES
GETTY IMAGES, INC.
as Company
and
the Guarantors from time to time party to the Indenture
and
WILMINGTON TRUST, NATIONAL ASSOCIATION
as Trustee
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 21, 2025
14.000% Senior Notes Due 2028
FIRST SUPPLEMENTAL INDENTURE, dated as of October 21, 2025 (this “Supplemental Indenture”), among Getty Images, Inc. (the “Company”), the Guarantors under the Indenture referred to below (the “Guarantors”), and Wilmington Trust, National Association, as Trustee under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company, the Guarantors and the Trustee, are party to an Indenture, dated as of October 21, 2025 (as amended, supplemented, waived or otherwise modified, the “Indenture”), relating to the issuance from time to time by the Company of Notes;
WHEREAS, Section 9.1(xiii) of the Indenture provides that the Company may provide for the issuance of Notes of any series as permitted by Section 2.4 therein;
WHEREAS, in connection with the issuance of the 2028 Notes (as defined herein), the Company has duly authorized the execution and delivery of this Supplemental Indenture to establish the forms and terms of the 2028 Notes as hereinafter described; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the parties hereto are authorized to execute and deliver this Supplemental Indenture to amend the Indenture, without the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the Guarantors and the Trustee mutually covenant and agree for the benefit of the Holders of the Notes as follows:
1. Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as so defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
2. Title of Notes. There shall be a series of Notes of the Company designated the “14.000% Senior Notes due 2028” (the “2028 Notes”).
3. Maturity. The final Stated Maturity of the 2028 Notes shall be March 1, 2028. Unless earlier paid or deemed paid, in each case, at the then applicable price set forth in Section 7 hereto, on the Stated Maturity, the Company will repay 100% of the aggregate principal amount of the 2028 Notes outstanding at the then applicable price set forth in Section 7 hereto, plus accrued and unpaid interest, if any, to, but not including, the Stated Maturity (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date).
4. Interest and Interest Rates. Interest on the Outstanding principal amount of 2028 Notes will accrue at the rate of 14.000% per annum and will be payable semi-annually in arrears on March 1 and September 1 of each year, commencing on March 1, 2026, to holders of record on the immediately preceding February 15 and August 15, respectively (each such February 15 and August 15, a “Regular Record Date”). Interest on the 2028 Notes will accrue from the most recent date to which interest has been paid or provided for or, if no interest has been paid, from October 21, 2025, except that interest on any Additional 2028 Notes (as defined below) issued on or after the first Interest Payment Date (and Exchange Notes issued in exchange therefor) will accrue (or will be deemed to have accrued) from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid on such Additional 2028 Notes, from the Interest Payment Date immediately preceding the date of issuance of such Additional 2028 Notes (or if the date of issuance of such Additional 2028 Notes is an Interest Payment Date, from such date of issuance); provided that if any 2028 Note and any Exchange Notes issued in exchange therefor are surrendered for exchange on or after a record date for an Interest Payment Date that will occur on or after the date of such exchange, interest on such Note received in exchange thereof will accrue from such Interest Payment Date.
-2-
No Limitation on Aggregate Principal Amount. The aggregate principal amount of 2028 Notes that may be authenticated and delivered and Outstanding under the Indenture is not limited. The aggregate principal amount of the 2028 Notes shall initially be $294,686,000. The Company may from time to time, without the consent of the Holders, create and issue Additional Notes having the same terms and conditions as the 2028 Notes in all respects or in all respects except for issue date, issue price and, if applicable, the first date on which interest accrues and the first payment of interest thereon. Additional Notes issued in this manner will be consolidated with, and will form a single series with, the 2028 Notes (any such Additional Notes, “Additional 2028 Notes”), unless otherwise specified for Additional Notes in an applicable Notes Supplemental Indenture, or otherwise designated by the Company, as contemplated by Section 2.4 of the Indenture.
| 6. | Mandatory<br> Redemption. |
|---|
(a) On June 30, 2026, and every June 30 and December 30 thereafter (or to the extent such day is not a Business Day, the preceding Business Day), the Company shall redeem the 2028 Notes in an amount equal to $30.0 million at the then applicable optional redemption price set forth in Section 7 below, plus accrued and unpaid interest, if any, to, but not including, the Redemption Date (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date).
| 7. | Optional<br> Redemption. |
|---|
(a) At any time on or prior to the earlier of (i) March 1, 2027 and (ii) the 180th day after the Merger Closing Date, the Company may redeem the 2028 Notes at its option, in whole at any time or in part from time to time, upon notice as described in Section 5.4 of the Indenture, at a redemption price equal to 100.0% of the principal amount of the 2028 Notes redeemed, plus accrued and unpaid interest, if any, to, but not including, the Redemption Date (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date).
(b) In addition, at any time after the earlier of (i) March 1, 2027 and (ii) the 180th day after the Merger Closing Date, the Company may redeem the 2028 Notes, at its option, in whole at any time or in part from time to time, upon notice as described in Section 5.4 of the Indenture, at the redemption prices set forth below (expressed as a percentage of principal amount), plus accrued and unpaid interest, if any, to, but not including, the Redemption Date (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date) if redeemed during the applicable 180 day period set forth below:
| Date | Percentage | ||
|---|---|---|---|
| After the earlier of (i) March 1, 2027 and (ii) the 180th day after the Merger Closing Date | 101.0 | % | |
| After the earlier of (i) September 1, 2027 and (ii) the 360th day after the Merger Closing Date | 102.0 | % | |
| After the earlier of (i) March 1, 2028 and (ii) the 540th day after the Merger Closing Date | 103.0 | % | |
| After the 720th day after the Merger Closing Date (to the extent applicable) | 104.0 | % |
-3-
Certain Definitions. For the purposes of the 2028 Notes, the defined terms set forth below shall be defined as follows:
“Applicable Premium” means, with respect to any Note on any Redemption Date, as determined by the Company, the greater of:
| (1) | 1.0%<br> of the then outstanding principal amount of the Note; and |
|---|---|
| (2) | the<br> excess of |
| --- | --- |
(a) the present value at such redemption date of (i) the redemption price of the Note at March 1, 2028 (such redemption price being that described in Section 7(b)) plus (ii) all required interest payments due on the Note through March 1, 2028 (excluding accrued but unpaid interest to the Redemption Date), computed using a discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points; over
| (b) | the<br> then outstanding principal amount of the Note, |
|---|
as calculated by the Company or its agent; the Trustee shall have no responsibility to calculate or verify the calculation of the Applicable Premium.
“Treasury Rate” means, as of the Redemption Date, the weekly average rounded to the nearest 1/100th of a percentage point (for the most recently completed week for which such information is available as of the date that is two business days prior to the redemption date) of the yield to maturity of United States Treasury securities with a constant maturity (as compiled and published in the Federal Reserve Statistical Release H.15 with respect to each applicable day during such week (or, if such Statistical Release is no longer published or such information no longer appears thereon, any publicly available source of similar market data)) most nearly equal to the period from such redemption date to March 1, 2028; provided, however, that if the period from the redemption date to March 1, 2028 is not equal to the constant maturity of a United States Treasury Security for which such a yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury Securities for which such yields are given, except that if the period from such redemption date to March 1, 2028 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.
-4-
Form. The 2028 Notes shall be issued substantially in the form set forth, or referenced, in Article II of the Indenture, and either Exhibit A or B attached to the Indenture, in each case as provided for in Section 2.1 of the Indenture (as such form may be modified in accordance with Section 2.4 of the Indenture).
10. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
11. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture or as to the accuracy of the recitals to this Supplemental Indenture.
12. Counterparts. The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.
13. Headings. The section headings herein are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
-5-
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
| GETTY IMAGES, INC. | ||
|---|---|---|
| By: | /s/<br> Christopher N. Hoel | |
| Name: | Christopher N. Hoel | |
| Title: | Vice President and Treasurer | |
| GETTY IMAGES HOLDINGS, INC. | ||
| By: | /s/<br> Christopher N. Hoel | |
| Name: | Christopher N. Hoel | |
| Title: | Vice President and Chief Accounting Officer | |
| GETTY IMAGES NEWS SERVICES (PRC), INC. | ||
| By: | /s/<br> Christopher N. Hoel | |
| Name: | Christopher N. Hoel | |
| Title: | Vice President and Treasurer | |
| GETTY IMAGES (US), INC. | ||
| By: | /s/<br> Christopher N. Hoel | |
| Name: | Christopher N. Hoel | |
| Title: | Vice President and Treasurer | |
| GETTY IMAGES (SEATTLE), INC. | ||
| By: | /s/<br> Christopher N. Hoel | |
| Name: | Christopher N. Hoel | |
| Title: | Vice President and Treasurer |
[SignaturePage to First Supplemental Indenture (Issuer & Guarantors)]
| WILMINGTON TRUST, NATIONAL | ||
|---|---|---|
| ASSOCIATION, as Trustee | ||
| By: | /s/<br> Barry D. Somrock | |
| Name: | Barry D. Somrock | |
| Title: | Vice President |
[SignaturePage to First Supplemental Indenture (Trustee)]
Exhibit 4.4
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE dated as of October 21, 2025 (this “Supplemental Indenture”), among Getty Images, Inc., a Delaware corporation (the “Company”), Getty Images Holdings, Inc., a Delaware corporation (the “Parent”), Getty Images News Services (PRC), Inc., a Delaware corporation (“Getty PRC”), Getty Images (Seattle), Inc., a Washington corporation (“Getty Seattle”), Getty Images (US), Inc., a New York corporation (“Getty US”, and together with the Parent, Getty PRC and Getty Seattle, the “Guarantors”) and Wilmington Trust, National Association, as trustee (the “Trustee”) under the Indenture referred to below.
W I T N E S S E T H
WHEREAS, each of the Company, Getty PRC, Getty US, Getty Seattle and the Trustee have executed and delivered the Indenture, dated as of February 19, 2019 (the “Indenture”) providing for the issuance from time to time of one or more series of debt securities of the Company;
WHEREAS, (i) each of the Company, Getty PRC, Getty US, Getty Seattle and the Trustee have executed and delivered the First Supplemental Indenture to the Indenture, dated as of February 19, 2019 (the “First Supplemental Indenture”), providing for the issuance of an aggregate principal amount of $300,000,000 of 9.750% Senior Notes due 2019 of the Company (the “Notes”) and the guarantee of such Notes issued under the Indenture by the Guarantors party thereto and (ii) each of the Company, the Parent and the Trustee have executed and delivered the Second Supplemental Indenture to the Indenture, dated as of March 29, 2023 (the “Second Supplemental Indenture”), providing for the Parent’s guarantee of the Notes issued under the Indenture (such guarantees collectively, the “Guarantees”);
WHEREAS, Section 9.2 of the Indenture provides that, subject to certain conditions, the Company, the Guarantors and the Trustee may amend, supplement or otherwise modify the Indenture, the Notes or the Guarantees with the consent of the Holders (as defined below) of at least a majority in aggregate principal amount of all the outstanding Notes issued under the Indenture (including consents obtained in connection with a purchase of, tender offer or exchange offer for, the Notes) (such consents, the “Requisite Consents”);
WHEREAS, the Company offered to exchange (the “Exchange Offer”), for up to $300,000,000 aggregate principal of newly issued 14.000% Senior Notes due 2028, any and all of the outstanding Notes, upon the terms and subject to the conditions set forth in the confidential offering memorandum and consent solicitation statement relating to the Exchange Offer, dated as of September 18, 2025 (the “Offering Memorandum”);
WHEREAS, in connection with the Exchange Offer, the Company also solicited the Requisite Consents (such solicitation, the “Consent Solicitation”) to certain proposed amendments to the Indenture set forth in Articles II and III of this Third Supplemental Indenture;
WHEREAS, at or prior to 5:00 p.m., New York City time, on October 17, 2025, the Company received the Requisite Consents pursuant to the Consent Solicitation;
WHEREAS, (i) the Company has satisfied all conditions precedent provided under the Indenture to enable the Company, the Guarantors and the Trustee to enter into this Third Supplemental Indenture, the execution and delivery of this Third Supplemental Indenture is authorized or permitted by the Indenture and all other conditions and requirements necessary to make this Third Supplemental Indenture, when duly executed and delivered, a valid, binding and enforceable agreement against the Company and the Guarantors in accordance with its terms have been performed and fulfilled, all as certified by an Officer’s Certificate delivered to the Trustee simultaneously with the execution and delivery of this Third Supplemental Indenture as contemplated by Sections 9.5 and 12.2 of the Indenture, and (ii) the Company has delivered to the Trustee simultaneously with the execution and delivery of this Third Supplemental Indenture an Officer’s Certificate and an Opinion of Counsel relating to this Third Supplemental Indenture as contemplated by Sections 9.5 and 12.2 of the Indenture;
WHEREAS, the Indenture provides pursuant to Section 9.5 that the Trustee will join the Company and the Guarantors in the execution of any amended or supplemental indenture authorized pursuant to Section 9.2 of the Indenture if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee;
WHEREAS, the Indenture provides pursuant to Section 9.3 that an amendment or waiver made pursuant to Section 9.2 thereof shall become effective upon receipt by the Company of the Requisite Consents, and the Requisite Consents have been so received ; and
WHEREAS, the board of directors of the Company and each Guarantor have authorized and approved the execution and delivery of this Third Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the holders of the Notes (the “Holders”) as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. As used in this Third Supplemental Indenture, terms defined in the Indenture or in the preamble or recitals hereto are used herein as therein defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Third Supplemental Indenture refer to this Third Supplemental Indenture as a whole and not to any particular Section hereof.
ARTICLE II
CONSENTEDAMENDMENTS
Section 2.1 Amendments to Certain Provisions of the Indenture.
(a) The Indenture is hereby amended to eliminate Section 3.2 (Reports and Other Information), Section 3.3 (Limitation on Incurrence ofIndebtedness and Issuance of Disqualified Stock and Preferred Stock), Section 3.4 (Limitation on Restricted Payments), Section 3.5 (Liens), Section 3.6 (Dividend and Other Payment Restrictions Affecting Subsidiaries), Section 3.7 (Asset Sales), Section 3.8 (Transactions with Affiliates), Section 3.9 (Change of Control), Section 3.10 (Additional Guarantors), clauses (a)(iii), (a)(iv) and (a)(v) and paragraphs (b), (c), (d) and (e) of Section 4.1 (Whenthe Company or Holdings May Merge or Otherwise Dispose of Assets), Article X (Guarantees) and Exhibit E (Form ofSupplemental Indenture in Respect of Subsidiary Guarantees), and all references thereto contained in the Indenture, in their entirety, with such Sections and references having no further force or effect.
(b) The Indenture is hereby amended to eliminate Sections 6.1(iii), (iv), (v), (vi),(vii) and (viii) (Events of Default), and all references thereto contained in Section 6.1 and elsewhere in the Indenture, in their entirety, and the occurrence of the events described in Sections 6.1(iii), (iv), (v), (vi), (vii) and (viii) shall no longer constitute Events of Default.
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(c) The failure to comply with the terms of any of the Sections of the Indenture set forth in clause (a) above shall no longer constitute a Default or an Event of Default under the Indenture and shall no longer have any other consequence under the Indenture.
(d) The Indenture is hereby amended to add the following provision as Section 12.18 to Article XII of the Indenture:
SECTION 12.18. Anti-Boycott.
(i) Each Holder, beneficial holder of the Notes and any affiliate of the foregoing persons (such persons, the “Subject Persons”) is prohibited from entering into or becoming subject to or bound by any boycott agreement, cooperation agreement, support agreement, lock-up agreement, coordination agreement or other similar agreement that restricts, limits, conditions or otherwise prohibits in any manner any Subject Person party thereto or otherwise bounds thereby from (i) purchasing or acquiring any newly- issued debt or securities issued by the Issuer or any of its affiliates (ii) making any loans to the Issuer or any of its affiliates, or (iii) transacting with the Issuer and its affiliates with respect to any existing Indebtedness of the Issuer and its affiliates, in the case of clauses (i), (ii) and (iii), from time to time after the date hereof (the “Boycott Agreement”). Moreover, any person that is party to or otherwise bound by a Boycott Agreement is prohibited from purchasing or otherwise acquiring the Notes.
(ii) Any Subject Person that enters into, becomes subject to or otherwise becomes bound by a Boycott Agreement (or if an affiliate thereof enters into, becomes subject to or otherwise becomes bound by a Boycott Agreement) shall be in breach of the Indenture and shall be liable to the Issuer for any damages at law or in equity that the Issuer and its affiliates may suffer as a result of such breach. Without prejudice to any remedies available to the Issuer, the Issuer may enforce the prohibition on Boycott Agreements through specific performance without the posting of any bond or otherwise.
(e) The Indenture is hereby amended to add the following provision as Section 2.20 to Article II of the Indenture:
SECTION 2.20. Transfer Restrictions.
(i) In no event may any Subject Person (a) transfer, offer, sell, contract to sell, assign, hypothecate, pledge, grant any option, right or warrant to purchase, or otherwise dispose of, or agree to dispose of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position with respect to, directly or indirectly, any of the Notes, (b) enter into a transaction that would have the same effect, or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of the Notes, whether any such transactions are to be settled by delivery of securities, in cash or otherwise, (c) engage in any “short sales” (as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, and all types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers) with respect to the Notes, or (d) publicly disclose the intention to take any of the foregoing actions or enter into any of the foregoing transactions.
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(ii) For the avoidance of doubt, in no event shall this provision prevent or apply to transfers of the Notes to the Issuer, nor any such transfer with the consent of the Issuer.
(f) The Indenture is hereby amended to add the following provision as Section 12.19 to Article XII of the Indenture:
SECTION 12.19. Certain Veto Rights. The Issuer shall have the right to name one law firm (in addition to the existing counsel to the dealer manager and solicitation agent for the Exchange Offer and Consent Solicitation on the Closing Date) that the Noteholders shall be permitted to retain as legal counsel or any similar role in any respect whatsoever in connection with the Notes or any transactions or documentation related thereto and each Noteholder accepts that the Issuer shall have no obligation to reimburse the Noteholders for any services provided by any other counsel unless otherwise consented to by the Issuer.
(g) All definitions set forth in Section 1.1 (Definitions) of the Indenture that relate to defined terms used solely in the Sections deleted by this Third Supplemental Indenture are hereby deleted in their entirety.
(h) All references to Sections of the Indenture amended by this Third Supplemental Indenture shall be to such Sections as amended by this Third Supplemental Indenture.
Section 2.2 Release of Guarantees.
(a) Each of the Guarantors shall be fully and unconditionally released from its Guarantee and all references thereto, including through the terms: Guarantors, Guarantor Obligations and Guarantor Subsidiaries, contained in the Indenture, in their entirety, shall have no further force or effect.
ARTICLE III
AMENDMENTSTO THE NOTES
Section 3.1 Amendments to Notes. The Notes are hereby amended to delete all provisions inconsistent with the amendments to the Indenture effected by this Third Supplemental Indenture.
Section 3.2 Endorsement and Change of Form of Notes. Any Notes authenticated and delivered after the close of business on the date that this Third Supplemental Indenture becomes effective may, at the sole discretion of the Company, be affixed to, stamped, imprinted or otherwise legended, with a notation as follows:
“The majority of the restrictive covenants of the Company and certain of the Events of Default and other provisions have been eliminated, and certain provisions related to anti-boycott provisions, additional transfer restrictions and certain veto rights have been added, as provided in the Third Supplemental Indenture, dated as of October 21, 2025. Reference is hereby made to said Third Supplemental Indenture, copies of which are on file with the Trustee, for a description of the amendments made therein.”
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ARTICLE IV
MISCELLANEOUS
Section 4.1 Effectiveness. The provisions of Article II and III of this Third Supplemental Indenture shall become effective immediately but shall not become operative until both (i) the Company pays the Total Consideration or the Exchange Consideration (each as defined in the Offering Memorandum), as applicable, as well as the Accrued Coupon Payment (as defined in the Offering Memorandum) to Holders who have validly tendered (and not validly withdrawn) Notes (along with the related consents) in accordance with the terms of the Offering Memorandum and (ii) the Company or counsel to the Company informs the Trustee in writing (which may be by e-mail) that the payments in clause (i) have been made.
Section 4.2 Ratification of Indenture; Third Supplemental Indenture Part of Indenture. Except as expressly amended and supplemented hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Third Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
Section 4.3 Governing Law. THIS THIRD SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE COMPANY, THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS THIRD SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 4.4 Severability. In case any provision in this Third Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
Section 4.5 Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Third Supplemental Indenture or for the recitals contained herein.
Section 4.6 The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Third Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company and the Guarantors and the rights, protections and indemnities afforded the Trustee under the Indenture shall apply to any action (or inaction) of the Trustee hereunder or in connection herewith. The Trustee is executing this Third Supplemental Indenture and performing hereunder solely in conclusive reliance on (i) the consents and direction of the consenting Holders who together constitute the Requisite Consents, (ii) the statements and representations of the Company hereunder and in the Officer’s Certificate and (iii) the Opinion of Counsel being delivered in connection herewith.
Section 4.7 Parties. Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this First Supplemental Indenture or the Indenture or any provision herein or therein contained.
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Section 4.8 Further Assurances. The parties hereto will execute and deliver such further instruments and perform such further acts as may be reasonably required to carry out the intent and purpose of this Third Supplemental Indenture and the Indenture as supplemented.
Section 4.9 Counterparts.
(a) The parties hereto may sign any number of copies of this Third Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Third Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Third Supplemental Indenture as to the parties hereto and may be used in lieu of the original Third Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
(b) The words “execution,” “signed,” “signature,” and words of like import in this Third Supplemental Indenture shall include images of manually executed signatures transmitted by facsimile, email or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code; provided that, notwithstanding anything herein to the contrary, the Trustee is not under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Trustee pursuant to procedures approved by the Trustee.
Section 4.10 Effect of Headings. The headings of the Articles and the Sections in this Third Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
Section 4.11 Successors. All agreements of the Company and the Guarantors, as applicable, in this Third Supplemental Indenture shall bind its successors. All agreements of the Trustee in the Indenture shall bind its successors.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed as of the date and year first above written.
| ISSUER: | |
|---|---|
| GETTY IMAGES, INC. | |
| By: | /s/ Kjelti Kellough |
| Name: | Kjelti Kellough |
| Title: | Senior Vice President, General <br><br>Counsel & Corporate Secretary |
| GUARANTORS: | |
| --- | --- |
| GETTY IMAGES HOLDINGS, INC. | |
| By: | /s/ Kjelti Kellough |
| Name: | Kjelti Kellough |
| Title: | Senior Vice President, General Counsel & Corporate Secretary |
| GETTY IMAGES (SEATTLE), INC. | |
| --- | --- |
| By: | /s/ Kjelti Kellough |
| Name: | Kjelti Kellough |
| Title: | Senior Vice President, General Counsel & Corporate Secretary |
| GETTY IMAGES (US), INC. | |
| --- | --- |
| By: | /s/ Kjelti Kellough |
| Name: | Kjelti Kellough |
| Title: | Senior Vice President, General Counsel & Corporate Secretary |
| GETTY IMAGES NEWS SERVICES (PRC), INC. | |
| --- | --- |
| By: | /s/ Kjelti Kellough |
| Name: | Kjelti Kellough |
| Title: | Senior Vice President, General Counsel & Corporate Secretary |
| TRUSTEE: | |
| --- | --- |
| WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee | |
| By: | /s/ Barry D. Somrock |
| Name: | Barry D. Somrock |
| Title: | Vice President |
[Signature Page to ThirdSupplemental Indenture]
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Exhibit 4.5
GETTY IMAGES, INC., as Company,
the GUARANTORS party hereto,
AND
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee and Notes Collateral Agent
$628,400,000 10.500% Senior Secured Notes due 2030
INDENTURE
Dated October 21, 2025
Table of Contents
| Page | ||
|---|---|---|
| ARTICLE I | DEFINITIONS AND INCORPORATION BY REFERENCE | 1 |
| SECTION 1.1. | Definitions | 1 |
| SECTION 1.2. | Other Definitions | 49 |
| SECTION 1.3. | Rules of Construction | 51 |
| SECTION 1.4. | Certain Compliance Calculations | 52 |
| ARTICLE II | THE NOTES | 53 |
| SECTION 2.1. | Form, Dating and Terms | 53 |
| SECTION 2.2. | Execution and Authentication | 59 |
| SECTION 2.3. | Registrar and Paying Agent | 59 |
| SECTION 2.4. | Paying Agent to Hold Money in Trust | 60 |
| SECTION 2.5. | Holder Lists | 60 |
| SECTION 2.6. | Transfer and Exchange | 60 |
| SECTION 2.7. | Temporary Notes | 63 |
| SECTION 2.8. | [Reserved] | 64 |
| SECTION 2.9. | [Reserved] | 64 |
| SECTION 2.10. | [Reserved] | 64 |
| SECTION 2.11. | Mutilated, Destroyed, Lost or Stolen Notes. | 64 |
| SECTION 2.12. | Outstanding Notes | 64 |
| SECTION 2.13. | Temporary Notes | 65 |
| SECTION 2.14. | Cancellation | 65 |
| SECTION 2.15. | Payment of Interest; Defaulted Interest | 65 |
| SECTION 2.16. | CUSIP and ISIN Numbers | 66 |
| SECTION 2.17. | Joint and Several Liability | 66 |
| ARTICLE III | COVENANTS | 67 |
| SECTION 3.1. | Payment of Notes | 67 |
| SECTION 3.2. | Limitation on Indebtedness | 67 |
| SECTION 3.3. | Limitation on Restricted Payments | 73 |
| SECTION 3.4. | Limitation on Restrictions on Distributions from Restricted<br> Subsidiaries. | 81 |
| SECTION 3.5. | Limitation on Sales of Assets and Subsidiary Stock | 83 |
| SECTION 3.6. | Limitation on Liens | 88 |
| SECTION 3.7. | Limitation on Guarantees. | 89 |
| SECTION 3.8. | Limitation on Affiliate Transactions | 90 |
| SECTION 3.9. | Change of Control. | 93 |
| SECTION 3.10. | Reports | 95 |
| SECTION 3.11. | Maintenance of Office or Agency | 98 |
| SECTION 3.12. | Existence | 98 |
| SECTION 3.13. | Permitted Activities of the Parent Guarantors | 98 |
| SECTION 3.14. | Priming Financing/Liability Management Transaction | 99 |
| SECTION 3.15. | Compliance Certificate | 99 |
| SECTION 3.16. | Amendments to Option Agreement. | 100 |
| SECTION 3.17. | Statement by Officers as to Default | 100 |
| SECTION 3.18. | Suspension of Certain Covenants on Achievement of Investment<br> Grade Status | 100 |
| SECTION 3.19. | Designation of Restricted and Unrestricted Subsidiaries. | 101 |
| SECTION 3.20. | After Acquired Property; Further Assurances | 101 |
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| Page | ||
|---|---|---|
| ARTICLE IV | SUCCESSOR COMPANY; SUCCESSOR PERSON | 102 |
| SECTION 4.1. | Merger, Amalgamation and Consolidation | 102 |
| ARTICLE V | REDEMPTION OF SECURITIES | 104 |
| SECTION 5.1. | Notices and Opinions to Trustee. | 104 |
| SECTION 5.2. | Selection of Notes to Be Redeemed or Purchased | 104 |
| SECTION 5.3. | Notice of Redemption | 104 |
| SECTION 5.4. | Effect of Notice of Redemption | 105 |
| SECTION 5.5. | Deposit of Redemption or Purchase Price | 106 |
| SECTION 5.6. | Notes Redeemed or Purchased in Part | 106 |
| SECTION 5.7. | Optional Redemption | 106 |
| SECTION 5.8. | Mandatory Redemption | 107 |
| SECTION 5.9. | No Mandatory Redemption or Sinking Fund | 108 |
| ARTICLE VI | DEFAULTS AND REMEDIES | 108 |
| SECTION 6.1. | Events of Default. | 108 |
| SECTION 6.2. | Acceleration | 112 |
| SECTION 6.3. | Other Remedies | 113 |
| SECTION 6.4. | Waiver of Past Defaults | 113 |
| SECTION 6.5. | Control by Majority | 113 |
| SECTION 6.6. | Limitation on Suits | 113 |
| SECTION 6.7. | Rights of Holders to Receive Payment | 114 |
| SECTION 6.8. | Collection Suit by Trustee | 114 |
| SECTION 6.9. | Trustee May File Proofs of Claim | 114 |
| SECTION 6.10. | Priorities | 114 |
| SECTION 6.11. | Undertaking for Costs | 115 |
| ARTICLE VII | TRUSTEE | 115 |
| SECTION 7.1. | Duties of Trustee. | 115 |
| SECTION 7.2. | Rights of Trustee | 116 |
| SECTION 7.3. | Individual Rights of Trustee | 118 |
| SECTION 7.4. | Trustee’s Disclaimer | 118 |
| SECTION 7.5. | Notice of Defaults | 118 |
| SECTION 7.6. | Compensation and Indemnity | 118 |
| SECTION 7.7. | Replacement of Trustee | 119 |
| SECTION 7.8. | Successor Trustee by Merger | 120 |
| SECTION 7.9. | Eligibility; Disqualification | 120 |
| SECTION 7.10. | Trustee’s Application for Instruction from the<br> Company | 120 |
| SECTION 7.11. | Collateral Documents; Intercreditor Agreements | 120 |
| SECTION 7.12. | Escrow Authorization | 120 |
| ARTICLE VIII | LEGAL DEFEASANCE AND COVENANT DEFEASANCE | 121 |
| SECTION 8.1. | Option to Effect Legal Defeasance or Covenant Defeasance;<br> Defeasance | 121 |
| SECTION 8.2. | Legal Defeasance and Discharge | 121 |
| SECTION 8.3. | Covenant Defeasance | 121 |
| SECTION 8.4. | Conditions to Legal or Covenant Defeasance | 122 |
| SECTION 8.5. | Deposited Money and U.S. Government Obligations to<br> be Held in Trust; Other Miscellaneous Provisions | 123 |
| SECTION 8.6. | Repayment to the Company | 123 |
| SECTION 8.7. | Reinstatement | 123 |
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| Page | ||
|---|---|---|
| ARTICLE IX | AMENDMENTS | 123 |
| SECTION 9.1. | Without Consent of Holders | 123 |
| SECTION 9.2. | With Consent of Holders | 125 |
| SECTION 9.3. | [Reserved] | 126 |
| SECTION 9.4. | Revocation and Effect of Consents and Waivers | 126 |
| SECTION 9.5. | Notation on or Exchange of Notes | 126 |
| SECTION 9.6. | Trustee and Notes Collateral Agent to Sign Amendments | 127 |
| ARTICLE X | GUARANTEE | 127 |
| SECTION 10.1. | Guarantee | 127 |
| SECTION 10.2. | Limitation on Liability; Termination, Release and<br> Discharge | 128 |
| SECTION 10.3. | Right of Contribution | 129 |
| SECTION 10.4. | No Subrogation | 129 |
| ARTICLE XI | SATISFACTION AND DISCHARGE | 130 |
| SECTION 11.1. | Satisfaction and Discharge | 130 |
| SECTION 11.2. | Application of Trust Money | 130 |
| ARTICLE XII | COLLATERAL | 131 |
| SECTION 12.1. | Collateral Documents | 131 |
| SECTION 12.2. | Perfection and Non-Perfection of Security Interests<br> in Collateral | 131 |
| SECTION 12.3. | Release of Liens | 131 |
| SECTION 12.4. | Suits to Protect the Collateral | 132 |
| SECTION 12.5. | Authorization of Receipt of Funds by the Trustee Under<br> the Collateral Documents | 133 |
| SECTION 12.6. | Purchaser Protected | 133 |
| SECTION 12.7. | Powers Exercisable by Receiver or Trustee | 133 |
| SECTION 12.8. | Release Upon Termination of the Company’s obligations | 133 |
| SECTION 12.9. | Notes Collateral Agent | 133 |
| SECTION 12.10. | Designations | 139 |
| SECTION 12.11. | No Impairment of the Security Interests | 139 |
| SECTION 12.12. | Insurance | 139 |
| ARTICLE XIII | ESCROW MATTERS | 139 |
| SECTION 13.1. | Escrow Account | 139 |
| SECTION 13.2. | Release of Escrowed Property | 140 |
| SECTION 13.3. | Special Mandatory Redemption | 140 |
| SECTION 13.4. | Trustee Direction to Execute Escrow Agreement. | 140 |
| ARTICLE XIV | MISCELLANEOUS | 140 |
| SECTION 14.1. | Notices. | 140 |
| SECTION 14.2. | [Reserved] | 141 |
| SECTION 14.3. | Certificate and Opinion as to Conditions Precedent | 141 |
| SECTION 14.4. | Statements Required in Certificate and Opinion | 142 |
| SECTION 14.5. | When Notes Disregarded | 142 |
| SECTION 14.6. | Rules by Trustee, Paying Agent and Registrar | 142 |
| SECTION 14.7. | Legal Holidays | 142 |
| SECTION 14.8. | Governing Law | 142 |
| SECTION 14.9. | Jurisdiction | 142 |
| SECTION 14.10. | Waivers of Jury Trial | 143 |
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| Page | ||
|---|---|---|
| SECTION 14.11. | USA PATRIOT Act | 143 |
| SECTION 14.12. | No Recourse Against Others | 143 |
| SECTION 14.13. | Successors | 143 |
| SECTION 14.14. | Multiple Originals | 143 |
| SECTION 14.15. | [Reserved] | 143 |
| SECTION 14.16. | Table of Contents; Headings | 143 |
| SECTION 14.17. | Force Majeure | 144 |
| SECTION 14.18. | Severability | 144 |
| SECTION 14.19. | Intercreditor Agreements | 144 |
| EXHIBIT A | Form of Global Restricted Note | |
| --- | --- | |
| EXHIBIT B | Form of Supplemental Indenture | |
| EXHIBIT C | [Reserved] | |
| EXHIBIT D | Form of Certificate to be Delivered in Connection with<br> Transfers Pursuant to Regulation S | |
| EXHIBIT E | Form of Certificate to be Delivered in Connection with<br> Transfers to IAIs | |
| EXHIBIT F | Form of Special Mandatory Redemption Notice |
-iv-
INDENTURE, dated as of October 21, 2025, by and among GETTY IMAGES, INC., a Delaware corporation (the “Company” or the “Issuer”), the Guarantors party hereto from time to time, and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as Trustee and as Notes Collateral Agent.
W I T N E S S E T H
WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of (i) its $628,400,000 10.500% Senior Secured Notes due 2030 (the “Initial Notes”), each as issued on the date hereof and (ii) any additional Notes (the “Additional Notes” and, together with the Initial Notes, the “Notes”) that may be issued after the Issue Date;
WHEREAS, the Company and the Guarantors party hereto on the date hereof have duly authorized the execution and delivery of this Indenture;
WHEREAS, upon consummation of the Merger (as defined herein), in accordance with the terms set forth herein, the Notes will be guaranteed on a senior secured basis by each of Shutterstock (as defined herein) and each of its subsidiaries that executes a supplemental indenture in the form attached hereto as Exhibit B; and
WHEREAS, all things necessary (i) to make the Notes, when executed and duly issued by the Company and authenticated and delivered hereunder, the valid obligations of the Company and each Guarantor and (ii) to make this Indenture a valid agreement of the Company and each Guarantor have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders, as follows:
Article I DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
“Acquired EBITDA” means, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary (any of the foregoing, a “Pro Forma Entity”) for any period, the amount for such period of Consolidated EBITDA of such Pro Forma Entity (determined as if references to the Company and its Restricted Subsidiaries in the definition of the term “Consolidated EBITDA” were references to such Pro Forma Entity and its Subsidiaries which will become Restricted Subsidiaries), all as determined on a consolidated basis for such Pro Forma Entity.
“Acquired Indebtedness” means with respect to any Person (x) Indebtedness of any other Person or any of its Subsidiaries existing at the time such other Person becomes a Restricted Subsidiary or merges or amalgamates with or into or consolidates or otherwise combines with the Company or any Restricted Subsidiary and (y) Indebtedness secured by a Lien encumbering any asset acquired by such Person. Acquired Indebtedness shall be deemed to have been incurred, with respect to clause (x) of the preceding sentence, on the date such Person becomes a Restricted Subsidiary or on the date of the relevant merger, amalgamation, consolidation, acquisition or other combination.
“Additional Assets” means:
(1) any property or assets (other than Capital Stock) used or to be used by the Company, a Restricted Subsidiary or otherwise useful in a Similar Business (it being understood that capital expenditures on property or assets already used in a Similar Business or to replace any property or assets that are the subject of such Asset Disposition shall be deemed an investment in Additional Assets);
(2) the Capital Stock of a Person that is engaged in a Similar Business and becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock by the Company or a Restricted Subsidiary; or
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(3) Capital Stock constituting a minority interest in any Person that at such time is a Restricted Subsidiary.
“Affiliate” of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“AIH” means Abe Investment Holdings, Inc., the direct parent of the Company.
“Applicable Intercreditor Arrangements” means customary intercreditor arrangements (it being understood that (x) the First Lien Intercreditor Agreement (or any substantially similar agreement) and (y) any intercreditor arrangements satisfactory to the Credit Agreement Collateral Agent, are “Applicable Intercreditor Arrangements”).
“Applicable Premium” means the greater of (A) 1.0% of the principal amount of such Note and (B) on any Redemption Date, the excess (to the extent positive) of:
(a) the present value at such Redemption Date of (i) the redemption price of such Note at November 15, 2027 (such redemption price (expressed in percentage of principal amount) being set forth in the table in Section 5.7(c) (excluding accrued but unpaid interest, if any)), plus (ii) all required interest payments due on such Note to and including such date set forth in clause (i) (excluding accrued but unpaid interest, if any), computed upon the Redemption Date using a discount rate equal to the Applicable Treasury Rate at such Redemption Date plus 50 basis points; over
(b) the outstanding principal amount of such Note;
in each case, as calculated by the Company or on behalf of the Company by such Person as the Company shall designate. The Trustee shall have no duty to calculate or verify the calculations of the Applicable Premium.
“Applicable Treasury Rate” means, the weekly average for each Business Day during the most recent week that has ended at least two Business Days prior to the Redemption Date of the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the Federal Reserve Statistical Release H.15 (or, if such statistical release is not so published or available, any publicly available source of similar market data selected by the Company in good faith)) most nearly equal to the period from the Redemption Date to November 15, 2027; provided, however, that if the period from the Redemption Date to November 15, 2027 is not equal to the constant maturity of a United States Treasury security for which a yield is given, the Applicable Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the yields of United States Treasury securities for which such yields are given, except that if the period from the Redemption Date to such applicable date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.
“Asset Disposition” means:
(a) the voluntary sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of property or assets (including by way of a Sale and Leaseback Transaction) of the Company or any of its Restricted Subsidiaries (in each case other than Capital Stock of the Company) (each referred to in this definition as a “disposition”); or
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(b) the issuance or sale of Capital Stock of any Restricted Subsidiary (other than Preferred Stock or Disqualified Stock of Restricted Subsidiaries issued in compliance with Section 3.2 or directors’ qualifying shares and shares issued to foreign nationals as required under applicable law), whether in a single transaction or a series of related transactions; in each case, other than:
(1) a disposition by the Company or a Restricted Subsidiary to the Company or a Restricted Subsidiary, including pursuant to any Intercompany License Agreement;
(2) a disposition of cash, Cash Equivalents or Investment Grade Securities, including any marketable securities portfolio owned by the Company and its Subsidiaries on the Issue Date;
(3) a disposition of inventory, goods or other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or industry norms or held for sale or no longer used in the ordinary course of business, including any disposition of disposed, abandoned or discontinued operations;
(4) a disposition of obsolete, worn-out, uneconomic, damaged, non-core or surplus property, equipment or other assets or property, equipment or other assets that are no longer economically practical or commercially desirable to maintain or used or useful in the business of the Company and its Restricted Subsidiaries whether now or hereafter owned or leased or acquired in connection with an acquisition or used or useful in the conduct of the business of the Company and its Restricted Subsidiaries (including by ceasing to enforce, allowing the lapse, abandonment or invalidation of or discontinuing the use or maintenance of or putting into the public domain any intellectual property that is, in the reasonable judgment of the Company, no longer used or useful, or economically practicable to maintain, or in respect of which the Company determines in its reasonable judgment that such action or inaction is desirable);
(5) transactions permitted under Article IV or a transaction that constitutes a Change of Control;
(6) an issuance of Capital Stock by a Restricted Subsidiary to the Company or to another Restricted Subsidiary or as part of or pursuant to an equity incentive or compensation plan approved by the Board of Directors of the Company;
(7) any dispositions of Capital Stock, properties or assets in a single transaction or series of related transactions with a fair market value (as determined in good faith by the Company) of less than the greater of $50.0 million and 15.0% of LTM EBITDA;
(8) any Restricted Payment that is permitted to be made, and is made, under Section 3.3 and the making of any Permitted Payment or Permitted Investment or, solely for purposes of Section 3.5(a)(3), asset sales, the proceeds of which are used to make such Restricted Payments or Permitted Investments;
(9) dispositions in connection with any Permitted Liens, Permitted Intercompany Activities, Permitted Tax Restructuring or related transactions;
(10) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or consistent with past practice or industry norms or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(11) conveyances, sales, transfers, licenses, sublicenses, cross-licenses or other dispositions of intellectual property, software or other general intangibles and licenses, sublicenses, cross-licenses (including the provision of software under an open source license), leases or subleases of other property, in each case, in the ordinary course of business or consistent with past practice or industry norms or pursuant to a research or development agreement in which the counterparty to such agreement receives a license in the intellectual property or software that result from such agreement;
(12) the lease, assignment, license, sublease or sublicense of any real or personal property in the ordinary course of business or consistent with past practice or industry norms;
(13) foreclosure, condemnation, expropriation, forced disposition or any similar action with respect to any property or other assets or the granting of Liens not prohibited by this Indenture;
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(14) the sale, discount or other disposition (with or without recourse, and on customary or commercially reasonable terms and for credit management purposes) of inventory, accounts receivable or notes receivable in the ordinary course of business or consistent with past practice or industry norms, or the conversion or exchange of accounts receivable for notes receivable;
(15) any issuance or sale of Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary or any other disposition of Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary or an Immaterial Subsidiary;
(16) any disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than the Company or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition;
(17) (i) dispositions of property to the extent that such property is exchanged for credit against the purchase price of similar replacement property that is promptly purchased, (ii) dispositions of property to the extent that the proceeds of such disposition are promptly applied to the purchase price of such replacement property (which replacement property is actually promptly purchased) and (iii) to the extent allowable under Section 1031 of the Code or comparable law or regulation, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(18) any disposition of Securitization Assets or Receivables Assets, or participations therein, in connection with any Qualified Securitization Financing or Receivables Facility, or the disposition of an account receivable in connection with the collection or compromise thereof in the ordinary course of business or consistent with past practice or industry norms;
(19) any financing transaction with respect to property constructed, acquired, leased, renewed, relocated, expanded, replaced, repaired, maintained, upgraded or improved (including any reconstruction, refurbishment, renovation and/or development of real property) by the Company or any Restricted Subsidiary after the Issue Date, including Sale and Leaseback Transactions and asset securitizations, not prohibited by this Indenture;
(20) sales, transfers or other dispositions of Investments in joint ventures or similar entities to the extent required by, or made pursuant to customary buy/sell arrangements between, the parties to such joint venture set forth in joint venture arrangements and similar binding arrangements;
(21) any surrender or waiver of contractual rights or the settlement, release, surrender or waiver of contractual, tort, litigation or other claims of any kind;
(22) the unwinding of any Cash Management Obligations or Hedging Obligations;
(23) transfers of property or assets subject to Casualty Events upon receipt of the net proceeds of such Casualty Event; provided that any Cash Equivalents received by the Company or any of its Restricted Subsidiaries in respect of such Casualty Event shall be deemed to be Net Available Cash of an Asset Disposition, and such Net Available Cash shall be applied in accordance with Section 3.5;
(24) any disposition to a Captive Insurance Subsidiary;
(25) any sale of property or assets, if the acquisition of such property or assets was financed with Excluded Contributions and the proceeds of such sale are used to make a Restricted Payment pursuant to Section 3.3(b)(10)(ii);
(26) the disposition of any assets (including Capital Stock) (i) acquired in a transaction after the Issue Date, which assets are not useful in the core or principal business of the Company and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the reasonable determination of the Company to consummate any acquisition;
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(27) any sale, transfer or other disposition to affect the formation of any Subsidiary that is a Delaware Divided LLC; provided that upon formation of such Delaware Divided LLC, such Delaware Divided LLC shall be a Restricted Subsidiary if the entity was a Restricted Subsidiary prior to the formation of such Delaware Divided LLC;
(28) any disposition of (i) non-revenue producing assets to a Person who is providing services related to such assets, the provision of which have been or are to be outsourced by the Company or any Restricted Subsidiary to such Person or (ii) de minimis amounts of equipment provided to employees of the Company or any Subsidiary;
(29) any disposition made on or prior to the Merger Closing Date to consummate the Merger; and
(30) any disposition made pursuant to the Option Agreement.
In the event that a transaction (or any portion thereof) meets the criteria of a permitted Asset Disposition and would also be a Permitted Investment or an Investment permitted under Section 3.3, the Company, in its sole discretion, will be entitled to divide, classify and reclassify such transaction (or a portion thereof) as one or more types of Asset Dispositions and/or one or more of the types of Permitted Investments or Investments permitted under Section 3.3.
“Associate” means (i) any Person engaged in a Similar Business of which the Company or its Restricted Subsidiaries are the legal and beneficial owners of between 20% and 50% of all outstanding Voting Stock and (ii) any joint venture entered into by the Company or any Restricted Subsidiary.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereinafter in effect, or any successor statute.
“Bankruptcy Law” means the Bankruptcy Code and any other federal, state or foreign law providing for the relief of debtors, or any arrangement, reorganization, liquidation, insolvency, examinership, receivership, moratorium, assignment for the benefit of creditors, any other marshalling of the assets or liabilities of any Grantor, or similar law affecting creditors’ rights generally.
“Board of Directors” means (i) with respect to the Company or any corporation, the board of directors or managers, as applicable, of the corporation, or any duly authorized committee thereof; (ii) with respect to any partnership, the board of directors or other governing body of the general partner, as applicable, of the partnership or any duly authorized committee thereof; (iii) with respect to a limited liability company, the managing member or members or any duly authorized controlling committee thereof; and (iv) with respect to any other Person, the board or any duly authorized committee of such Person serving a similar function. Whenever any provision 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 on any such Board of Directors (whether or not such action or approval is taken as part of a formal board meeting or as a formal board approval). Unless the context requires otherwise, Board of Directors means the Board of Directors of the Company.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary (or comparable officer) of a Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day” means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York, United States or in the jurisdiction of the place of payment are authorized or required by law to close. When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day and such extension of time shall not be reflected in computing interest or fees, as the case may be.
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“Business Successor” means (i) any former Subsidiary of the Company and (ii) any Person that, after the Issue Date, has acquired, merged or consolidated with a Subsidiary of the Company (that results in such Subsidiary ceasing to be a Subsidiary of the Company), or acquired (in one transaction or a series of transactions) all or substantially all of the property and assets or business of a Subsidiary or assets constituting a business unit, line of business or division of a Subsidiary of the Company.
“Capital Stock” of any Person means any and all shares of, rights to purchase or acquire, warrants, options or depositary receipts for, or other equivalents of, or partnership or other interests in (however designated), equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into, or exchangeable for, such equity.
“Capitalized Lease Obligations” means an obligation that is required to be classified and accounted for as a capitalized lease (and, for the avoidance of doubt, not a straight-line or operating lease) for financial reporting purposes in accordance with GAAP. The amount of Indebtedness represented by such obligation will be the capitalized amount of such obligation at the time any determination thereof is to be made as determined in accordance with GAAP, and the Stated Maturity thereof will be the date of the last payment of rent or any other amount due under such lease prior to the first date such lease may be terminated without penalty; provided that all obligations of the Company and its Restricted Subsidiaries that are or would be characterized as an operating lease as determined in accordance with GAAP as in effect on January 1, 2015 (whether or not such operating lease was in effect on such date) shall continue to be accounted for as an operating lease (and not as a Capitalized Lease Obligation) for purposes of this Indenture regardless of any change in GAAP following January 1, 2015 (that would otherwise require such obligation to be characterized or recharacterized as a Capitalized Lease Obligation).
“Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by a Person and its Restricted Subsidiaries during such period in respect of licensed or purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of a Person and its Restricted Subsidiaries.
“Captive Insurance Subsidiary” means (i) any Subsidiary of the Company operating for the purpose of (a) insuring the businesses, operations or properties owned or operated by any Parent Entity, the Company or any of its Subsidiaries, including their future, present or former employees, directors, officers, managers, contractors, consultants or advisors (or their respective Controlled Investment Affiliates or Immediate Family Members), and related benefits and/or (b) conducting any activities or business incidental thereto (it being understood and agreed that activities which are relevant or appropriate to qualify as an insurance company for U.S. federal or state income tax purposes shall be considered “activities or business incidental thereto”) or (ii) any Subsidiary of any such insurance subsidiary operating for the same purpose described in clause (i) above.
“Cash Equivalents” means:
| (1) | (a)<br> Dollars and, with respect to any Foreign Subsidiaries, other currencies held by such Foreign<br> Subsidiary, in each case in the ordinary course of business; |
|---|---|
| (2) | securities<br> issued or unconditionally guaranteed or insured by the United States government or any agency<br> or instrumentality thereof, in each case having maturities of not more than 24 months from<br> the date of acquisition thereof; |
| --- | --- |
| (3) | securities<br> issued by any state, commonwealth or territory of the United States or any political subdivision<br> or taxing authority of any such state, commonwealth or territory or any public instrumentality<br> thereof or any political subdivision or taxing authority of any such state, commonwealth<br> or territory or any public instrumentality thereof having maturities of not more than 24<br> months from the date of acquisition thereof and, at the time of acquisition, having an investment<br> grade rating generally obtainable from either S&P or Moody’s (or, if at any time<br> neither S&P nor Moody’s shall be rating such obligations, then from another nationally<br> recognized rating service); |
| --- | --- |
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| (4) | commercial<br> paper or variable or fixed rate notes issued by or guaranteed by any lender under the Credit<br> Agreement or any bank holding company owning any lender under the Credit Agreement; |
|---|---|
| (5) | commercial<br> paper or variable or fixed rate notes maturing no more than 12 months after the date of creation<br> thereof and, at the time of acquisition, having an investment grade a rating generally obtainable<br> from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s<br> shall be rating such obligations, an equivalent rating from another nationally recognized<br> rating service); |
| --- | --- |
| (6) | time<br> deposits with, or domestic and eurodollar certificates of deposit or bankers’ acceptances<br> maturing no more than two years after the date of acquisition thereof issued by, any lender<br> under the Credit Agreement or any other bank having combined capital and surplus of not less<br> than $250.0 million in the case of domestic banks and $100.0 million (or the Dollar equivalent<br> thereof) in the case of foreign banks; |
| --- | --- |
| (7) | repurchase<br> agreements with a term of not more than 30 days for underlying securities of the type described<br> in clauses (2), (3) and (6) above entered into with any bank meeting the qualifications specified<br> in clause (6) above or securities dealers of recognized national standing; |
| --- | --- |
| (8) | marketable<br> short-term money market and similar securities having a rating of at least A-2 or P-2 from<br> either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall<br> be rating such obligations, an equivalent rating from another nationally recognized rating<br> service); |
| --- | --- |
| (9) | shares<br> of investment companies that are registered under the Investment Company Act of 1940 and<br> invest solely in one or more of the types of securities described in clauses (1) through<br> (8) above; |
| --- | --- |
| (10) | any<br> investment company, money market, enhanced high yield, pooled or other investment fund investing<br> 90% or more of its assets in instruments of the types specified in clauses (1) through (9); |
| --- | --- |
| (11) | in<br> the case of investments by any Foreign Subsidiary or investments made in a country outside<br> the United States, other customarily utilized high-quality investments in the country where<br> such Foreign Subsidiary is located or in which such investment is made; and |
| --- | --- |
| (12) | solely<br> with respect to any Captive Insurance Subsidiary, any investment that a Captive Insurance<br> Subsidiary is not prohibited to make in accordance with applicable law. |
| --- | --- |
For the avoidance of doubt, any items identified as Cash Equivalents under this definition will be deemed to be Cash Equivalents for all purposes under this Indenture regardless of the treatment of such items under GAAP.
“Cash Management Obligations” means (1) obligations in respect of any overdraft and related liabilities arising from treasury, depository, cash pooling arrangements, electronic fund transfer, treasury services and cash management services, including controlled disbursement services, working capital lines, lines of credit, overdraft facilities, foreign exchange facilities, deposit and other accounts and merchant services, or other cash management arrangements or any automated clearinghouse arrangements, (2) other obligations in respect of netting or setting off arrangements, credit, debit or purchase card programs, stored value card and similar arrangements and (3) obligations in respect of any other services related, ancillary or complementary to the foregoing (including any overdraft and related liabilities arising from treasury, depository, cash pooling arrangements and cash management services, corporate credit and purchasing cards and related programs or any automated clearinghouse transfers of funds).
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“Casualty Event” means any event that gives rise to the receipt by the Company or any Restricted Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, assets or real property (including any improvements thereon) to replace or repair such equipment, assets or real property.
“CFC” means any Subsidiary of the Company that is a “controlled foreign corporation” within the meaning of Section 957 of the Code.
“Change of Control” means:
(1) the Company becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Issue Date), other than one or more Permitted Holders or a Parent Entity, that is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 of the Exchange Act as in effect on the Issue Date) of more than 50% of the total voting power of the Voting Stock of the Company; provided that (x) so long as the Company is a Subsidiary of any Parent Entity, no Person shall be deemed to be or become a beneficial owner of more than 50% of the total voting power of the Voting Stock of the Company unless such Person shall be or become a beneficial owner of more than 50% of the total voting power of the Voting Stock of such Parent Entity (other than a Parent Entity that is a Subsidiary of another Parent Entity) and (y) any Voting Stock of which any Permitted Holder is the beneficial owner shall not in any case be included in any Voting Stock of which any such Person is the beneficial owner; or
(2) the sale or transfer, in one or a series of related transactions, of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, to a Person (other than the Company or any of its Restricted Subsidiaries or one or more Permitted Holders) and any “person” (as defined in clause (1) above), other than one or more Permitted Holders or any Parent Entity, is or becomes the “beneficial owner” (as so defined) of more than 50% of the total voting power of the Voting Stock of the transferee Person in such sale or transfer of assets, as the case may be; provided that (x) so long as the Company is a Subsidiary of any Parent Entity, no Person shall be deemed to be or become a beneficial owner of more than 50% of the total voting power of the Voting Stock of the Company unless such Person shall be or become a beneficial owner of more than 50% of the total voting power of the Voting Stock of such Parent Entity (other than a Parent Entity that is a Subsidiary of another Parent Entity) and (y) any Voting Stock of which any Permitted Holder is the beneficial owner shall not in any case be included in any Voting Stock of which any such Person is the beneficial owner; or
(3) for any reason whatsoever, AIH ceases to own, directly or indirectly, 100% of the Equity Interests of the Company.
Notwithstanding the preceding or any provision of Section 13d-3 of the Exchange Act, (i) a Person or group shall not be deemed to beneficially own Voting Stock subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the Voting Stock in connection with the transactions contemplated by such agreement, (ii) if any group includes one or more Permitted Holders, the issued and outstanding Voting Stock of the Company owned, directly or indirectly, by any Permitted Holders that are part of such group shall not be treated as being beneficially owned by such group or any other member of such group for purposes of determining whether a Change of Control has occurred, (iii) a Person or group will not be deemed to beneficially own the Voting Stock of another Person as a result of its ownership of Voting Stock or other securities of such other Person’s parent entity (or related contractual rights) unless it owns 50% or more of the total voting power of the Voting Stock entitled to vote for the election of directors of such parent entity having a majority of the aggregate votes on the board of directors (or similar body) of such parent entity and (iv) 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.
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“Code” means the United States Internal Revenue Code of 1986, as amended.
“Collateral” means the property subject or purported to be subject to a Lien in favor of the Notes Collateral Agent, on behalf of the Notes Secured Parties, under the Collateral Documents, and any other property, real or personal, tangible or intangible, now existing or hereafter acquired, that is subject to a Lien in favor of the Notes Collateral Agent, on behalf of the Notes Secured Parties, to secure the Notes Obligations.
“Collateral Documents” means, collectively, any security agreements (including the Notes Security Agreement), hypothecs, intellectual property security agreements, mortgages, collateral assignments, security agreement supplements, pledge agreements (including the Notes Pledge Agreement) or any similar agreements and each of the other agreements, instruments or documents that create or purport to create a Lien in favor of the Notes Collateral Agent for the benefit of the Notes Secured Parties, in all or any portion of the Collateral, as amended, extended, renewed, restated, refunded, replaced, refinanced, supplemented, modified or otherwise changed from time to time.
“Common Equity Offering” means the issuance of partnership units of Griffey Investors, L.P., a Delaware limited partnership, on February 19, 2019.
“Company” has the meaning assigned to such term in the preamble hereto.
“Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period, plus:
(a) without duplication and to the extent already deducted (and not added back) in arriving at such Consolidated Net Income (or, in the case of amounts pursuant to clauses (xi), (xv), (xvi), (xvii), (xviii) or (xix) below, to the extent not already included in such Consolidated Net Income), the sum of the following amounts for such period:
(i) total interest expense and, to the extent not reflected in such total interest expense, any losses on Swap Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, net of interest income and gains on such Swap Obligations or such derivative instruments, and bank and letter of credit fees and costs of surety bonds in connection with financing activities,
(ii) provision for taxes based on income, profits or capital, including federal, foreign, state, franchise, excise and similar taxes paid or accrued during such period (including in respect of repatriated funds),
(iii) depreciation and amortization (including amortization of intangible assets established through purchase accounting and amortization of deferred financing fees or costs),
(iv) Non-Cash Charges (provided that, in each case, if any Non-Cash Charge represents an accrual or reserve for any potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent),
(v) extraordinary losses,
(vi) unusual or non-recurring charges (including any unusual or non-recurring operating expenses directly attributable to the implementation of cost savings initiatives), severance costs, relocation costs, integration and facilities’ opening costs, Public Company Costs, signing costs, retention or completion bonuses, transition costs, costs related to closure/consolidation of facilities, costs associated with renegotiation of rents, costs associated with tax projects/audits and costs consisting of professional, consulting or other fees relating to any of the foregoing,
(vii) restructuring charges, accruals or reserves (including restructuring costs related to acquisitions after the Issue Date),
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(viii) the amount of any minority interest expense consisting of Subsidiary income attributable to minority equity interests of third parties in any non-wholly owned Subsidiary,
(ix) (A) the amount of management, monitoring, consulting and advisory fees, indemnities and related expenses paid or accrued in such period to (or on behalf of) Permitted Holders or any of their respective Affiliates and (B) the amount of expenses relating to payments made to option holders (or employees holding other rights tied to the equity value of AIH or any of its direct or indirect parent companies), including those payments of AIH or any of its direct or indirect parent companies in connection with, or as a result of, any distribution being made to shareholders of such Person or its direct or indirect parent companies, which payments are being made to compensate such option holders as though they were shareholders at the time of, and entitled to share in, such distribution,
(x) losses on asset sales, disposals or abandonments (other than asset sales, disposals or abandonments in the ordinary course of business),
(xi) the amount of “run rate” cost savings projected by the Company in good faith (which determination shall be conclusive) to be realized as a result of specified actions taken or to be taken, in either case within 6 months after the consummation of any acquisition or operational change (which cost savings shall be added to Consolidated EBITDA until fully realized and calculated on a pro forma basis as though such cost savings had been realized on the first day of the relevant period), net of the amount of actual benefits realized from such actions; provided that (A) such cost savings are reasonably identifiable and factually supportable, (B) no cost savings shall be added pursuant to this clause (xi) to the extent duplicative of any expenses or charges relating to such cost savings that are included in clauses (vi) and (vii) above and (C) amounts included in determining Consolidated EBITDA pursuant to this clause (xi) shall not, in the aggregate, exceed 20.0% of Consolidated EBITDA (prior to giving effect to such adjustments) for such period,
(xii) the amount of any losses from discontinued operations,
(xiii) any non-cash loss attributable to the mark-to-market movement in the valuation of Swap Obligations (excluding Swap Obligations entered into for the purpose of hedging against fluctuations in the price or availability of any commodity) (to the extent the cash impact resulting from such loss has not been realized) or other derivative instruments pursuant to Accounting Standards Codification 815,
(xiv) any loss relating to amounts paid in cash prior to the stated settlement date of any Swap Obligation (excluding Swap Obligations entered into for the purpose of hedging against fluctuations in the price or availability of any commodity) that has been reflected in Consolidated Net Income for such period,
(xv) any gain relating to Swap Obligations (excluding Swap Obligations entered into for the purpose of hedging against fluctuations in the price or availability of any commodity) associated with transactions realized in the current period that has been reflected in Consolidated Net Income in prior periods and excluded from Consolidated EBITDA pursuant to clauses (b)(v) and (b)(vi) below,
(xvi) cash receipts (or any netting arrangements resulting in reduced cash expenses) not included in Consolidated EBITDA in any period to the extent non-cash gains relating to such receipts were deducted in the calculation of Consolidated EBITDA pursuant to paragraph (b) below for any previous period and not added back,
(xvii) any expenses, charges or losses that are covered by indemnification, refunding or other reimbursement provisions in connection with any Investment, acquisition or any sale, conveyance, transfer or other disposition of assets permitted hereunder, to the extent actually reimbursed or paid, or, so long as the Company has received notification from the applicable Person that it intends to reimburse or pay such expenses, charges or losses; provided that to the extent that such amount is not in fact reimbursed or paid within 18 months of the date of such notification, any such amount not paid within such 18 month period that was added back pursuant to this clause (xvii) shall be deducted in the next period to the extent not so reimbursed or paid, such expenses, charges or losses,
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(xviii) to the extent covered by insurance and actually reimbursed or paid, or, so long as the Company has made a determination that such amount will in fact be reimbursed or paid by the insurer and only to the extent that such amount is in fact reimbursed or paid within 18 months of the date of such determination (with a deduction for any amount so added back to the extent not so reimbursed or paid within such 18 month period), expenses, charges or losses with respect to liability or casualty event or business interruption; plus
(xix) the amount necessary to account for any adjustments on or prior to March 31, 2021, necessary to address the effects of changes in revenue recognition requirements pursuant to ASC 606 (as determined in good faith by the Company, which determination shall be conclusive) during such period;
less
(b) without duplication and to the extent included in arriving at such Consolidated Net Income (or, in the case of amounts pursuant to clauses (vii) and (viii) below, to the extent not already deducted from Consolidated Net Income), the sum of the following amounts for such period:
(i) extraordinary gains and unusual or non-recurring gains,
(ii) non-cash gains,
(iii) gains on asset sales, disposals or abandonments (other than asset sales, disposals or abandonments in the ordinary course of business),
(iv) the amount of any gain from discontinued operations,
(v) any non-cash gain attributable to the mark-to-market movement in the valuation of Swap Obligations (excluding Swap Obligations entered into for the purpose of hedging against fluctuations in the price or availability of any commodity) (to the extent the cash impact resulting from such gain has not been realized) or other derivative instruments pursuant to Accounting Standards Codification 815,
(vi) any gain relating to amounts received in cash prior to the stated settlement date of any Swap Obligation (excluding Swap Obligations entered into for the purpose of hedging against fluctuations in the price or availability of any commodity) that has been reflected in Consolidated Net Income in such period,
(vii) any loss relating to Swap Obligations (excluding Swap Obligations entered into for the purpose of hedging against fluctuations in the price or availability of any commodity) associated with transactions realized in the current period that has been reflected in Consolidated Net Income in prior periods and excluded from Consolidated EBITDA pursuant to clauses (a)(xiii) and (a)(xiv) above, and
(viii) the amount of any minority interest income consisting of Subsidiary loss attributable to minority equity interests of third parties in any non-wholly owned Subsidiary,
in each case, as determined on a consolidated basis for the Company and its Restricted Subsidiaries in accordance with GAAP; provided that, to the extent included in Consolidated Net Income,
(i) there shall be excluded in determining Consolidated EBITDA, without duplication, any net unrealized gains and losses relating to mark-to-market of amounts denominated in foreign currencies resulting from the application of FASB ASC 830;
(ii) there shall be included in determining Consolidated EBITDA for any period, without duplication, (A) the Acquired EBITDA of any Person, property, business or asset acquired by the Company or any Restricted Subsidiary of the Company during such period (other than any Unrestricted Subsidiary) (each such Person, property, business or asset acquired, including pursuant to a transaction consummated prior to the Issue Date, and not subsequently so disposed of, an “Acquired Entity or Business”), and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during such period (each, a “Converted Restricted Subsidiary”), in each case based on the Acquired EBITDA of such Pro Forma Entity for such period (including the portion thereof occurring prior to such acquisition or conversion) determined on a historical pro forma basis and (B) an adjustment equal to the amount of the Pro Forma Adjustment for such period (including the portion thereof occurring prior to such acquisition or conversion); and
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(iii) there shall be excluded in determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business or asset (other than any Unrestricted Subsidiary) sold, transferred or otherwise disposed of, closed or classified as discontinued operations by the Company or any Restricted Subsidiary of the Company during such period (each such Person, property, business or asset so sold, transferred or otherwise disposed of, closed or classified, a “Sold Entity or Business”), and the Disposed EBITDA of any Restricted Subsidiary of the Company that is converted into an Unrestricted Subsidiary during such period (each, a “Converted Unrestricted Subsidiary”), in each case based on the Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer, disposition, closure, classification or conversion) determined on a historical pro forma basis.
“Consolidated First Lien Secured Leverage Ratio” means, as of any date of determination, the ratio of (x) Consolidated Total Indebtedness of the Company or any Guarantor constituting Secured Pari Passu Indebtedness as of such date to (y) LTM EBITDA of the Company and its Restricted Subsidiaries. In the event that the Company or any Restricted Subsidiary incurs, assumes, guarantees, redeems, defeases, retires or extinguishes any Indebtedness (other than Indebtedness incurred under any revolving credit facility unless such Indebtedness has been permanently repaid and has not been replaced), has caused any Reserved Indebtedness Amount to be deemed to be incurred during such period or issues or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the reference period but prior to or simultaneously with the event for which the calculation of the Consolidated First Lien Secured Leverage Ratio and Consolidated Total Leverage Ratio, as applicable, is made (the “Ratio Calculation Date”), then such ratio shall be calculated giving pro forma effect to such incurrence, deemed incurrence, assumption, guarantee, redemption, defeasance, retirement or extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred Stock, as if the same had occurred at the beginning of the applicable four-quarter period.
“Consolidated Interest Expense” means, with respect to any Person for any period, without duplication, the sum of:
(1) consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of original issue discount or premium resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (c) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in mark-to-market valuation of any Hedging Obligations or other derivative instruments pursuant to GAAP), (d) the interest component of Capitalized Lease Obligations, and (e) net payments, if any made (less net payments, if any, received), pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding (i) Securitization Fees, (ii) penalties, additions to Tax and interest relating to Taxes, (iii) annual agency or similar fees paid to the administrative agents, collateral agents and other agents under any Credit Facility, (iv) any additional interest or liquidated damages owing pursuant to any registration rights obligations, (v) costs associated with obtaining Hedging Obligations, (vi) accretion or accrual of discounted liabilities other than Indebtedness, (vii) any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or purchase accounting in connection with any acquisition, (viii) amortization, expensing or write-off of deferred financing fees, amendment and consent fees, debt issuance costs, debt discount or premium, terminated hedging obligations and other commissions, fees and expenses, discounted liabilities, original issue discount and any other amounts of non-cash interest and, adjusted to the extent included, to exclude any refunds or similar credits received in connection with the purchasing or procurement of goods or services under any purchasing card or similar program, (ix) any expensing of bridge, arrangement, structuring, commitment, agency, consent and other financing fees and any other fees related to the Merger or any acquisitions after the Issue Date, (x) any accretion of accrued interest on discounted liabilities and any prepayment, make-whole or breakage premium, penalty or cost, (xi) interest expense with respect to Indebtedness of any direct or indirect parent of such Person resulting from push-down accounting) and (xii) any lease, rental or other expense in connection with Non-Financing Lease Obligations; plus
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(2) consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less
(3) interest income for such period.
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 GAAP.
“Consolidated Net Income” means, for any period, the net income (loss) of the Company and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, excluding, without duplication,
| (1) | [reserved], |
|---|---|
| (2) | the<br> cumulative effect of a change in accounting principles during such period to the extent included<br> in Consolidated Net Income, |
| --- | --- |
| (3) | [reserved], |
| --- | --- |
| (4) | any<br> fees and expenses incurred during such period, or any amortization thereof for such period,<br> in connection with any acquisition, investment, asset disposition, issuance or repayment<br> of debt, issuance or redemption of equity securities (including in connection with any initial<br> public offering), refinancing transaction or amendment or other modification of any equity<br> securities or debt or the documentation therefor (in each case, including any such transaction<br> consummated prior to the Issue Date and any such transaction undertaken but not completed)<br> and any charges incurred during such period as a result of any such transaction, |
| --- | --- |
| (5) | any<br> income (loss) for such period attributable to the early extinguishment of Indebtedness, Swap<br> Contracts or other derivative instruments (other than commodity Swap Contracts), |
| --- | --- |
| (6) | accruals<br> and reserves that are established or adjusted as a result of the Transactions in accordance<br> with GAAP or changes as a result of the adoption or modification of accounting policies during<br> such period, |
| --- | --- |
| (7) | stock-based,<br> partnership interest-based and similar incentive-based compensation award or arrangement<br> expenses (including with respect to any profits interest relating to membership interests<br> in any partnership or limited liability company), |
| --- | --- |
| (8) | any<br> income (loss) from investments recorded using the equity method and |
| --- | --- |
| (9) | any<br> income (loss) from the extinguishment, conversion or cancellation of Indebtedness, Hedging<br> Obligations, Swap Contracts (other than commodity Swap Contracts) or other derivative instruments<br> (including deferred financing costs written off, premiums paid or other expenses incurred). |
| --- | --- |
There shall be included in Consolidated Net Income, without duplication, (i) the amount of any cash tax benefits related to the tax amortization of intangible assets in such period and (ii) the amount of any cash received from investments recorded using the equity method.
There shall be excluded from Consolidated Net Income for any period the effects from applying purchase accounting, including applying purchase accounting to inventory, property and equipment, software and other intangible assets and deferred revenue required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to the Company and its Restricted Subsidiaries), as a result any acquisition consummated prior to the Closing Date and any permitted acquisitions or the amortization or write-off of any amounts thereof.
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“Consolidated Total Indebtedness” means, as of any date of determination, (a) the aggregate principal amount of indebtedness of the Company and its Restricted Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of indebtedness resulting from the application of purchase accounting in connection with any acquisition not prohibited by this Indenture or similar Investment), consisting of indebtedness for borrowed money, Capitalized Lease Obligations and debt obligations evidenced by promissory notes or similar instruments, minus (b) cash and Cash Equivalents in an aggregate amount not to exceed, (i) for any determination made prior to the Merger Closing Date, $150.0 million, and (ii) for any determination on or after the Merger Closing Date, the greater of $150.0 million and 50.0% of LTM EBITDA, in each case excluding cash and Cash Equivalents which are listed as “restricted” on the consolidated balance sheet of the Company and its Restricted Subsidiaries as of such date (other than cash and Cash Equivalents listed as “restricted” in connection with any of the Notes Obligations or any Secured Pari Passu Indebtedness or Secured Junior Indebtedness that, pursuant to the terms of this Agreement, are permitted to be secured by liens on such cash and Cash Equivalents on a pari passu or junior basis with the liens securing the Notes Obligations) (providedthat the cash proceeds of any proposed incurrence of Indebtedness shall not be included in this clause (b) for purposes of calculating the Consolidated Total Leverage Ratio or the Consolidated First Lien Secured Leverage Ratio, as applicable), with such pro forma adjustments as are consistent with the pro forma adjustments set forth in Section 1.4.
“Consolidated Total Leverage Ratio” means, as of any date of determination, the ratio of (x) Consolidated Total Indebtedness as of such date to (y) LTM EBITDA.
“Contingent Obligations” means, with respect to any Person, any obligation of such Person guaranteeing in any manner, whether directly or indirectly, any Non-Financing Lease Obligation, dividend or other obligation that does not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”), including any obligation of such Person, whether or not contingent:
| (1) | to<br> purchase any such primary obligation or any property constituting direct or indirect security<br> therefor; |
|---|---|
| (2) | to<br> advance or supply funds: |
| --- | --- |
(a) for the purchase or payment of any such primary obligation; or
(b) to maintain the working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; or
| (3) | to<br> purchase property, securities or services primarily for the purpose of assuring the owner<br> of any such primary obligation of the ability of the primary obligor to make payment of such<br> primary obligation against loss in respect thereof. |
|---|
“Contribution” means, the contribution by a Parent Entity of 100% of the Capital Stock of Shutterstock (or its applicable successor in interest pursuant to the transactions described in the Merger Agreement) and its subsidiaries, which is understood to represent Shutterstock’s business, to AIH or a Restricted Subsidiary of AIH that is the Company or a Guarantor.
“Controlled Investment Affiliates” means, as to any Person, any other Person, which directly or indirectly is in control of, is controlled by, or is under common control with such Person and is organized by such Person (or any Person controlling such Person) primarily for making direct or indirect equity or debt investments in the Company and/or other companies.
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“Controlling Collateral Agent” has the meaning ascribed to such term in the First Lien Intercreditor Agreement.
“Credit Agreement” means that certain Credit Agreement dated as of February 19, 2019, by and among AIH, and the Company, as the borrowers, Midco, as holdings, JPMorgan Chase Bank, N.A. as administrative agent, collateral agent, swing line lender and L/C issuer, and the other parties thereto, as amended by that certain First Amendment to Credit Agreement, dated as of February 3, 2023, as further amended by that certain Incremental Commitment Amendment and Second Amendment to Credit Agreement, dated as of May 4, 2023 and as further amended by that certain Second Incremental Commitment Amendment and Third Amendment to Credit Agreement, dated as of February 21, 2025, together with the related documents thereto (including the revolving loans thereunder, any letters of credit and reimbursement obligations related thereto, any Guarantees and security documents), as amended, extended, renewed, restated, refunded, replaced, refinanced, supplemented, modified or otherwise changed (in whole or in part, and without limitation as to amount, terms, conditions, covenants and other provisions) from time to time, and any one or more agreements (and related documents) governing Indebtedness, including indentures, incurred to refinance, substitute, supplement, replace or add to (including increasing the amount available for borrowing or adding or removing any Person as a borrower, issuer or guarantor thereunder, in whole or in part), the borrowings and commitments then outstanding or permitted to be outstanding under the applicable Credit Agreement or one or more successors to such Credit Agreement or one or more new credit agreements.
“Credit Agreement Agent” means the administrative agent under the Credit Agreement (which shall initially be JPMorgan Chase Bank, N.A.) or any new credit agreements.
“Credit Agreement Collateral Agent” means the collateral agent under the Credit Agreement, which shall initially be JPMorgan Chase Bank, N.A.
“Credit Agreement Obligations” means “Obligations” as defined in the Credit Agreement.
“Credit Facility” means, with respect to the Company or any of its Subsidiaries, one or more debt facilities, indentures or other arrangements (including the Credit Agreement or commercial paper facilities and overdraft facilities) with banks, other financial institutions or investors providing for revolving credit loans, term loans, notes, receivables financing (including through the sale of receivables to such institutions or to special purpose entities formed to borrow from such institutions against such receivables), letters of credit or other Indebtedness, in each case, as amended, restated, modified, renewed, refunded, replaced, restructured, refinanced, repaid, increased or extended in whole or in part from time to time (and whether in whole or in part and whether or not with the original administrative agent and lenders or another administrative agent or agents or other banks or institutions and whether provided under the original Credit Agreement or one or more other credit or other agreements, indentures, financing agreements or otherwise) and in each case including all agreements, instruments and documents executed and delivered pursuant to or in connection with the foregoing (including any notes and letters of credit issued pursuant thereto and any Guarantee and collateral agreement, patent and trademark security agreement, mortgages or letter of credit applications and other Guarantees, pledges, agreements, security agreements and collateral documents).
Without limiting the generality of the foregoing, the term “Credit Facility” shall include any agreement or instrument (1) changing the maturity of any Indebtedness incurred thereunder or contemplated thereby, (2) adding Subsidiaries of the Company as additional borrowers or guarantors thereunder, (3) increasing the amount of Indebtedness incurred thereunder or available to be borrowed thereunder or (4) otherwise altering the terms and conditions thereof.
“Custodian” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.
“Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default; provided that any Default that results solely from the taking of an action that would have been permitted but for the continuation of a previous Default will be deemed to be cured if such previous Default is cured prior to becoming an Event of Default.
-15-
“Definitive Notes” means certificated Notes.
“Delaware Divided LLC” means any Delaware LLC which has been formed upon the consummation of a Delaware LLC Division.
“Delaware LLC” means any limited liability company organized or formed under the laws of the State of Delaware.
“Delaware LLC Division” means the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act.
“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.3 hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture.
“Derivative Instrument” with respect to a Person, means any contract, instrument or other right to receive payment or delivery of cash or other assets to which such Person or any Affiliate of such Person that is acting in concert with such Person in connection with such Person’s investment in the Notes (other than a Screened Affiliate) is a party (whether or not requiring further performance by such Person), the value and/or cash flows of which (or any material portion thereof) are materially affected by the value and/or performance of the Notes and/or the creditworthiness of the Company and/or any one or more of the Guarantors (the “Performance References”).
“Designated Non-Cash Consideration” means the fair market value (as determined in good faith by the Company) of non-cash consideration received by the Company or any of the Restricted Subsidiaries in connection with an Asset Disposition that is so designated as Designated Non-Cash Consideration pursuant to an Officer’s Certificate, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent payment, redemption, retirement, sale or other disposition of such Designated Non-Cash Consideration. A particular item of Designated Non-Cash Consideration will no longer be considered to be outstanding when and to the extent it has been paid, redeemed or otherwise retired or sold or otherwise disposed of in compliance with Section 3.5.
“Designated Preferred Stock” means Preferred Stock of the Company or a Parent Entity (other than Disqualified Stock) that is issued for cash (other than to the Company or a Subsidiary of the Company or an employee stock ownership plan or trust established by the Company or any such Subsidiary for the benefit of their employees to the extent funded by the Company or such Subsidiary) and that is designated as “Designated Preferred Stock” pursuant to an Officer’s Certificate of the Company at or prior to the issuance thereof, the net cash proceeds of which are excluded from the calculation set forth in Section 3.3(a)(ii)(C).
“Disinterested Director” means, with respect to any Affiliate Transaction, a member of the Board of Directors having no material direct or indirect financial interest in or with respect to such Affiliate Transaction. A member of the Board of Directors shall be deemed not to have such a financial interest by reason of such member’s holding Capital Stock of the Company or any options, warrants or other rights in respect of such Capital Stock.
“Disposed EBITDA” means, with respect to any Sold Entity or Business or Converted Unrestricted Subsidiary for any period, the amount for such period of Consolidated EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary (determined as if references to the Company and its Restricted Subsidiaries in the definition of the term “Consolidated EBITDA” (and in the component financial definitions used therein) were references to such Sold Entity or Business and its Subsidiaries or to Converted Unrestricted Subsidiary and its Subsidiaries), all as determined on a consolidated basis for such Sold Entity or Business.
-16-
“Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person which by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or upon the happening of any event:
| (1) | matures<br> or is mandatorily redeemable for cash or in exchange for Indebtedness pursuant to a sinking<br> fund obligation or otherwise; or |
|---|---|
| (2) | is<br> or may become (in accordance with its terms) upon the occurrence of certain events or otherwise<br> redeemable or repurchasable for cash or in exchange for Indebtedness at the option of the<br> holder of the Capital Stock in whole or in part, in each case on or prior to the earlier<br> of (a) the Stated Maturity of the Notes or (b) the date on which there are no Notes outstanding;<br> provided, however, that (i) only the portion of Capital Stock which so matures<br> or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the<br> option of the holder thereof prior to such date will be deemed to be Disqualified Stock and<br> (ii) any Capital Stock that would constitute Disqualified Stock solely because the holders<br> thereof have the right to require the Company to repurchase such Capital Stock upon the occurrence<br> of a change of control or asset sale (howsoever defined or referred to) shall not constitute<br> Disqualified Stock if any such redemption or repurchase obligation is subject to compliance<br> by the relevant Person with Section 3.3; provided, however, that if such Capital<br> Stock is issued to any future, current or former employee, director, officer, manager, contractor,<br> consultant or advisor (or their respective Controlled Investment Affiliates or Immediate<br> Family Members) (excluding the Permitted Holders (but not excluding any future, current or<br> former employee, director, officer, manager, contractor, consultant or advisor) or Immediate<br> Family Members), of the Company, any of its Subsidiaries, any Parent Entity or any other<br> entity in which the Company or a Restricted Subsidiary has an Investment and is designated<br> in good faith as an affiliate by the Board of Directors (or the compensation committee thereof)<br> or any other plan for the benefit of current, former or future employees (or their respective<br> Controlled Investment Affiliates or Immediate Family Members) of the Company or its Subsidiaries<br> or by any such plan to such employees (or their respective Controlled Investment Affiliates<br> or Immediate Family Members), such Capital Stock shall not constitute Disqualified Stock<br> solely because it may be required to be repurchased by the Company or its Subsidiaries in<br> order to satisfy applicable statutory or regulatory obligations. |
| --- | --- |
“Dollar Fixed Rate Term B-1 Loans” means the loans in respect of the fixed rate incremental term loan commitments denominated in Dollars outstanding under the Credit Agreement.
“Dollars” or “$” means the lawful currency of the United States of America.
“Domestic Subsidiary” means, with respect to any Person, any Restricted Subsidiary of such Person other than a Foreign Subsidiary.
“DTC” means The Depository Trust Company or any successor securities clearing agency.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any Capital Stock that arises only by reason of the happening of a contingency that is outside the control of the holder of such Capital Stock or any debt security that is convertible into, or exchangeable for, Capital Stock).
“Equity Offering” means (x) a sale of Capital Stock (other than through the issuance of Disqualified Stock or Designated Preferred Stock or through an Excluded Contribution) other than (a) offerings registered on Form S-8 (or any successor form) under the Securities Act or any similar offering in other jurisdictions of securities of the Company or any Parent Entity and (b) issuances of Capital Stock to any Subsidiary of the Company or (y) a cash equity contribution to the Company.
“Euro” means the single currency of participating member states of the economic and monetary union as contemplated in the Treaty on European Union.
“Euro Term B-1 Loans” means the loans of such class denominated in Euros outstanding under the Credit Agreement.
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“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder, as amended.
“Excluded Equity Interests” has the meaning ascribed to it in the definition of “Excluded Property”.
“Excluded Property” means:
| (1) | any<br> (i) Equity Interests to the extent the grant of a security interest therein is prohibited<br> by law or requires a consent not obtained of any Governmental Authority pursuant to such<br> law; (ii) Equity Interests in any Person, other than the Company and wholly owned Restricted<br> Subsidiaries, to the extent not permitted by the terms of such Person’s organizational<br> documents or joint venture documents; (iii) Equity Interests to the extent a security<br> interest in such Equity Interests would result in material adverse tax consequences (including<br> as a result of the operation of Section 956 of the Code or any similar law in any applicable<br> jurisdiction) as determined in good faith by the Company in writing (in consultation<br> with each existing Credit Agreement Agent, if any Credit Agreement is then outstanding);<br> (iv) Equity Interests as to which the Company (in consultation with each existing Credit<br> Agreement Agent, if any Credit Agreement is then outstanding) determines in good faith in<br> writing that the cost of obtaining such a security interest or perfection thereof are excessive<br> in relation to the benefit to the Holders of the security to be afforded thereby; (v) all<br> Voting Stock in excess of 65% of the voting equity interests of (A) any Foreign Subsidiaries<br> or (B) any FSHCOs; and (vi) all Equity Interests of (A) indirect Foreign Subsidiaries<br> (other than, for the avoidance of doubt, first tier Foreign Subsidiaries), (B) any direct<br> or indirect Domestic Subsidiary (other than a Guarantor) that is a Subsidiary of a Foreign<br> Subsidiary, (C) any Immaterial Subsidiary that is not a Guarantor or (D) any Unrestricted<br> Subsidiary (this clause (1), the “Excluded Equity Interests”); |
|---|---|
| (2) | any<br> fee-owned real property that does not constitute Material Real Property and all leasehold<br> interests in real property; |
| --- | --- |
| (3) | vehicles<br> and other assets subject to certificates of title; |
| --- | --- |
| (4) | letter-of-credit<br> rights with a value (as determined in good faith by the Company, which determination shall<br> be conclusive) of less than $7,500,000; |
| --- | --- |
| (5) | Commercial<br> Tort Actions (as defined in the Notes Security Agreement) with a value of less than $7,500,000<br> (as determined in good faith by the Company, which determination shall be conclusive); |
| --- | --- |
| (6) | any<br> asset or property to the extent the grant of a security interest therein is prohibited by<br> law or requires a consent not obtained of any Governmental Authority pursuant to such law; |
| --- | --- |
| (7) | assets<br> to the extent a security interest in such assets would result in material adverse tax consequences<br> (including as a result of the operation of Section 956 of the Code or any similar Law<br> in any applicable jurisdiction) as reasonably determined by the Company in writing (in<br> consultation with each existing Credit Agreement Agent, if any Credit Agreement is then outstanding); |
| --- | --- |
| (8) | any<br> lease, license or other agreement or contract or any property subject to a purchase money<br> security interest or similar arrangement, to the extent that a grant of a security interest<br> therein would violate or invalidate such lease, license, agreement or contract or purchase<br> money arrangement or create a right of termination in favor of any other party thereto (other<br> than AIH or a wholly owned Subsidiary of AIH) after giving effect to the applicable anti-assignment<br> provisions of the UCC of any applicable jurisdiction and other than Proceeds (as defined<br> in the Notes Security Agreement) and receivables thereof, the assignment of which is expressly<br> deemed effective under the UCC of any applicable jurisdiction notwithstanding such prohibition; |
| --- | --- |
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| (9) | those<br> assets as to which the Company (in consultation with each existing Credit Agreement Agent,<br> if any Credit Agreement is then outstanding) determines in good faith in writing that the<br> cost of obtaining such a security interest or perfection thereof is excessive in relation<br> to the benefit to the Holders of the security to be afforded thereby; |
|---|---|
| (10) | any<br> governmental licenses or state or local franchises, charters and authorizations, to the extent<br> security interests in such licenses, franchises, charters or authorizations are prohibited<br> or restricted thereby after giving effect to the applicable anti-assignment provisions of<br> the Uniform Commercial Code of any applicable jurisdiction; and |
| --- | --- |
| (11) | “intent-to-use”<br> trademark or service mark applications. |
| --- | --- |
Notwithstanding anything herein or the Collateral Documents to the contrary, Excluded Property will not include any proceeds, substitutions or replacements of any Excluded Property (unless such proceeds, substitutions or replacements would otherwise constitute Excluded Property referred to above).
“Excluded Contribution” means net cash proceeds or property or assets received by the Company as capital contributions to the equity (other than through the issuance of Disqualified Stock or Designated Preferred Stock) of the Company after the Issue Date or from the issuance or sale (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Company or any Subsidiary of the Company for the benefit of their employees to the extent funded by the Company or any Restricted Subsidiary) of Capital Stock (other than Disqualified Stock or Designated Preferred Stock) of the Company.
“Existing Senior Secured Notes” means the Company’s existing 11.250% Senior Secured Notes due 2030.
“Existing Senior Secured Notes Indenture” means that certain indenture dated May 5, 2025 pursuant to which the Existing Senior Secured Notes were issued.
“fair market value” may be conclusively established by means of an Officer’s Certificate or resolutions of the Board of Directors setting out such fair market value as determined by such Officer or such Board of Directors in good faith.
“Fitch” means Fitch Ratings, Inc. or any of its successors or assigns that is a Nationally Recognized Statistical Rating Organization.
“First Lien Intercreditor Agreement” means the First Lien Intercreditor Agreement, dated May 5, 2025 (as supplemented by the Intercreditor Joinder and as further amended, restated, amended and restated or otherwise modified from time to time), among the Company, the Guarantors from time to time party thereto, the Credit Agreement Agent, the Credit Agreement Collateral Agent, US Bank Trust Company, National Association, as trustee and notes collateral agent for the Existing Senior Secured Notes, and each Additional Agent (as defined therein) party thereto from time to time.
“Foreign Subsidiary” means, any Subsidiary of AIH which is neither (a) organized under the laws of the United States of America, any state thereof, or the District of Columbia nor (b) a FSHCO. Notwithstanding anything to the contrary in this Indenture, any Subsidiary of a Person described in the immediately preceding sentence shall be deemed to be a Foreign Subsidiary under this Indenture.
“FSHCO” means any Subsidiary (i) that is organized under the laws of the United States, any state thereof or the District of Columbia and (ii) has no material assets other than Equity Interests (or Equity Interests and Indebtedness) of one or more Foreign Subsidiaries (or Subsidiaries thereof), intellectual property relating to such Foreign Subsidiaries (or Subsidiaries thereof) and other assets (including cash and Cash Equivalents) incidental to an ownership interest in any such securities, Indebtedness, intellectual property or Subsidiaries.
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“GAAP” means generally accepted accounting principles in the United States of America set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time; provided that all terms of an accounting or financial nature used in this Indenture shall be construed, and all computations of amounts and ratios referred to in this Indenture shall be made (a) without giving effect to any election under Accounting Standards Codification Topic 825—Financial Instruments, or any successor thereto or comparable accounting principle (including pursuant to the Accounting Standards Codification), to value any Indebtedness of the Company or any Subsidiary at “fair value,” as defined therein and (b) the amount of any Indebtedness under GAAP with respect to Capitalized Lease Obligations shall be determined in accordance with the definition of Capitalized Lease Obligations. At any time after the Issue Date, the Company may elect to apply IFRS accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in this Indenture); provided that any such election, once made, shall be irrevocable; provided, further, that any calculation or determination in this Indenture that requires the application of GAAP for periods that include fiscal quarters ended prior to the Company’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP. The Company shall give notice of any such election made in accordance with this definition to the Trustee. For the avoidance of doubt, solely making an election (without any other action) referred to in this definition will not be treated as an incurrence of Indebtedness.
If there occurs a change in IFRS or GAAP, as the case may be, and such change would cause a change in the method of calculation of any standards, terms or measures (including all computations of amounts and ratios) used in this Indenture (an “Accounting Change”), then the Company may elect that such standards, terms or measures shall be calculated as if such Accounting Change had or had not occurred.
“Getty Investors” means Getty Investments, L.L.C., October 1993 Trust, Mark H. Getty and The Options Settlement, or any lineal descendant of J. Paul Getty (including (x) children of any such lineal descendant by adoption and step children, and (y) the spouse of any such lineal descendant), or any Affiliate of the foregoing, or, any trusts, partnerships or limited liability companies for the benefit of any of the foregoing, or any of their heirs, executors, successors and legal representatives, who at any date beneficially own or have the right to acquire, directly or indirectly, Equity Interests of the Company or any Parent Holding Company.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Grantors” means the Company, the Guarantors and each Subsidiary of the Company which has granted a security interest pursuant to any First Lien Collateral Document (as defined in the First Lien Intercreditor Agreement) to secure any Series (as defined in the First Lien Intercreditor Agreement) of First Lien Obligations (as defined in the First Lien Intercreditor Agreement).
“Guarantee” means, any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person, including any such obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise); or
(2) entered into primarily for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term “Guarantee” will not include (x) endorsements for collection or deposit in the ordinary course of business or consistent with past practice or industry norms and (y) standard contractual indemnities or product warranties provided in the ordinary course of business, and provided, further, that the amount of any Guarantee shall be deemed to be the lower of (i) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made and (ii) the maximum amount for which such guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guarantee or, if such Guarantee is not an unconditional guarantee of the entire amount of the primary obligation and such maximum amount is not stated or determinable, the amount of such guaranteeing Person’s maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith. The term “Guarantee” used as a verb has a corresponding meaning.
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“Guarantors” means AIH, Midco and each Subsidiary Guarantor.
“Hedging Obligations” means, with respect to any Person, the obligations of such Person under any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, commodity swap agreement, commodity cap agreement, commodity collar agreement, foreign exchange contracts, currency swap agreement or similar agreement providing for the transfer or mitigation of interest rate, commodity price or currency risks either generally or under specific contingencies.
“Holder” means each Person in whose name the Notes are registered on the Registrar’s books, which shall initially be the nominee of DTC.
“Holding Company” means any Person so long as such Person directly or indirectly holds 100% of the total voting power of the Voting Stock of the Company, and at the time such Person acquired such voting power, no Person and no group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any such group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) (other than any Permitted Holder), shall have beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of such Person.
“IAI” means an institution “accredited investor” as described in Rule 501(a)(1), (2), (3), (7) or (8) under the Securities Act.
“IFRS” means the International Financial Reporting Standards as issued by the International Accounting Standards Board as in effect from time to time.
“Immaterial Subsidiary” means, at any date of determination, each Restricted Subsidiary that (i) has not guaranteed any other Indebtedness of the Company and (ii) has total assets and revenues of less than 5.0% of Total Assets and Total Revenues, respectively, and, together with all other Immaterial Subsidiaries, has total assets and revenues of less than 10.0% of Total Assets and Total Revenues, in each case, measured at the end of the most recent fiscal period for which consolidated financial statements are available (which may, at the election of the Company, be internal financial statements) on a pro forma basis giving effect to any acquisitions or dispositions of companies, division or lines of business since such balance sheet date or the start of such four quarter period, as applicable, and on or prior to the date of acquisition of such Subsidiary.
“Immediate Family Members” means, with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, qualified domestic partner, sibling, mother-in-law, father-in-law, son-in-law and daughter-in-law (including adoptive relationships, the estate of such individual and such other individuals above) and any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals or any private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which any such individual is the donor.
“Incur” means issue, create, assume, enter into any Guarantee of, incur, extend or otherwise become liable for; provided, however, that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger, amalgamation, consolidation, acquisition or otherwise) will be deemed to be incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary and the terms “incurred” and “incurrence” have meanings correlative to the foregoing and any Indebtedness pursuant to any revolving credit or similar facility shall only be “incurred” at the time any funds are borrowed thereunder.
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“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
| (1) | all<br> indebtedness of such Person for borrowed money and all obligations of such Person evidenced<br> by bonds, debentures, notes, loan agreements, or other similar instruments; |
|---|---|
| (2) | the<br> maximum amount of (i) all letters of credit (including standby and commercial), bankers’<br> acceptances, bank guaranties, and (ii) surety bonds, performance bonds and similar instruments<br> issued or created by or for the account of such Person; |
| --- | --- |
| (3) | net<br> obligations of such Person under any Swap Contract; |
| --- | --- |
| (4) | all<br> obligations of such Person to pay the deferred purchase price of property (other than (i)<br> trade accounts payable in the ordinary course of business, (ii) any such obligations incurred<br> under the Employee Retirement Income Security Act of 1974, and the rules and regulations<br> thereunder, each as amended or modified from time to time, (iii) any earn-out obligation<br> except to the extent such earn-out obligation has been determined by such Person in good<br> faith to be due and payable and is not paid within 60 days after the date of such determination<br> (in the amount so determined to be due and payable and remaining unpaid), (iv) expenses and<br> other liabilities accrued in the ordinary course of business, (v) obligations resulting from<br> take-or pay contracts entered into in the ordinary course of business and (vi) obligations<br> due within six months of the date of incurrence); |
| --- | --- |
| (5) | Indebtedness<br> of any other Person secured by a Lien on property owned or being purchased by such Person,<br> whether or not such indebtedness shall have been assumed by such Person or is limited in<br> recourse; |
| --- | --- |
| (6) | all<br> Capitalized Lease Obligations; |
| --- | --- |
| (7) | all<br> obligations of such Person in respect of Disqualified Stock; and |
| --- | --- |
| (8) | all<br> Guarantees of such Person in respect of any of the foregoing obligations of another Person; |
| --- | --- |
provided that Indebtedness shall not include (i) prepaid or deferred revenue arising in the ordinary course of business and (ii) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy warranties or other unperformed obligations of the seller of such asset.
For all purposes hereof, the Indebtedness of any Person shall (A) include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company or the foreign equivalent thereof) in which such Person is a general partner or a joint venturer, except to the extent such Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness would be included in the calculation of Consolidated Total Indebtedness of such Person and (B) in the case of Midco, AIH and its Subsidiaries, exclude all intercompany Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of Indebtedness of any Person for purposes of clause (5) above shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value of the property encumbered thereby as determined by such Person in good faith.
“Indenture” means this Indenture as amended or supplemented from time to time.
“Independent Financial Advisor” means an accounting, appraisal, investment banking firm or consultant to Persons engaged in Similar Businesses of nationally recognized standing; provided, however, that such firm or appraiser is not an Affiliate of the Company.
“Initial Notes” has the meaning ascribed to it in the first recital paragraph of this Indenture.
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“Insolvency or Liquidation Proceeding” means (a) any case or proceeding commenced by or against the Company or any Guarantor under any Bankruptcy Law, any other case or proceeding for the reorganization, recapitalization or adjustment or marshalling of the assets or liabilities of the Company or any Guarantor, any receivership or assignment for the benefit of creditors relating to the Company or any Guarantor or any similar case or proceeding relative to the Company or any Guarantor or its creditors, as such, in each case whether or not voluntary, (b) any liquidation, dissolution, marshalling of assets or liabilities or other winding up of or relating to the Company or any Guarantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency (except for any voluntary liquidation, dissolution or other winding up to the extent permitted by the applicable First Lien Documents (as defined in the First Lien Intercreditor Agreement)) or (c) any other case or proceeding of any type or nature in which substantially all claims of creditors of the Company or any Guarantor are determined and any payment or distribution is or may be made on account of such claims.
“Intercompany License Agreement” means any cost sharing agreement, commission or royalty agreement, license or sublicense agreement, distribution agreement, services agreement, intellectual property rights transfer agreement, any related agreements or similar agreements, in each case where all parties to such agreement are one or more of the Company or a Restricted Subsidiary.
“Intercreditor Agreement” means the First Lien Intercreditor Agreement and any other intercreditor agreements governing Applicable Intercreditor Arrangements.
“Intercreditor Joinder” means that certain Joinder No. 1, dated as of the Issue Date, to the First Lien Intercreditor Agreement, among the Notes Collateral Agent, the Company, AIH and JPMorgan Chase Bank, N.A., as Controlling Collateral Agent.
“Investment” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of advances, loans or other extensions of credit (excluding (i) accounts receivable, trade credit, advances or extensions of credit to customers, suppliers, future, present or former employees, directors, officers, managers, contractors, consultants or advisors (or their respective Controlled Investment Affiliates or Immediate Family Members)) of any Person in the ordinary course of business or consistent with past practice or industry norms, (ii) any debt or extension of credit represented by a bank deposit other than a time deposit, (iii) intercompany advances arising from cash management, tax and accounting operations and (iv) intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or the incurrence of a Guarantee of any obligation of, or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such other Persons and all other items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP; provided, however, that endorsements of negotiable instruments and documents in the ordinary course of business or consistent with past practice or industry norms will not be deemed to be an Investment.
For purposes of Section 3.3 and Section 3.19:
(1) “Investment” will include the portion (proportionate to the Company’s equity interest in a Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the fair market value of the net assets of such Restricted Subsidiary at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Company will be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (a) the Company’s “Investment” in such Subsidiary at the time of such redesignation less (b) the portion (proportionate to the Company’s equity interest in such Subsidiary) of the fair market value of the net assets (as determined by the Company) of such Subsidiary at the time that such Subsidiary is so re-designated a Restricted Subsidiary;
(2) any property transferred to or from an Unrestricted Subsidiary will be valued at its fair market value at the time of such transfer, in each case as determined in good faith by the Company; and
(3) if the Company or any Restricted Subsidiary issues, sells or otherwise disposes of Capital Stock of a Person that is a Restricted Subsidiary such that, after giving effect thereto, such Person is no longer a Restricted Subsidiary, any investment by the Company or any Restricted Subsidiary in such Person remaining after giving effect thereto shall not be deemed to be an Investment at such time.
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The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash and Cash Equivalents by the Company or a Restricted Subsidiary in respect of such Investment to the extent such amounts do not increase any other baskets under this Indenture.
“Investment Grade Securities” means:
| (1) | securities<br> issued or directly and fully Guaranteed or insured by the United States government or any<br> agency or instrumentality thereof (other than Cash Equivalents); |
|---|---|
| (2) | securities<br> issued or directly and fully guaranteed or insured by the Canadian, United Kingdom or Japanese<br> governments, a member state of the European Union, or any agency or instrumentality thereof<br> (other than Cash Equivalents); |
| --- | --- |
| (3) | debt<br> securities or debt instruments with a rating of “BBB-” or higher from S&P<br> or “Baa3” or higher by Moody’s or the equivalent of such rating by such<br> rating organization or, if no rating of Moody’s or S&P then exists, the equivalent<br> of such rating by any other Nationally Recognized Statistical Ratings Organization, but excluding<br> any debt securities or instruments constituting loans or advances among the Company and its<br> Subsidiaries; |
| --- | --- |
| (4) | investments<br> in any fund that invests exclusively in investments of the type described in clauses (1),<br> (2) and (3) above which fund may also hold cash and Cash Equivalents pending investment or<br> distribution; and |
| --- | --- |
| (5) | corresponding<br> instruments in countries other than the United States customarily utilized for high quality<br> investments. |
| --- | --- |
“Investment Grade Status” shall occur when the Notes receive two of the following:
| (1) | a<br> rating of “BBB-” or higher from S&P; |
|---|---|
| (2) | a<br> rating of “Baa3” or higher from Moody’s; or |
| --- | --- |
| (3) | a<br> rating of “BBB-” or higher from Fitch; |
| --- | --- |
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.
“Investors” means (a) prior to the Merger Closing Date, (i) the Getty Investors and their respective Controlled Investment Affiliates and (ii) the Management Group and (b) on and after the Merger Closing Date, (i) the Getty Investors and their respective Controlled Investment Affiliates, (ii) the Oringer Investors and their respective Controlled Investment Affiliates and (iii) the Management Group.
“Issue Date” means October 21, 2025.
“Issuer” has the meaning assigned to such term in the preamble hereto.
“Legal Proceeding” means any judicial, regulatory, administrative or arbitral action, suit, claim, appeal, cause of action, objection, demand, inquiry, audit, notice of violation, citation, summon, subpoena, proceeding, or investigation of any nature, civil, criminal, public or private.
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“Lien” means any mortgage, pledge, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any lease evidencing capitalized lease obligations having substantially the same economic effect as any of the foregoing ); provided that, for the avoidance of doubt, in no event shall an operating lease in and of itself be deemed to constitute a Lien.
“Limited Condition Transaction” means (1) any Investment or acquisition (whether by merger, amalgamation, consolidation or other business combination or the acquisition of Capital Stock or otherwise and which may include, for the avoidance of doubt, a transaction that may constitute a Change of Control), whose consummation is not conditioned on the availability of, or on obtaining, third-party financing, (2) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Stock or Preferred Stock requiring irrevocable notice (which may be conditional) in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment, (3) any Restricted Payment requiring irrevocable notice (which may be conditional) in advance thereof, (4) any incurrence of Indebtedness requiring irrevocable notice (which may be conditional) in advance thereof and (5) a “Change of Control*.*”
“Long Derivative Instrument” means a Derivative Instrument (i) the value of which generally increases, and/or the payment or delivery obligations under which generally decrease, with positive changes to the Performance References and/or (ii) the value of which generally decreases, and/or the payment or delivery obligations under which generally increase, with negative changes to the Performance References.
“LTM EBITDA” means Consolidated EBITDA of the Company and its Restricted Subsidiaries measured for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements are available (which may, at the election of the Company, be internal financial statements), in each case with such pro forma adjustments giving effect to such Indebtedness, acquisition or Investment, as applicable, since the start of such four quarter period and as are consistent with the pro forma adjustments set forth in Section 1.4.
“Management Advances” means loans or advances made to, or Guarantees with respect to loans or advances made to, future, present or former employees, directors, officers, managers, contractors, consultants or advisors (or their respective Controlled Investment Affiliates or Immediate Family Members) of any Parent Entity, the Company or any Restricted Subsidiary:
| (1) | (a)<br> in respect of travel, entertainment, relocation or moving related expenses, payroll advances<br> and other analogous or similar expenses or payroll expenses, in each case incurred in the<br> ordinary course of business or consistent with past practice or industry norms or (b) for<br> purposes of funding any such person’s purchase of Capital Stock (or similar obligations)<br> of the Company, its Subsidiaries or any Parent Entity with (in the case of this clause (1)(b))<br> the approval of the Board of Directors of the Company; |
|---|---|
| (2) | in<br> respect of relocation or moving related expenses, payroll advances and other analogous or<br> similar expenses or payroll expenses, in each case incurred in connection with any closing<br> or consolidation of any facility or office; or |
| --- | --- |
| (3) | not<br> exceeding the greater of $10.0 million and 3.0% of LTM EBITDA in the aggregate outstanding<br> at the time of incurrence. |
| --- | --- |
“Management Group” means the executive officers and other management personnel of the Company and its Subsidiaries (or any Parent Entity and its Subsidiaries) on the Issue Date or who became officers or management personnel of the Company and its Subsidiaries (or any Parent Entity and its Subsidiaries) following the Issue Date (other than in connection with a transaction that would otherwise be a Change of Control if such persons were not included in the definition of “Permitted Holders”) or (in each case) family members or relatives thereof, or trusts, partnerships or limited liability companies for the benefit of any of the foregoing, or any of their heirs, executors, successors and legal representatives, who at any date beneficially own or have the right to acquire, directly or indirectly, Equity Interests of the Company or any Parent Holding Company.
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“Material Intellectual Property” means intellectual property that is material to the business of AIH and the Restricted Subsidiaries (including, for the avoidance of doubt, the Company), taken as a whole.
“Material Real Property” means any parcel of real property (other than a parcel with a fair market value of less than $10,000,000) owned in fee by the Company or any Guarantor; provided, however, that one or more parcels owned in fee by such owner and located adjacent to, contiguous with, or in close proximity to, and comprising one property with a common street address, any other parcels owned in fee by such owner may, in the reasonable discretion of the Controlling Collateral Agent, be deemed to be one parcel for the purposes of this definition.
“Merger” means the proposed merger involving Getty Images Holdings, Inc., a Delaware corporation and an indirect parent company of the Company, and Shutterstock, pursuant to the Merger Agreement.
“Merger Agreement” means that certain Agreement and Plan of Merger, dated as of January 6, 2025, by and among, inter alios, Getty Images Holdings, Inc. and Shutterstock.
“Merger Closing Date” means the closing date of the Merger (i.e. the Closing Date (as defined in the Merger Agreement)).
“Merger Expenses” means any fees, costs and expenses (including all legal, accounting and other professional fees, costs and expenses) incurred or paid by the Company or any Restricted Subsidiary associated or in connection with the Merger.
“Midco” means Griffey Midco (DE), LLC, the direct parent of AIH.
“Moody’s” means Moody’s Investors Service, Inc. or any of its successors or assigns that is a Nationally Recognized Statistical Rating Organization.
“Mortgage” means, collectively, the deeds of trust, trust deeds and mortgages made by the Company and the Guarantors in favor of the Notes Collateral Agent for the benefit of the Notes Secured Parties.
“Nationally Recognized Statistical Rating Organization” means a nationally recognized statistical rating organization within the meaning of Section 3(a)(62) of the Exchange Act.
“Net Available Cash” with respect to any Asset Disposition means cash proceeds received (including any cash proceeds received from the sale or other disposition of any Designated Non-Cash Consideration received in any Asset Disposition, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to the properties or assets that are the subject of such Asset Disposition or received in any other non-cash form) therefrom, in each case net of:
| (1) | all<br> legal, accounting, consulting, investment banking, survey costs, title and recording expenses,<br> title insurance premiums, payments made in order to obtain a necessary consent or required<br> by applicable law, brokerage and sales commissions, relocation expenses, commissions, premiums<br> (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses<br> (including original issue discount, upfront fees or similar fees) in connection with such<br> transaction; |
|---|---|
| (2) | all<br> Taxes paid, reasonably estimated to be payable, Tax reserves set aside or payable or accrued<br> as a liability under GAAP (including, for the avoidance of doubt, any income, withholding<br> and other Taxes payable as a result of the distribution or deemed distribution of such proceeds<br> to the Company or any of its Subsidiaries, transfer Taxes, deed or mortgage recording Taxes<br> and Taxes that would be payable in connection with any deemed or actual repatriation of such<br> proceeds), as a consequence of such transaction, including dividends or other distributions<br> for Permitted Tax Amounts or any transactions occurring or deemed to occur to effectuate<br> a payment under this Indenture; |
| --- | --- |
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| (3) | all<br> payments made on any Indebtedness which (x) is secured by any assets subject to such transaction,<br> in accordance with the terms of any Lien upon such assets, (y) is owed by a Non-Guarantor,<br> or (z) by applicable law must be repaid out of the proceeds from such transaction; |
|---|---|
| (4) | all<br> distributions and other payments required to be made to non-controlling interest or minority<br> interest holders (other than any Parent Entity, the Company or any of its Subsidiaries) in<br> Subsidiaries or joint ventures as a result of such transaction; |
| --- | --- |
| (5) | all<br> costs associated with unwinding any related Hedging Obligations in connection with such transaction; |
| --- | --- |
| (6) | the<br> deduction of appropriate amounts required to be provided by the seller as a reserve, in accordance<br> with GAAP, against any liabilities associated with the assets disposed of in such transaction<br> and retained by the Company or any Restricted Subsidiary after such transaction, including<br> pension and other post-employment benefit liabilities and liabilities related to environmental<br> matters or against any indemnification obligations associated with such transaction; |
| --- | --- |
| (7) | any<br> portion of the purchase price from such transaction placed in escrow, whether for the satisfaction<br> of any indemnification obligations in respect of such transaction, as a reserve for adjustments<br> to the purchase price associated with any such transaction or otherwise in connection with<br> such transaction; and |
| --- | --- |
| (8) | the<br> amount of any liabilities (other than Indebtedness in respect of the Credit Agreement and<br> the Notes) directly associated with such asset being sold and retained by the Company or<br> any of its Restricted Subsidiaries. |
| --- | --- |
“Net Short” means, with respect to a Holder or beneficial owner, as of a date of determination, either (i) the value of its Short Derivative Instruments exceeds the sum of the (x) the value of its Notes plus (y) the value of its Long Derivative Instruments as of such date of determination or (ii) it is reasonably expected that such would have been the case were a Failure to Pay or Bankruptcy Credit Event (each as defined in the 2014 ISDA Credit Derivatives Definitions) to have occurred with respect to the Company or any Guarantor immediately prior to such date of determination.
“Non-Cash Charges” means (a) any impairment charge or asset write-off or write-down related to intangible assets (including goodwill), long-lived assets, and investments pursuant to GAAP, (b) all losses from investments recorded using the equity method, (c) all Non-Cash Compensation Expenses, (d) the non-cash impact of purchase accounting, (e) the non-cash impact of accounting changes or restatements, including changes in underlying methodologies, (f) the noncash portion of “straight line” rent expense and (g) all other non-cash charges.
“Non-Cash Compensation Expense” means any non-cash expenses and costs that result from the issuance of stock-based awards, partnership interest-based awards and similar incentive-based compensation awards or arrangements.
“Non-Financing Lease Obligation” means a lease obligation that is not required to be accounted for as a financing or capital lease in accordance with GAAP. For the avoidance of doubt, a straight-line or operating lease shall be considered a Non-Financing Lease Obligation.
“Non-Guarantor” means any Restricted Subsidiary that is not a Guarantor.
“Note Documents” means, collectively, (a) the Notes (including Additional Notes), (b) the Collateral Documents, (c) the First Lien Intercreditor Agreement (including the Intercreditor Joinder), (d) any other Intercreditor Agreement governing Applicable Intercreditor Arrangements required to be entered into pursuant to this Indenture and (e) this Indenture (including the Note Guarantees).
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“Notes Collateral Agent” means U.S. Bank Trust Company, National Association in its capacity as collateral agent under this Indenture and under the Collateral Documents or any successor or assign thereto in such capacity.
“Notes Custodian” means the custodian with respect to the Global Notes (as appointed by DTC), or any successor Person thereto and shall initially be the Trustee.
“Notes Liens” means all Liens securing the Notes Obligations.
“Notes Obligations” means all Obligations of the Company and the Guarantors under the Notes, this Indenture and the Collateral Documents.
“Notes Pledge Agreement” means the Notes Pledge Agreement, dated as of the Issue Date (as amended, restated, amended and restated, supplement or otherwise modified from time to time), by and among the Grantors party thereto and the Notes Collateral Agent.
“Notes Secured Parties” means the Trustee, the Notes Collateral Agent and the Holders of the Notes.
“Notes Security Agreement” means the Notes Security Agreement, dated as of the Issue Date (as amended, restated, amended and restated, supplement or otherwise modified from time to time), by and among the Grantors party thereto and the Notes Collateral Agent.
“Obligations” means any principal, interest (including Post-Petition Interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company or any Guarantor whether or not a claim for Post-Petition Interest is allowed in such proceedings), penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other liabilities payable under the documentation governing any Indebtedness.
“Offering Memorandum” means the offering memorandum, dated October 6, 2025, relating to the offering by the Company of up to $628,400,000 aggregate principal amount of 10.500% senior secured notes due 2030.
“Officer” means, with respect to any Person, (1) the Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Financial Officer, any Executive Vice President, any Senior Vice President, any Vice President, the Treasurer, any Assistant Treasurer, any Managing Director, the Secretary or any Assistant Secretary (a) of such Person or (b) if such Person is owned or managed by a single entity, of such entity, or (2) any other individual designated as an “Officer” for the purposes of this Indenture by the Board of Directors of such Person.
“Officer’s Certificate” means, with respect to any Person, a certificate signed by one Officer of such Person.
“Opinion of Counsel” means a written opinion from legal counsel who is reasonably satisfactory to the Trustee. The counsel may be an employee of or counsel to the Company or its Subsidiaries.
“Option Agreement” means that certain Restated Option Agreement, dated February 9, 1998, by and between Getty Investments, L.L.C., Getty Images, Inc. and Getty Communications PLC, as amended by Waiver and Amendment to Restated Option Agreement, dated February 24, 2008, Second Amendment to Restated Option Agreement, dated July 2, 2008, Waiver and Third Amendment to Restated Option Agreement, dated August 14, 2012, the Consent Letter to Restated Option Agreement, dated February 19, 2019, Fourth Amendment to Option Agreement, dated December 9, 2021 and the Consent Letter to Restated Option Agreement, dated May 5, 2025, as the same may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time; provided that no such amendment, restatement, supplement or other modification following the Issue Date shall expand or provide for additional circumstances pursuant to which Getty Investments, L.L.C. may exercise the option set forth in Section 2 thereof.
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“Oringer Investors” means, collectively, Jonathan Oringer or any lineal descendant of Jonathan Oringer (including (x) children of any such lineal descendant by adoption and step children, and (y) the spouse of any such lineal descendant), or any Affiliate of the foregoing, or any trusts, partnerships or limited liability companies for the benefit of any of the foregoing, or any of their heirs, executors, successors and legal representatives, who at any date beneficially own or have the right to acquire, directly or indirectly, Equity Interests of Midco or any Parent Holding Company.
“Parent Entity” means any direct or indirect parent of the Company (including Getty Images Holdings, Inc.).
“Parent Entity Expenses” means:
| (1) | fees,<br> costs and expenses (including all legal, accounting and other professional fees, costs and<br> expenses) incurred or paid by any Parent Entity in connection with reporting obligations<br> under or otherwise incurred or paid in connection with compliance with applicable laws, rules<br> or regulations of any governmental, regulatory or self-regulatory body or stock exchange,<br> this Indenture or any other agreement or instrument relating to the Notes, the Guarantees<br> or any other Indebtedness of the Company or any Restricted Subsidiary, including in respect<br> of any reports filed or delivered with respect to the Securities Act, Exchange Act or the<br> respective rules and regulations promulgated thereunder; |
|---|---|
| (2) | customary<br> salary, bonus, severance, indemnity, insurance (including premiums therefor) and other benefits<br> payable to any employee, director, officer, manager, contractor, consultant or advisor of<br> any Parent Entity or other Persons under its articles, charter, by-laws, partnership agreement<br> or other organizational documents or pursuant to written agreements with any such Person<br> to the extent relating to the Company and its Subsidiaries; |
| --- | --- |
| (3) | (x)<br> general corporate operating and overhead fees, costs and expenses, (including all legal,<br> accounting and other professional fees, costs and expenses, and director and officer insurance<br> (including premiums therefor)), listing fees and other costs and expenses attributable to<br> being a publicly traded company and (y) other operational expenses of any Parent Entity related<br> to the ownership or operation of the business of the Company or any of the Restricted Subsidiaries; |
| --- | --- |
| (4) | expenses<br> incurred by any Parent Entity in connection with (i) any offering, sale, conversion or exchange<br> of Capital Stock or Indebtedness (whether or not successful) and (ii) any related compensation<br> paid to employees, directors, officers, managers, contractors, consultants or advisors (or<br> their respective Controlled Investment Affiliates or Immediate Family Members) of such Parent<br> Entity; |
| --- | --- |
| (5) | amounts<br> payable pursuant to any management services or similar agreements or the management services<br> provisions in an investor rights agreement or other equityholders’ agreement (including<br> any amendment thereto or replacement thereof so long as any such amendment or replacement<br> is not materially disadvantageous in the reasonable determination of the Company to the Holders<br> when taken as a whole, as compared to the management services or similar agreements as in<br> effect immediately prior to such amendment or replacement), solely to the extent such amounts<br> are not paid directly by the Company or its Subsidiaries; and |
| --- | --- |
| (6) | amounts<br> to finance Investments that would otherwise be permitted to be made pursuant to Section 3.3<br> if made by the Company or a Restricted Subsidiary; provided that (A) such Restricted<br> Payment shall be made substantially concurrently with the closing of such Investment, (B)<br> such Parent Entity shall, immediately following the closing thereof, cause (1) all property<br> acquired (whether assets or Capital Stock) to be contributed to the capital of the Company<br> or one of its Restricted Subsidiaries or (2) the merger, consolidation or amalgamation of<br> the Person formed or acquired into the Company or one of its Restricted Subsidiaries (to<br> the extent not prohibited by Section 4.1) in order to consummate such Investment, (C) such<br> Parent Entity and its Affiliates (other than the Company or a Restricted Subsidiary) receives<br> no consideration or other payment in connection with such transaction except to the extent<br> the Company or a Restricted Subsidiary could have given such consideration or made such payment<br> in compliance with this Indenture and such consideration or other payment is included as<br> a Restricted Payment under this Indenture, (D) any property received by the Company shall<br> not increase amounts available for Restricted Payments pursuant to Section 3.3(a)(ii)<br> and (E) such Investment shall be deemed to be made by the Company or such Restricted Subsidiary<br> pursuant to a provision of Section 3.3 or pursuant to the definition of “Permitted<br> Investment*.*” |
| --- | --- |
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“Parent Holding Company” means (a) Getty Images Holdings, Inc., (b) GGH Holdco, LLC, a Delaware limited liability company, (c) GGH Operating, LLC, a Delaware limited liability company, (d) Griffey Holdings, Inc., (e) Midco, (f) AIH, (g) any other Person that is a Subsidiary of Getty Images Holdings, Inc. and of which the Company is or becomes a Subsidiary and (h) any other Person of which the Company becomes a Subsidiary; provided that immediately after the Company first becomes a Subsidiary of such Person, more than 50% of the Voting Stock of such Person shall be held by one or more Persons that held more than 50% of the Voting Stock of a Parent Holding Company of the Company immediately prior to the Company first becoming such a Subsidiary.
“Pari Passu Indebtedness” means Indebtedness of the Company which ranks equally in right of payment to the Notes or of any Guarantor which ranks equally in right of payment to the Guarantees of the Notes.
“Paying Agent” means any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Note on behalf of the Company.
“Permitted Asset Swap” means the concurrent purchase and sale or exchange of assets used or useful in a Similar Business or a combination of such assets and cash, Cash Equivalents between the Company or any of the Restricted Subsidiaries and another Person; provided that any cash or Cash Equivalents received in excess of the value of any cash or Cash Equivalents sold or exchanged must be applied in accordance with Section 3.5.
“Permitted Equity Transactions” means the transactions pursuant to or in connection with that certain Purchase and Subscription Agreement entered into as of September 4, 2018, by and among Getty Investments, L.L.C., Mark H. Getty, the Eligible-Tag Along Partners (as defined therein) party thereto, Carlyle Partners V, L.P., Carlyle Partners V-A, L.P., CP V Coinvestment A, L.P., CP V Coinvestment B, L.P., and Griffey Investors, L.P., a Delaware limited partnership.
“Permitted Holders” means, collectively, (i) the Investors, (ii) any Person who is acting solely as an underwriter in connection with a public or private offering of Capital Stock of any Parent Entity or the Company, acting in such capacity, (iii) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing, any Holding Company, Permitted Plan or any Person or group that becomes a Permitted Holder specified in the last sentence of this definition are members and any member of such group; provided that, in the case of such group and without giving effect to the existence of such group or any other group, Persons referred to in subclauses (i) through (ii), collectively, have beneficial ownership of more than 50% of the total voting power of the Voting Stock of the Company or any Parent Entity held by such group, (iv) any Holding Company and (v) any Permitted Plan. Any Person or group whose acquisition of beneficial ownership constitutes a Change of Control in respect of which a Change of Control Offer is made or waived in accordance with the requirements of this Indenture, will thereafter, together with its Affiliates, constitute an additional Permitted Holder.
“Permitted Intercompany Activities” means any transactions (A) between or among the Company and its Restricted Subsidiaries that are entered into in the ordinary course of business or consistent with past practice or industry norms of the Company and its Restricted Subsidiaries and, in the reasonable determination of the Company are necessary or advisable in connection with the ownership or operation of the business of the Company and its Restricted Subsidiaries, including (i) payroll, cash management, purchasing, insurance and hedging arrangements; (ii) management, technology and licensing arrangements; and (iii) customary loyalty and rewards programs; and (B) between or among the Company, its Restricted Subsidiaries and any Captive Insurance Subsidiary.
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“Permitted Investment” means (in each case, by the Company or any of the Restricted Subsidiaries):
| (1) | Investments<br> in (a) a Restricted Subsidiary (including the Capital Stock of, or guarantees of obligations<br> of, a Restricted Subsidiary) or the Company or (b) a Person (including the Capital Stock<br> of any such Person) that will, upon the making of such Investment, become a Restricted Subsidiary; |
|---|---|
| (2) | Investments<br> in another Person if such Person is engaged, directly or through entities that will be Restricted<br> Subsidiaries, in any Similar Business and as a result of such Investment such other Person,<br> in one transaction or a series of transactions, is merged, amalgamated, consolidated or otherwise<br> combined with or into, or transfers or conveys all or substantially all its assets (or such<br> division, business unit, product line or business) to, or is liquidated into, the Company<br> or a Restricted Subsidiary, and any Investment held by such Person; provided that<br> such Investment was not acquired by such Person in contemplation of such acquisition, merger,<br> amalgamation, consolidation, combination, transfer or conveyance; |
| --- | --- |
| (3) | Investments<br> in cash, Cash Equivalents or Investment Grade Securities; |
| --- | --- |
| (4) | Investments<br> in receivables owing to the Company or any Restricted Subsidiary created or acquired in the<br> ordinary course of business or consistent with past practice or industry norms; |
| --- | --- |
| (5) | Investments<br> in payroll, travel, entertainment, relocation, moving related and similar advances that are<br> made in the ordinary course of business or consistent with past practice or industry norms; |
| --- | --- |
| (6) | Management<br> Advances; |
| --- | --- |
| (7) | Investments<br> (including debt obligations and equity interests) (a) received in settlement, compromise<br> or resolution of debts created in the ordinary course of business or consistent with past<br> practice or industry norms, (b) in exchange for any other Investment or accounts receivable,<br> endorsements for collection or deposit held by the Company or any such Restricted Subsidiary,<br> (c) as a result of foreclosure, perfection or enforcement of any Lien, (d) in satisfaction<br> of judgments or (e) pursuant to any plan of reorganization or similar arrangement including<br> upon the bankruptcy or insolvency of a debtor or litigation, arbitration or other disputes<br> or otherwise with respect to any secured Investment or other transfer of title with respect<br> to any secured Investment in default; |
| --- | --- |
| (8) | Investments<br> made as a result of the receipt of promissory notes or other non-cash consideration (including<br> earn-outs) from a sale or other disposition of property or assets, including an Asset Disposition; |
| --- | --- |
| (9) | Investments<br> (a) existing or pursuant to binding commitments, agreements or arrangements in effect on<br> the Issue Date and any modification, replacement, renewal, reinvestment or extension thereof;<br> provided that the amount of any such Investment may not be increased except (i) as<br> required by the terms of such Investment or binding commitment as in existence on the Issue<br> Date (including in respect of any unused commitment), plus any accrued but unpaid interest<br> (including any accretion of interest, original issue discount or the issuance of pay-in-kind<br> securities) and premium payable by the terms of such Indebtedness thereon and fees and expenses<br> associated therewith as of the Issue Date or (ii) as otherwise permitted under this Indenture<br> and (b) made after the Issue Date in joint ventures of the Company or any of its Restricted<br> Subsidiaries existing on the Issue Date; |
| --- | --- |
| (10) | Hedging<br> Obligations, which transactions or obligations are not prohibited by Section 3.2; |
| --- | --- |
| (11) | pledges<br> or deposits with respect to leases or utilities provided to third parties in the ordinary<br> course of business or Liens otherwise described in the definition of “Permitted Liens”<br> or made in connection with Liens permitted under Section 3.6; |
| --- | --- |
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| (12) | any<br> Investment to the extent made using Capital Stock of the Company (other than Disqualified<br> Stock) or Capital Stock of any Parent Entity or any Unrestricted Subsidiary as consideration; |
|---|---|
| (13) | any<br> transaction to the extent constituting an Investment that is permitted by and made in accordance<br> with Section 3.8(b) (except those described in Section 3.8(b)(1), (4),<br> (8) and (9)); |
| --- | --- |
| (14) | Investments<br> consisting of (i) purchases or other acquisitions of inventory, supplies, materials, equipment<br> and similar assets or (ii) licenses, sublicenses, cross-licenses, leases, subleases, assignments,<br> contributions or other Investments of intellectual property or other intangibles or services<br> in the ordinary course of business pursuant to any joint development, joint venture or marketing<br> arrangements with other Persons or any Intercompany License Agreement and any other Investments<br> made in connection therewith; |
| --- | --- |
| (15) | (i)<br> Guarantees of Indebtedness not prohibited by Section 3.2 and (other than with respect<br> to Indebtedness) guarantees, keepwells and similar arrangements in the ordinary course of<br> business or consistent with past practice or industry norms, and (ii) performance guarantees<br> and Contingent Obligations with respect to obligations that are not prohibited by this Indenture; |
| --- | --- |
| (16) | Investments<br> consisting of earnest money deposits required in connection with a purchase agreement, or<br> letter of intent, or other acquisitions to the extent not otherwise prohibited by this Indenture; |
| --- | --- |
| (17) | Investments<br> of a Restricted Subsidiary acquired after the Issue Date or of an entity merged or amalgamated<br> into or consolidated with the Company or merged or amalgamated into or consolidated with<br> a Restricted Subsidiary after the Issue Date to the extent that such Investments were not<br> made in contemplation of or in connection with such acquisition, merger, amalgamation, or<br> consolidation and were in existence on the date of such acquisition, merger, amalgamation<br> or consolidation; |
| --- | --- |
| (18) | any<br> Investment in any Subsidiary or any joint venture in the ordinary course of business or consistent<br> with past practice or industry norms (including any cash management arrangements, cash pooling<br> arrangements, intercompany loans or activities related thereto); |
| --- | --- |
| (19) | contributions<br> to a “rabbi” trust for the benefit of any employee, director, officer, manager,<br> contractor, consultant, advisor or other service providers or other grantor trust subject<br> to claims of creditors in the case of a bankruptcy of the Company, and Investments relating<br> to non-qualified deferred payment plans in the ordinary course of business or consistent<br> with past practice or industry norms; |
| --- | --- |
| (20) | (i)<br> Investments in any joint venture in an aggregate amount not to exceed $100.0 million and<br> (ii) Investments by (x) any Restricted Subsidiary that is not a Guarantor in any joint venture<br> or Unrestricted Subsidiary or (y) the Company or any Guarantor in any Restricted Subsidiary<br> that is not the Company or a Guarantor or in any joint venture or Unrestricted Subsidiary<br> in an aggregate amount pursuant to the foregoing clauses (x) and (y) not to exceed the greater<br> of $50.0 million and 15.0% of LTM EBITDA (provided that (i) intercompany current liabilities<br> incurred in the ordinary course of business and consistent with past practice in connection<br> with the cash management operations of the Company and its Restricted Subsidiaries shall<br> not be included in calculating such limitation and (ii) such limitation shall be net of (A)<br> any Investment by any such Person specified in clause (i) or (ii) in the Company or any Guarantor<br> and (B) any return or distribution of capital or repayments of principal in respect thereof<br> at any time outstanding not to exceed the fair market value of the Investment made); provided,<br> however, that if any Investment pursuant to this clause is made in any Person that<br> is not the Company or a Restricted Subsidiary at the date of the making of such Investment<br> and such person becomes the Company or a Restricted Subsidiary after such date, such Investment<br> shall thereafter be deemed to have been made pursuant to clause (1) or (2) above and shall<br> cease to have been made pursuant to this clause; |
| --- | --- |
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| (21) | additional<br> Investments having an aggregate fair market value, taken together with all other Investments<br> made pursuant to this clause (21) that are at that time outstanding, not to exceed the greater<br> of $103.0 million and 33.0% of LTM EBITDA (with the fair market value of each Investment<br> being measured at the time made and without giving effect to subsequent changes in value);<br> provided, however, that if any Investment pursuant to this clause is made in<br> any Person that is not the Company or a Restricted Subsidiary at the date of the making of<br> such Investment and such Person becomes the Company or a Restricted Subsidiary after such<br> date such Investment shall thereafter be deemed to have been made pursuant to clause (1)<br> or (2) above and shall cease to have been made pursuant to this clause (21); |
|---|---|
| (22) | any<br> Investment in a Similar Business having an aggregate fair market value, taken together with<br> all other Investments made pursuant to this clause (22) that are at that time outstanding,<br> not to exceed the greater of $31.0 million and 10.0% of LTM EBITDA (with the fair market<br> value of each Investment being measured at the time made and without giving effect to subsequent<br> changes in value), with the fair market value of each Investment being measured at the time<br> made and without giving effect to subsequent changes in value; provided, however,<br> that if any Investment pursuant to this clause is made in any Person that is not the Company<br> or a Restricted Subsidiary at the date of the making of such Investment and such Person becomes<br> the Company or a Restricted Subsidiary after such date, such Investment shall thereafter<br> be deemed to have been made pursuant to clause (1) or (2) above and shall cease to have been<br> made pursuant to this clause (22); |
| --- | --- |
| (23) | (i)<br> Investments arising in connection with a Qualified Securitization Financing or Receivables<br> Facility and (ii) distributions or payments of Securitization Fees and purchases of Securitization<br> Assets or Receivables Assets in connection with a Qualified Securitization Financing or Receivables<br> Facility; |
| --- | --- |
| (24) | [reserved]; |
| --- | --- |
| (25) | repurchases<br> of Notes; |
| --- | --- |
| (26) | Investments<br> by an Unrestricted Subsidiary entered into prior to the day such Unrestricted Subsidiary<br> is redesignated as a Restricted Subsidiary as described under Section 3.19; |
| --- | --- |
| (27) | guaranty<br> and indemnification obligations arising in connection with surety bonds issued in the ordinary<br> course of business or consistent with past practice or industry norms; |
| --- | --- |
| (28) | Investments<br> (a) consisting of purchases and acquisitions of assets or services in the ordinary course<br> of business or consistent with past practice or industry norms, (b) made in the ordinary<br> course of business or consistent with past practice or industry norms in connection with<br> obtaining, maintaining or renewing client, franchisee and customer contracts and loans or<br> (c) advances, loans, extensions of credit (including the creation of receivables) or prepayments<br> made to, and guarantees with respect to obligations of, franchisees, distributors, suppliers,<br> lessors, licensors and licensees in the ordinary course of business or consistent with past<br> practice or industry norms; |
| --- | --- |
| (29) | Investments<br> in prepaid expenses, negotiable instruments held for collection and lease, utility and workers<br> compensation, performance and similar deposits entered into as a result of the operations<br> of the business in the ordinary course of business or consistent with past practice or industry<br> norms; |
| --- | --- |
| (30) | Investments<br> consisting of UCC Article 3 endorsements for collection or deposit and Article 4 trade arrangements<br> with customers (or any comparable or similar provisions in other applicable jurisdictions)<br> in the ordinary course of business or consistent with past practice or industry norms; |
| --- | --- |
| (31) | any<br> Investment by any Captive Insurance Subsidiary in connection with the provision of insurance<br> to the Company or any of its Subsidiaries, which Investment is made in the ordinary course<br> of business or consistent with past practice of such Captive Insurance Subsidiary or industry<br> norms, or by reason of applicable law, rule, regulation or order, or that is required or<br> approved by any regulatory authority having jurisdiction over such Captive Insurance Subsidiary<br> or its business, as applicable; |
| --- | --- |
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| (32) | Investments<br> in connection with any Permitted Intercompany Activities, Permitted Tax Restructuring or<br> related transactions; |
|---|---|
| (33) | Investments<br> made from casualty insurance proceeds in connection with the replacement, substitution, restoration<br> or repair of assets on account of a Casualty Event; |
| --- | --- |
| (34) | any<br> other Investment so long as, immediately after giving pro forma effect to the Investment<br> and the incurrence of any Indebtedness the net proceeds of which are used to make such Investment,<br> (i) the Consolidated Total Leverage Ratio shall be no greater than (A) prior to the Merger<br> Closing Date, shall be no greater than 3.25:1.00 and (B) on and after the Merger Closing<br> Date, shall be no greater than 2.00:1.00 or (ii) the Consolidated Total Leverage Ratio would<br> not be higher than it was immediately prior to such Investment; and |
| --- | --- |
| (35) | Investments<br> made on or prior to the Merger Closing Date to consummate the Merger. |
| --- | --- |
“Permitted Liens” means, with respect to any Person:
| (1) | Liens<br> on assets or property of a Restricted Subsidiary that is not a Guarantor securing (i) Indebtedness<br> in an aggregate principal amount not exceeding the greater of $75.0 million and 20.0% of<br> LTM EBITDA and (ii) other Obligations of any Restricted Subsidiary that is not a Guarantor; |
|---|---|
| (2) | pledges,<br> deposits or Liens (a) in connection with workmen’s compensation laws, payroll Taxes,<br> unemployment insurance laws, employers’ health Tax and other social security laws or<br> similar legislation or other insurance related obligations (including in respect of deductibles,<br> self-insured retention amounts and premiums and adjustments thereto), (b) securing liability,<br> reimbursement or indemnification obligations of (including obligations in respect of letters<br> of credit or bank guarantees or similar instruments) for the benefit of insurance carriers<br> under insurance or self- insurance arrangements or otherwise supporting the payments of items<br> set forth in the foregoing clause (a), or (c) in connection with bids, tenders, completion<br> guarantees, contracts, leases, utilities, licenses, public or statutory obligations, or to<br> secure the performance of bids, trade contracts, government contracts and leases, statutory<br> obligations, surety, stay, indemnity, warranty, release, judgment, customs, appeal, performance<br> bonds, guarantees of government contracts, return of money bonds, bankers’ acceptance<br> facilities and obligations of a similar nature (including those to secure health, safety<br> and environmental obligations), and obligations in respect of letters of credit, bank guarantees<br> or similar instruments that have been posted to support the same, or as security for contested<br> Taxes or import or customs duties or for the payment of rent, or other obligations of like<br> nature, in each case incurred in the ordinary course of business or consistent with past<br> practice or industry norms; |
| --- | --- |
| (3) | Liens<br> with respect to outstanding motor vehicle fines and Liens imposed by law or regulation, including<br> carriers’, warehousemen’s, mechanics’, landlords’, suppliers’,<br> materialmen’s, repairmen’s, architects’, construction contractors’<br> or other similar Liens, in each case (x) for amounts not overdue for a period of more than<br> 60 days or, if more than 60 days overdue, are unfiled and no other action has been taken<br> to enforce such Liens or that are being contested in good faith by appropriate proceedings<br> or (y) so long as such Liens do not individually or in the aggregate have a material adverse<br> effect on the Company and its Subsidiaries, taken as a whole; |
| --- | --- |
| (4) | Liens<br> for Taxes, assessments or other governmental charges, in each case (i) that are not yet due<br> and payable, (ii) that are being contested in good faith by appropriate proceedings and with<br> respect to which appropriate reserves required pursuant to GAAP (or other applicable accounting<br> principles) have been made in respect thereof, (iii) the non-payment of which would not,<br> individually or in the aggregate, reasonably be expected to have a material adverse effect<br> on the Company and its Restricted Subsidiaries, taken as a whole, or (iv) for property Taxes<br> on property of the Company or one of its Subsidiaries that the Company (or the applicable<br> Subsidiary) has determined to abandon if the sole recourse for such Tax is to such property; |
| --- | --- |
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| (5) | encumbrances,<br> charges, ground leases, easements (including reciprocal easement agreements), survey exceptions,<br> restrictions, encroachments, protrusions, by-law, regulation, zoning restrictions or reservations<br> of, or rights of others for, licenses, rights of way, servitudes, sewers, electric lines,<br> drains, telegraph, telephone and cable television lines and other similar purposes, or zoning,<br> building codes or other restrictions (including minor defects and irregularities in title<br> and similar encumbrances) as to the use of real properties, exceptions on title policies<br> insuring Liens granted on any mortgaged properties or any other collateral or Liens incidental<br> to the conduct of the business of such Person or to the ownership of its properties, including<br> servicing agreements, development agreements, site plan agreements, subdivision agreements,<br> facilities sharing agreements, cost sharing agreements and other similar agreements, charges<br> or encumbrances, which do not in the aggregate materially interfere with the ordinary course<br> conduct of the business of the Company and its Restricted Subsidiaries, taken as a whole; |
|---|---|
| (6) | Liens<br> (a) securing Hedging Obligations, Cash Management Obligations and the costs thereof; (b)<br> that are rights of set-off, rights of pledge or other bankers’ Liens (i) relating to<br> treasury, depository and cash management services or any automated clearing house transfers<br> of funds in the ordinary course of business or consistent with past practice or industry<br> norms, (ii) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft<br> or similar obligations incurred in the ordinary course of business of the Company or any<br> Subsidiary or consistent with past practice or industry norms or (iii) relating to purchase<br> orders and other agreements entered into with customers of the Company or any Restricted<br> Subsidiary in the ordinary course of business or consistent with past practice or industry<br> norms; (c) on cash accounts securing Indebtedness and other Obligations permitted to be incurred<br> under Section 3.2(b)(8)(v) with financial institutions; (d) encumbering reasonable<br> customary initial deposits and margin deposits and similar Liens attaching to commodity trading<br> accounts or other brokerage accounts incurred in the ordinary course of business or consistent<br> with past practice or industry norms and not for speculative purposes; and (e) (i) of a collection<br> bank arising under Section 4-210 of the UCC or any comparable or successor provision on items<br> in the course of collection and (ii) in favor of a banking or other financial institution<br> or electronic payment service providers arising as a matter of law encumbering deposits (including<br> the right of set-off) arising in the ordinary course of business in connection with the maintenance<br> of such accounts and (iii) arising under customary general terms and conditions of the account<br> bank in relation to any bank account maintained with such bank and attaching only to such<br> account and the products and proceeds thereof, which Liens, in any event, do not secure any<br> Indebtedness; |
| --- | --- |
| (7) | leases,<br> licenses, subleases and sublicenses of assets (including real property, intellectual property,<br> software and other technology rights), in each case entered into in the ordinary course of<br> business, consistent with past practice or industry norms or, with respect to intellectual<br> property, software and other technology rights, that are not material to the conduct of the<br> business of the Company and its Restricted Subsidiaries, taken as a whole; |
| --- | --- |
| (8) | Liens<br> securing or otherwise arising out of judgments, decrees, attachments, orders or awards not<br> giving rise to an Event of Default under Section 6.1(a)(7); |
| --- | --- |
| (9) | Liens<br> (a) securing Capitalized Lease Obligations, or Purchase Money Obligations (including any<br> Liens securing Indebtedness and other Obligations under Section 3.2(b)(7)), or securing<br> the payment of all or a part of the purchase price of, or securing Indebtedness or other<br> Obligations incurred to finance or refinance the acquisition, improvement or construction<br> of, assets or property acquired or constructed in the ordinary course of business; provided<br> that (i) the aggregate principal amount of Indebtedness secured by such Liens is otherwise<br> permitted to be incurred under this Indenture and (ii) any such Liens may not extend to any<br> assets or property of the Company or any Restricted Subsidiary other than assets and property<br> affixed or appurtenant thereto and accessions, additions, improvements, proceeds, dividends<br> or distributions thereof, including after-acquired property that is (A) affixed or incorporated<br> into the property or assets covered by such Lien, (B) after-acquired property or assets subject<br> to a Lien securing such Indebtedness, the terms of which Indebtedness require or include<br> a pledge of after-acquired property or assets and (C) the proceeds and products thereof and<br> (b) securing any interest or title of a lessor, sublessor, franchisor, licensor or sublicensor<br> or secured by a lessor’s, sublessor’s, franchisor’s, licensor’s or<br> sublicensor’s interest under any Capitalized Lease Obligations or Non-Financing Lease<br> Obligations; |
| --- | --- |
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| (10) | Liens<br> arising from UCC financing statements, including precautionary financing statements (or similar<br> filings) regarding operating leases or consignments entered into by the Company and its Restricted<br> Subsidiaries; |
|---|---|
| (11) | Liens<br> existing on the Issue Date (excluding Liens securing the Credit Agreement and the Existing<br> Senior Secured Notes), including any Liens securing any Refinancing Indebtedness of any Indebtedness<br> secured by such Liens; |
| --- | --- |
| (12) | Liens<br> on property, other assets or shares of stock of a Person at the time such Person becomes<br> a Subsidiary (or at the time the Company or a Subsidiary acquires such property, other assets<br> or shares of stock, including any acquisition by means of a merger, amalgamation, consolidation<br> or other business combination transaction with or into the Company or any Restricted Subsidiary);<br> provided, however, that such Liens are not created in anticipation of such<br> other Person becoming a Subsidiary (or such acquisition of such property, other assets or<br> stock); provided, further, that such Liens are limited to all or part of the<br> same property, other assets or stock (plus property and assets affixed or appurtenant thereto<br> and additions, improvements, accessions, proceeds, dividends or distributions thereof, including<br> after-acquired property that is (i) affixed or incorporated into the property or assets covered<br> by such Lien, (ii) after-acquired property or assets subject to a Lien securing such Indebtedness,<br> the terms of which Indebtedness require or include a pledge of after-acquired property or<br> assets and (iii) the proceeds and products thereof) that secured (or, under the written arrangements<br> under which such Liens arose, could secure) the Obligations relating to any Indebtedness<br> or other obligations to which such Liens relate; |
| --- | --- |
| (13) | Liens<br> securing Obligations relating to any Indebtedness or other obligations of the Company or<br> a Restricted Subsidiary owing to the Company or another Restricted Subsidiary, or Liens in<br> favor of the Company or any Restricted Subsidiary or the Trustee; |
| --- | --- |
| (14) | Liens<br> securing Refinancing Indebtedness incurred to refinance Indebtedness that was previously<br> so secured, and permitted to be secured under this Indenture; provided that any such<br> Lien is limited to all or part of the same property or assets (plus property and assets affixed<br> or appurtenant thereto and additions, improvements, accessions, proceeds, dividends or distributions<br> thereof, including after-acquired property that is (i) affixed or incorporated into the property<br> or assets covered by such Lien, (ii) after-acquired property or assets subject to a Lien<br> securing such Indebtedness, the terms of which Indebtedness require or include a pledge of<br> after-acquired property or assets and (iii) the proceeds and products thereof) that secured<br> (or, under the written arrangements under which the original Lien arose, could secure) the<br> Obligations relating to the Indebtedness or other obligations being refinanced or is in respect<br> of property or assets that is or could be the security for or subject to a Permitted Lien<br> hereunder; |
| --- | --- |
| (15) | (a)<br> mortgages, liens, security interests, restrictions, encumbrances or any other matters of<br> record that have been placed by any government, statutory or regulatory authority, developer,<br> landlord or other third party on property over which the Company or any Restricted Subsidiary<br> has easement rights or on any leased property and subordination or similar arrangements relating<br> thereto and (b) any condemnation or eminent domain proceedings affecting any real property; |
| --- | --- |
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| (16) | any<br> encumbrance or restriction (including put and call arrangements) with respect to Capital<br> Stock of any joint venture secured financing arrangement, joint venture or similar arrangement<br> pursuant to any joint venture secured financing arrangement, joint venture or similar agreement; |
|---|---|
| (17) | Liens<br> on property or assets under construction (and related rights) in favor of a contractor or<br> developer or arising from progress or partial payments by a third party relating to such<br> property or assets; |
| --- | --- |
| (18) | Liens<br> arising out of conditional sale, title retention, hire purchase, consignment or similar arrangements<br> for the sale or purchase of goods entered into in the ordinary course of business or consistent<br> with past practice or industry norms; |
| --- | --- |
| (19) | Liens<br> securing Indebtedness and other Obligations (a) incurred pursuant to Credit Facilities, including<br> any letter of credit facility relating thereto, under Section 3.2(b)(1) and (b) in<br> respect of obligations of the Company or any Subsidiary in respect of any Cash Management<br> Obligation or Hedging Obligation provided by any lender party to any Credit Facility or Affiliate<br> of such lender (or any Person that was a lender or an Affiliate of a lender at the time the<br> applicable agreements in respect of such Cash Management Obligation or Hedging Obligation<br> were entered into); provided that any such Liens on the Collateral shall be subject<br> to Applicable Intercreditor Arrangements; |
| --- | --- |
| (20) | Liens<br> securing Indebtedness and other Obligations under Section 3.2(b)(5); provided<br> that such Liens shall only be permitted if such Liens are limited to all or part of the same<br> property or assets, including Capital Stock (plus property and assets affixed or appurtenant<br> thereto and additions, improvements, accessions, proceeds, dividends or distributions thereof,<br> including after-acquired property that is (i) affixed or incorporated into the property or<br> assets covered by such Lien, (ii) after-acquired property or assets subject to a Lien securing<br> such Indebtedness, the terms of which Indebtedness require or include a pledge of after-acquired<br> property or assets and (iii) the proceeds and products thereof) acquired, or of any Person<br> acquired or merged, consolidated or amalgamated with or into the Company or any Restricted<br> Subsidiary, in any transaction to which such Indebtedness or other Obligation relates; |
| --- | --- |
| (21) | Liens<br> securing Indebtedness and other Obligations under Section 3.2(b)(21); provided<br> that any such Liens on the Collateral shall be subject to Applicable Intercreditor Arrangements; |
| --- | --- |
| (22) | Liens<br> securing Indebtedness and other Obligations of any Non-Guarantor covering only assets of<br> such Subsidiary securing (i) Indebtedness of such Non-Guarantor (excluding, for the avoidance<br> of doubt, guarantee obligations in respect of Indebtedness of the Company or any Guarantor)<br> in an aggregate principal amount not exceeding the greater of $75.0 million and 20.0% of<br> LTM EBITDA and (ii) other obligations of such Non-Guarantor, as applicable; |
| --- | --- |
| (23) | Liens<br> on Capital Stock or other securities or assets of any Unrestricted Subsidiary that secure<br> Indebtedness or other obligations of such Unrestricted Subsidiary; |
| --- | --- |
| (24) | Liens<br> deemed to exist in connection with Investments permitted under clause (4) of the definition<br> of “Cash Equivalents”; |
| --- | --- |
| (25) | Liens<br> on (i) goods the purchase price of which is financed by a documentary letter of credit issued<br> for the account of the Company or any of its Subsidiaries or Liens on bills of lading, drafts<br> or other documents of title arising by operation of law or pursuant to the standard terms<br> of agreements relating to letters of credit, bank guarantees and other similar instruments<br> and (ii) specific items of inventory or other goods and proceeds of any Person securing such<br> Person’s obligations in respect of bankers’ acceptances or documentary letters<br> of credit issued or created for the account of such Person to facilitate the purchase, shipment<br> or storage of such inventory or other goods; |
| --- | --- |
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| (26) | Liens<br> on vehicles or equipment of the Company or any Restricted Subsidiary in the ordinary course<br> of business or consistent with past practice or industry norms; |
|---|---|
| (27) | Liens<br> on assets or securities deemed to arise in connection with and solely as a result of the<br> execution, delivery or performance of contracts to sell such assets or securities if such<br> sale is otherwise not prohibited by this Indenture; |
| --- | --- |
| (28) | (a)<br> Liens on insurance policies and the proceeds thereof securing the financing of the premiums<br> with respect thereto, and (b) Liens, pledges, deposits made or other security provided to<br> secure liabilities to, or indemnification obligations of (including obligations in respect<br> of letters of credit or bank guarantees for the benefits of), insurance carriers in the ordinary<br> course of business or consistent with past practice or industry norms; |
| --- | --- |
| (29) | Liens<br> solely on any cash earnest money deposits made in connection with any letter of intent or<br> purchase agreement permitted under this Indenture; |
| --- | --- |
| (30) | Liens<br> (i) on cash advances or escrow deposits in favor of the seller of any property to be acquired<br> in an Investment permitted under this Indenture to be applied against the purchase price<br> for such Investment or otherwise in connection with any escrow arrangements with respect<br> to any such Investment (including any letter of intent or purchase agreement with respect<br> to such Investment) and (ii) consisting of an agreement to sell, transfer, lease or otherwise<br> dispose of any property in an asset sale, in each case, solely to the extent such Investment<br> or sale, transfer, lease or other disposition, as the case may be, would have been permitted<br> on the date of the creation of such Lien; |
| --- | --- |
| (31) | Liens<br> securing Indebtedness and other Obligations in an aggregate principal amount not to exceed<br> the greater of (i) $31.0 million and (ii) 10.0% of LTM EBITDA at the time incurred; provided<br> that any such Liens on the Collateral shall be subject to Applicable Intercreditor Arrangements; |
| --- | --- |
| (32) | Liens<br> then existing with respect to assets of an Unrestricted Subsidiary on the day such Unrestricted<br> Subsidiary is redesignated as a Restricted Subsidiary as described under Section 3.19; |
| --- | --- |
| (33) | Liens<br> securing Indebtedness or other Obligations permitted under Section 3.2; provided<br> that with respect to (a) Liens securing Secured Pari Passu Indebtedness or other Obligations<br> secured by a Lien on the Collateral on an equivalent priority basis (without regard to control<br> of remedies) with the Lien on the Collateral securing the Notes Obligations, at the time<br> of incurrence and after giving pro forma effect thereto, the Consolidated First Lien Secured<br> Leverage Ratio would be no greater than 3.00:1.00 or (b) Liens securing Secured Junior Indebtedness<br> or other Obligations secured by a Lien on the Collateral on junior priority basis (without<br> regard to control of remedies) with the Lien on the Collateral securing the Notes Obligations,<br> at the time of incurrence and after giving pro forma effect thereto, the Consolidated Total<br> Leverage Ratio would be (i) prior to the Merger Closing Date, shall be no greater than 5.00:1.00<br> and (ii) on and after the Merger Closing Date, shall be no greater than 4.00:1.00; provided,<br> further, that any such Liens shall be subject to Applicable Intercreditor Arrangements; |
| --- | --- |
| (34) | Liens<br> deemed to exist in connection with Investments in repurchase agreements permitted under Section<br> 3.2; provided that such Liens do not extend to any assets other than those that are<br> the subject of such repurchase agreement; |
| --- | --- |
| (35) | Liens<br> arising in connection with a Qualified Securitization Financing or a Receivables Facility; |
| --- | --- |
| (36) | Settlement<br> Liens; |
| --- | --- |
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| (37) | rights<br> of recapture of unused real property in favor of the seller of such property set forth in<br> customary purchase agreements and related arrangements with any government, statutory or<br> regulatory authority; |
|---|---|
| (38) | the<br> rights reserved to or vested in any Person or government, statutory or regulatory authority<br> by the terms of any lease, license, franchise, grant or permit held by the Company or any<br> Restricted Subsidiary or by a statutory provision, to terminate any such lease, license,<br> franchise, grant or permit, or to require annual or periodic payments as a condition to the<br> continuance thereof; |
| --- | --- |
| (39) | restrictive<br> covenants affecting the use to which real property may be put and Liens or covenants restricting<br> or prohibiting access to or from lands abutting on controlled access highways or covenants<br> affecting the use to which lands may be put; provided that such Liens or covenants<br> do not interfere with the ordinary conduct of the business of the Company or any Restricted<br> Subsidiary; |
| --- | --- |
| (40) | Liens<br> on property, assets or Permitted Investments used to defease or to satisfy or discharge Indebtedness;<br> provided that such defeasance, satisfaction or discharge is not prohibited by this<br> Indenture; |
| --- | --- |
| (41) | Liens<br> relating to escrow arrangements securing Indebtedness, including (i) Liens on escrowed proceeds<br> from the issuance of Indebtedness for the benefit of the related holders of debt securities<br> or other Indebtedness (or the underwriters, arrangers, trustee or collateral agent thereof)<br> and (ii) Liens on cash or Cash Equivalents set aside at the time of the incurrence of any<br> Indebtedness, in either case to the extent such cash or Cash Equivalents prefund the payment<br> of interest or premium or discount on such Indebtedness (or any costs related to the issuance<br> of such Indebtedness) and are held in an escrow account or similar arrangement to be applied<br> for such purpose; |
| --- | --- |
| (42) | Liens<br> securing the Notes (other than any Additional Notes), the Notes Obligations and the related<br> Guarantees (including any Liens on the Escrow Account in favor of the Notes); |
| --- | --- |
| (43) | Liens<br> on assets securing any Indebtedness owed to any Captive Insurance Subsidiary by the Company<br> or any Restricted Subsidiary; and |
| --- | --- |
| (44) | Liens<br> arising in connection with any Permitted Intercompany Activities, Permitted Tax Restructuring<br> or related transactions. |
| --- | --- |
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 Company in its 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 this definition of “Permitted Liens” to which such Permitted Lien has been classified or reclassified.
“Permitted Plan” means any employee benefits plan of the Company or any of its Affiliates and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan.
“Permitted Tax Amount” means for any taxable period for which the Company and/or any of its Subsidiaries is a member (or is an entity treated for U.S. federal income tax purposes as disregarded as separate from a member) of a group filing a consolidated, group, affiliate, unitary, combined or similar income or similar tax return with any Parent Entity, any dividends or other distributions to fund any such Taxes for which such Parent Entity is liable that are attributable to the taxable income of the Company and/or its applicable Subsidiaries, in an aggregate amount not to exceed the amount of any such Taxes that the Company and its applicable Subsidiaries, as applicable, would have been required to pay for such taxable period if the Company and such Subsidiaries filed such income or similar tax returns on a consolidated, combined, group, affiliated, unitary or similar basis on behalf of a consolidated, combined, affiliated, unitary or similar group consisting only of the Company and such Subsidiaries; provided that any permitted distributions described in this definition that are attributable to the taxable income of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid by any Unrestricted Subsidiary to the Company or any Guarantor for such purposes; provided, further, that any distributions otherwise described in this definition shall be permitted only to the extent such distributions relate to Taxes that are paid after the Issue Date.
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“Permitted Tax Restructuring” means any reorganizations, restructurings and other activities related to Tax planning, Tax reorganization or any Tax restructuring entered into prior to, on or after the Issue Date so long as such Permitted Tax Restructuring is not materially adverse to the holders of the Notes (as determined by the Company in its sole good faith discretion). For purposes of clarity, a Permitted Tax Restructuring includes (but is not limited to) reorganizations, restructurings, and other activities related to Tax planning, Tax reorganization, or any Tax restructuring entered into by or among any Parent Entity and any Subsidiary of the Company.
“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company, government or any agency or political subdivision thereof or any other entity.
“Post-Acquisition Period” shall mean, with respect to any Investment, sale, transfer or other Asset Disposition of assets or property, implementation or incurrence or repayment of Indebtedness, Restricted Payment, designation of a Subsidiary as an Unrestricted Subsidiary or other event that by the terms of the Notes Documents requires pro forma with a test or covenant hereunder or requires such test or covenant to be calculated on a pro forma basis or to be given pro forma effect, the period beginning on the date such transaction is consummated and ending on the last day of the second full consecutive fiscal quarter immediately following the date on which such transaction is consummated.
“Post-Petition Interest” means any interest or entitlement to fees or expenses or other charges that accrue after the commencement of any bankruptcy or other Insolvency or Liquidation Proceeding, whether or not allowed or allowable as a claim in any such bankruptcy or Insolvency or Liquidation Proceeding.
“Predecessor Note” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.11 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Note.
“Preferred Equity Offering” means the issuance of preferred stock by Griffey Global Holdings, Inc., a Delaware corporation, and of partnership units by Griffey Investors, L.P., a Delaware limited partnership, under that certain Securities Purchase Agreement, dated as of February 19, 2019.
“Preferred Stock,” as applied to the Capital Stock of any Person, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person.
“Priming Financing/Liability Management Transaction” means any exchange (or any similar transaction specifically designed to circumvent the restriction set forth under Section 3.14 but contemporaneously achieve the same effect as an exchange) of any Notes with issuance of Indebtedness for borrowed money the Company or any of its Subsidiaries (the “New LMT Debt”) in a transaction that is not for a bona fide business purpose and instead is specifically designed to “uptier” holders of the Notes on a non-pro rata basis into New LMT Debt that is contractually or structurally senior relative to the then existing Notes. For the avoidance of doubt, none of the following shall constitute a Priming Financing/Liability Management Transaction:
| (1) | any<br> Indebtedness incurred to finance an acquisition secured by the acquired assets and/or guaranteed<br> by an acquired entity, so along as such Indebtedness and the acquisition are permitted under<br> this Indenture and any acquired assets that constitute Collateral are pledged to the Notes<br> Collateral Agent, for the benefit of the Notes Secured Parties, and any acquired entity that<br> is or becomes a Restricted Subsidiary complies with the applicable guarantee collateral requirements<br> set forth in this Indenture to the extent required (and within the periods required) by this<br> Indenture; |
|---|
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| (2) | any<br> Indebtedness that is contractually or structurally senior to the Liens securing the Notes<br> Obligations prior to the announcement of such Priming Financing/Liability Management Transaction;<br> and |
|---|---|
| (3) | any<br> Refinancing Indebtedness permitted to be incurred under this Indenture. |
| --- | --- |
“Pro Forma Adjustment” means, for the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements are available that includes all or any part of a fiscal quarter included in any Post-Acquisition Period with respect to the Acquired EBITDA of the applicable Pro Forma Entity or the Consolidated EBITDA of the Issuer, the pro forma increase or decrease in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, projected by the Issuer in good faith (which determination shall be conclusive) as a result of (a) actions taken or to be taken, prior to or during such Post-Acquisition Period, for the purposes of realizing reasonably identifiable and factually supportable cost savings and synergies, or (b) any additional costs incurred prior to or during such Post-Acquisition Period in connection with the combination of the operations of such Pro Forma Entity with the operations of the Issuer and the Restricted Subsidiaries; provided that so long as such actions are taken prior to or during such Post-Acquisition Period or such costs are incurred prior to or during such Post-Acquisition Period it may be assumed, for the purposes of projecting such pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, that such cost savings and synergies will be realizable during the entirety of such four consecutive fiscal quarters period, or such additional costs (other than non-recurring costs) will be incurred during the entirety of such four consecutive fiscal quarters period; provided, further, that any such pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, shall be without duplication for cost savings, synergies or additional costs already included in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, for such four consecutive fiscal quarters period; provided, further, that amounts included in determining Consolidated EBITDA pursuant to clause (xi) of the definition of “Consolidated EBITDA” and pursuant to this definition shall not, in the aggregate, exceed 20.0% of Consolidated EBITDA (prior to giving effect to such adjustments) in the aggregate for any four consecutive fiscal quarters period.
“Public Company Costs” means, as to any Person, costs associated with, or in anticipation of, or preparation for, compliance with the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and costs relating to compliance with the provisions of the Securities Act and the Exchange Act or any other comparable body of laws, rules or regulations, as companies with listed equity, directors’ compensation, fees and expense reimbursement, costs relating to enhanced accounting functions and investor relations, stockholder meetings and reports to stockholders, directors’ and officers’ insurance and other executive costs, legal and other professional fees, listing fees and other transaction costs, in each case to the extent arising solely by virtue of the listing of such Person’s equity securities on a national securities exchange or issuance of public debt securities.
“Purchase Money Obligations” means any Indebtedness incurred to finance or refinance the acquisition, leasing, expansion, construction, installation, replacement, repair or improvement of property (real or personal), equipment or assets (including Capital Stock), and whether acquired through the direct acquisition of such property or assets, or the acquisition of the Capital Stock of any Person owning such property or assets, or otherwise.
“QIB” means any “qualified institutional buyer” as such term is defined in Rule 144A.
“Qualified Securitization Financing” means any Securitization Facility that meets the following conditions: (i) the Board of Directors shall have determined in good faith that such Securitization Facility (including financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to the Company and its Restricted Subsidiaries, (ii) all sales of Securitization Assets and related assets by the Company or any Restricted Subsidiary to the Securitization Subsidiary or any other Person are made for fair consideration (as determined in good faith by the Company) and (iii) the financing terms, covenants, termination events and other provisions thereof shall be fair and reasonable terms (as determined in good faith by the Company) and may include Standard Securitization Undertakings.
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“Receivables Assets” means (a) any accounts receivable owed to the Company or a Restricted Subsidiary subject to a Receivables Facility and the proceeds thereof and (b) all collateral securing such accounts receivable, all contracts and contract rights, guarantees or other obligations in respect of such accounts receivable, all records with respect to such accounts receivable and any other assets customarily transferred together with accounts receivable in connection with a non-recourse accounts receivable factoring arrangement.
“Receivables Facility” means an arrangement between the Company or a Subsidiary and a commercial bank, an asset based lender or other financial institution or an Affiliate thereof pursuant to which (a) the Company or such Subsidiary, as applicable, sells (directly or indirectly) to such commercial bank, asset based lender or other financial institution (or such Affiliate) Receivables Assets and (b) the obligations of the Company or such Restricted Subsidiary, as applicable, thereunder are non-recourse (except for Securitization Repurchase Obligations) to the Company and such Subsidiary and (c) the financing terms, covenants, termination events and other provisions thereof shall be on market terms (as determined in good faith by the Company) and may include Standard Securitization Undertakings, and shall include any guaranty in respect of such arrangements.
“Refinance” means refinance, refund, replace, renew, repay, modify, restate, defer, substitute, supplement, reissue, resell, extend or increase (including pursuant to any defeasance or discharge mechanism) and the terms “refinances,” “refinanced” and “refinancing” as used for any purpose in this Indenture shall have a correlative meaning.
“Refinancing Indebtedness” means Indebtedness that is incurred to refund, refinance, replace, exchange, renew, repay or extend (including pursuant to any defeasance or discharge mechanism) any Indebtedness (or unutilized commitment in respect of Indebtedness) existing on the Issue Date or incurred (or established) in compliance with this Indenture (including Indebtedness of the Company that refinances Indebtedness of any Restricted Subsidiary and Indebtedness of any Restricted Subsidiary that refinances Indebtedness of the Company or another Restricted Subsidiary) including Indebtedness that refinances Refinancing Indebtedness, and Indebtedness incurred pursuant to a commitment that refinances any Indebtedness or unutilized commitment; provided, however, that:
| (1) | (a)<br> such Refinancing Indebtedness has a Weighted Average Life to Maturity at the time such Refinancing<br> Indebtedness is incurred which is not less than the remaining Weighted Average Life to Maturity<br> of the Indebtedness being refunded, refinanced, replaced, exchanged, renewed, repaid or extended<br> (or requires no or nominal payments in cash (other than interest payments) prior to the date<br> that is 91 days after the maturity date of the Notes); and (b) to the extent such Refinancing<br> Indebtedness refinances Subordinated Indebtedness, Disqualified Stock or Preferred Stock,<br> such Refinancing Indebtedness is Subordinated Indebtedness, Disqualified Stock or Preferred<br> Stock, respectively, and, in the case of Subordinated Indebtedness, is subordinated to the<br> Notes on terms at least as favorable to the Holders as those contained in the documentation<br> governing the Indebtedness being refinanced; |
|---|---|
| (2) | Refinancing<br> Indebtedness shall not include: |
| --- | --- |
(i) Indebtedness of a Subsidiary of the Company that is not a Guarantor that refinances Indebtedness of the Company or a Guarantor; or
(ii) Indebtedness of the Company or a Restricted Subsidiary that refinances Indebtedness of an Unrestricted Subsidiary; and
| (3) | such<br> Refinancing Indebtedness is incurred in an aggregate principal amount (or if issued with<br> original issue discount, an aggregate issue price) that is equal to or less than the sum<br> of (x) the aggregate principal amount (or if issued with original issue discount, the aggregate<br> accreted value) then outstanding of the Indebtedness being Refinanced, plus (y) an amount<br> equal to any unutilized commitment relating to the Indebtedness being refinanced or otherwise<br> then outstanding under a Credit Facility or other financing arrangement being refinanced<br> to the extent the unutilized commitment being refinanced could be drawn in compliance with<br> Section 3.2 immediately prior to such refinancing, plus (z) accrued and unpaid interest,<br> dividends, premiums (including tender premiums), defeasance costs, underwriting discounts,<br> fees, costs and expenses (including original issue discount, upfront fees or similar fees)<br> in connection with such refinancing; |
|---|
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provided, that clause (1) above will not apply to any extension, replacement, refunding, refinancing, renewal or defeasance of any Credit Facilities or Secured Indebtedness. Refinancing Indebtedness in respect of any Credit Facility or any other Indebtedness may be incurred from time to time after the termination, discharge or repayment of any such Credit Facility or other Indebtedness.
“Regulated Bank” means a commercial bank with a consolidated combined capital surplus of at least $5,000,000,000 that is (i) a U.S. depository institution the deposits of which are insured by the Federal Deposit Insurance Corporation; (ii) a corporation organized under section 25A of the U.S. Federal Reserve Act of 1913; (iii) a branch, agency or commercial lending company of a foreign bank operating pursuant to approval by and under the supervision of the Board of Governors under 12 CFR part 211; (iv) a non-U.S. branch of a foreign bank managed and controlled by a U.S. branch referred to in clause (iii); or (v) any other U.S. or non-U.S. depository institution or any branch, agency or similar office thereof supervised by a bank regulatory authority in any jurisdiction.
“Regulation S” means Regulation S under the Securities Act.
“Regulation S-X” means Regulation S-X under the Securities Act.
“Responsible Officer” means, when used with respect to the Trustee or Notes Collateral Agent, as applicable, any vice president, assistant vice president, any trust officer or any other officer of the Trustee or Notes Collateral Agent, as applicable, who shall have direct responsibility for the administration of this Indenture, and also means any other officer of the Trustee or Notes Collateral Agent, as applicable, to whom any corporate trust matter relating to this Indenture is referred because of such person’s knowledge of and familiarity with the particular subject.
“Restricted Investment” means any Investment other than a Permitted Investment.
“Restricted Notes” means Initial Notes and Additional Notes bearing one of the restrictive legends described in Section 2.1(d).
“Restricted Notes Legend” means the legend set forth in Section 2.1(d).
“Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted Subsidiary.
“Rule 144A” means Rule 144A under the Securities Act.
“S&P” means Standard & Poor’s Investors Ratings Services or any of its successors or assigns that is a Nationally Recognized Statistical Rating Organization.
“Sale and Leaseback Transaction” means any arrangement providing for the leasing by the Company or any of the Restricted Subsidiaries of any real or tangible personal property, which property has been or is to be sold or transferred by the Company or such Restricted Subsidiary to a third Person in contemplation of such leasing.
“Screened Affiliate” means any Affiliate of a Holder (i) that makes investment decisions independently from such Holder and any other Affiliate of such Holder that is not a Screened Affiliate, (ii) that has in place customary information screens between it and such Holder and any other Affiliate of such Holder that is not a Screened Affiliate and such screens prohibit the sharing of information with respect to the Company or its Subsidiaries, (iii) whose investment policies are not directed by such Holder or any other Affiliate of such Holder that is acting in concert with such Holder in connection with its investment in the Notes, and (iv) whose investment decisions are not influenced by the investment decisions of such Holder or any other Affiliate of such Holder that is acting in concert with such Holders in connection with its investment in the Notes.
“SEC” means the Securities and Exchange Commission or any successor thereto.
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“Secured Indebtedness” means any Indebtedness secured by a Lien other than Indebtedness with respect to Cash Management Obligations.
“Secured Junior Indebtedness” means any Indebtedness secured by a Lien on the Collateral on a junior priority basis (without regard to control of remedies) with the Lien on the Collateral securing the Notes Obligations.
“Secured Pari Passu Indebtedness” means any Indebtedness secured by a Lien on the Collateral on an equivalent priority basis (without regard to control of remedies) with the Lien on the Collateral securing the Notes Obligations.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder, as amended.
“Securitization Asset” means (a) any accounts receivable, mortgage receivables, loan receivables, royalty, franchise fee, license fee, patent or other revenue streams and other rights to payment or related assets and the proceeds thereof and (b) all collateral securing such receivable or asset, all contracts and contract rights, guarantees or other obligations in respect of such receivable or asset, lockbox accounts and records with respect to such account or asset and any other assets customarily transferred (or in respect of which security interests are customarily granted) together with accounts or assets in connection with a securitization, factoring or receivable sale transaction.
“Securitization Facility” means any of one or more securitization, financing, factoring or sales transactions, as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, pursuant to which the Company or any of the Restricted Subsidiaries sells, transfers, pledges or otherwise conveys any Securitization Assets (whether now existing or arising in the future) to a Securitization Subsidiary or any other Person.
“Securitization Fees” means distributions or payments made directly or by means of discounts with respect to any Securitization Asset or Receivables Asset or participation interest therein issued or sold in connection with, and other fees, expenses and charges (including commissions, yield, interest expense and fees and expenses of legal counsel) paid in connection with, any Qualified Securitization Financing or Receivables Facility.
“Securitization Repurchase Obligation” means any obligation of a seller of Securitization Assets or Receivables Assets in a Qualified Securitization Financing or a Receivables Facility to repurchase or otherwise make payments with respect to Securitization Assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
“Securitization Subsidiary” means any Subsidiary of the Company in each case formed for the purpose of and that solely engages in one or more Qualified Securitization Financings or Receivables Facilities and other activities reasonably related thereto or another Person formed for this purpose.
“Senior Notes Indenture” means the Indenture dated as of February 19, 2019, among Wilmington Trust, National Association, as trustee, the Company and each of the guarantors party thereto, together with all instruments and other agreements in connection therewith, as amended, supplemented or otherwise modified from time to time in accordance with the terms thereof, but only to the extent permitted under the terms of the Loan Documents (as defined in the Credit Agreement).
“Settlement” means the transfer of cash or other property with respect to any credit or debit card charge, check or other instrument, electronic funds transfer, or other type of paper-based or electronic payment, transfer, or charge transaction for which a Person acts as a processor, remitter, funds recipient or funds transmitter in the ordinary course of its business.
“Settlement Asset” means any cash, receivable or other property, including a Settlement Receivable, due or conveyed to a Person in consideration for a Settlement made or arranged, or to be made or arranged, by such Person or an Affiliate of such Person.
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“Settlement Indebtedness” means any payment or reimbursement obligation in respect of a Settlement Payment.
“Settlement Lien” means any Lien relating to any Settlement or Settlement Indebtedness (and may include, for the avoidance of doubt, the grant of a Lien in or other assignment of a Settlement Asset in consideration of a Settlement Payment, Liens securing intraday and overnight overdraft and automated clearing house exposure, and similar Liens).
“Settlement Payment” means the transfer, or contractual undertaking (including by automated clearing house transaction) to effect a transfer, of cash or other property to effect a Settlement.
“Settlement Receivable” means any general intangible, payment intangible, or instrument representing or reflecting an obligation to make payments to or for the benefit of a Person in consideration for a Settlement made or arranged, or to be made or arranged, by such Person.
“Short Derivative Instrument” means a Derivative Instrument (i) the value of which generally decreases, and/or the payment or delivery obligations under which generally increase, with positive changes to the Performance References and/or (ii) the value of which generally increases, and/or the payment or delivery obligations under which generally decrease, with negative changes to the Performance References.
“Shutterstock” means Shutterstock, Inc., a Delaware corporation.
“Significant Subsidiary” means any Restricted Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02(w)(2) of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the Issue Date.
“Similar Business” means (a) any businesses, services or activities engaged in by the Company or any of its Subsidiaries or any Associates on the Issue Date and (b) any businesses, services and activities engaged in by the Company or any of its Subsidiaries or any Associates that are related, complementary, incidental, ancillary or similar to any of the foregoing or are extensions or developments of any thereof.
“SPAC IPO” means, whether before or after the Issue Date, the acquisition, purchase, merger, amalgamation or other combination of the Company or any Parent Entity, by, or with, a publicly traded special purpose acquisition company or targeted acquisition company or any entity similar to the foregoing (a “SPAC IPO Entity”) that results in any common equity interests of the Company, any Parent Entity, or any direct or indirect parent entity of such SPAC IPO Entity (or its successor by merger, amalgamation or other combination) being publicly traded on any United States national securities exchange or over-the-counter market, or any analogous exchange or market in Canada, the United Kingdom or the European Union.
“Specified Litigation” means Alta Partners, LLC v. Getty Images Holdings, Inc., Case No. 1:22-cv-08916 (filed October 19, 2022); CRCM Institutional Master Fund (BVI) LTD et al. v. Getty Images Holdings, Inc., Case No. 1:23-cv-01074 (filed February 8, 2023); Daniel Berner v. Getty Images Holdings, Inc., Case No. 1:24-cv-04483-JSR (filed June 11, 2024); and James Lapp v. Getty ImagesHoldings, Inc., Case No. 1: 24-cv-05129-JSR (filed July 5, 2024); CSS, LLC v. Getty Images Holdings, Inc., Index No. 653527/2024 (filed July 12, 2024); Walleye Manager Opportunities LLC et. al. v. Getty Images Holdings, Inc., Index No. 653528/2024 (filed July 12, 2024); Funicular Funds LP v. Getty Images Holdings, Inc., Index No. 653410/2024 (filed July 5, 2024); MPF BroadwayConvexity Fund I, LP et. al. v. Getty Images Holdings, Inc., Index No. 653411/2024 (filed July 5, 2024); LMR Multi-Strategy MasterFund Limited et al. v. Getty Images Holdings, Inc., Index No. 654963/2024 (filed September 20, 2024); Jordan Flannery v. GettyImages Holdings, Inc., Index No. 654961/2024 (filed September 20, 2024); and Bi-Directional Disequilibrium Fund, L.P. et al. v.Getty Images Holdings, Inc., Index No. 654960/2024 (filed September 20, 2024) (together the “Claims”), including any appeal, counterclaim, settlement or subsequent Legal Proceeding therefrom, and any losses, costs, expenses and settlements associated with any other Legal Proceeding of any nature filed prior to or after the Issue Date; provided that the substance of such Legal Proceeding arises from the same or a related set of facts to the Claims and is of a similar nature or concerning a similar cause of action as the Claims.
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“Standard Securitization Undertakings” means representations, warranties, covenants, guarantees and indemnities entered into by the Company or any Subsidiary of the Company which the Company has determined in good faith to be customary in a Securitization Facility or Receivables Facility, including those relating to the servicing of the assets of a Securitization Subsidiary, it being understood that any Securitization Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking or, in the case of a Receivables Facility, a non-credit related recourse accounts receivable factoring arrangement.
“Stated Maturity” means, with respect to any security, the date specified in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision, but shall not include any Contingent Obligations to repay, redeem or repurchase any such principal prior to the date originally scheduled for the payment thereof.
“Subordinated Indebtedness” means, with respect to any person, any Indebtedness (whether outstanding on the Issue Date or thereafter incurred) which is expressly subordinated in right of payment or lien priority to the Notes (other than intercompany Indebtedness).
“Subsidiary” means, with respect to any Person:
(1) any corporation, association, or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof; or
(2) any partnership, joint venture, limited liability company or similar entity of which:
(a) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership interests or otherwise; and
(b) such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity; or
(3) at the election of the Company, any partnership, joint venture, limited liability company or similar entity of which such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
“Subsidiary Guarantor” means any Restricted Subsidiary that Guarantees the Notes, until such Note Guarantee is released in accordance with the terms of this Indenture.
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement, including any obligations or liabilities under any such master agreement.
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“Swap Obligations” means, with respect to any Person, the obligations of such Person under Swap Contracts.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts.
“Taxes” means all present and future taxes, levies, imposts, deductions, charges, duties, assessments, fees and withholdings (including backup withholdings) and any other charges in the nature of a tax (including interest, penalties, additions to tax and other liabilities with respect thereto) that are imposed by any governmental authority or other taxing authority.
“Total Assets” means, as of any date, the total consolidated assets of the Company and its Restricted Subsidiaries on a consolidated basis, as shown on the most recent consolidated balance sheet of the Company and the Restricted Subsidiaries, determined on a pro forma basis in a manner consistent with the pro forma basis contained in the definition of “Consolidated First Lien Secured Leverage Ratio.”
“Total Revenues” means, as of any date, the total consolidated revenues of the Company and the Restricted Subsidiaries on a consolidated basis, as shown on the most recent consolidated balance sheet of the Company and the Restricted Subsidiaries, determined on a pro forma basis in a manner consistent with the pro forma basis contained in the definition of “Consolidated First Lien Secured Leverage Ratio.”
“Transactions” means any or all of the following: (i) the entry into the Credit Agreement and the incurrence of Indebtedness thereunder, (ii) the entry into the Senior Notes Indenture and the issuance of the senior unsecured notes of the Company thereunder, (iii) the Preferred Equity Offering and the entry into the definitive documentation with respect thereto, (iv) the Common Equity Offering and the entry into the definitive documentation with respect thereto, (v) the Permitted Equity Transactions and (vi) all other transactions relating to any of the foregoing (including payment of fees and expenses related to any of the foregoing).
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code (or equivalent statute) as in effect from time to time in the State of New York; provided, however, that at any time, if by reason of mandatory provisions of law, any or all of the perfection or priority of a collateral agent’s security interest in any item or portion of the collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect, at such time, in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions relating to such provisions.
“Unrestricted Subsidiary” means:
| (1) | any<br> Subsidiary of the Company that at the time of determination is an Unrestricted Subsidiary<br> (as designated by the Company in the manner provided below); and |
|---|
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| (2) | any<br> Subsidiary of an Unrestricted Subsidiary. |
|---|
The Company may designate any Subsidiary of the Company (including any newly acquired or newly formed Subsidiary or a Person becoming a Subsidiary through merger, consolidation or other business combination transaction, or Investment therein) to be an Unrestricted Subsidiary only if:
(i) at the time of such designation, such Subsidiary or any of its Subsidiaries does not own any Capital Stock of the Company or any other Subsidiary of the Company which is not a Subsidiary of the Subsidiary to be so designated or otherwise an Unrestricted Subsidiary; and
(ii) such designation and the Investment, if any, of the Company in such Subsidiary complies with Section 3.3.
“U.S. Dollars” or “$” means the lawful currency of the United States of America.
“U.S. Government Obligations” means securities that are (1) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged or (2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally Guaranteed as a full faith and credit obligation of the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government Obligations or a specific payment of principal of or interest on any such U.S. Government Obligations held by such custodian for the account of the holder of such depositary receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligations or the specific payment of principal of or interest on the U.S. Government Obligations evidenced by such depositary receipt.
“Voting Stock” of a Person means all classes of Capital Stock of such Person then outstanding and normally entitled to vote in the election of directors. When referring to a CFC or FSHCO, the term Voting Stock shall be interpreted in a manner consistent with Treasury Regulation 1.956-2(c)(2).
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the quotient (in number of years) obtained by dividing:
| (1) | the<br> sum of the products obtained by multiplying (i) the number of years (calculated to the nearest<br> one-twelfth) from the date of determination to the date of each successive scheduled principal<br> payment of such Indebtedness or redemption or similar payment with respect to such Disqualified<br> Stock or Preferred Stock, by (ii) the amount of such payment, by |
|---|---|
| (2) | the<br> sum of all such payments; provided that, for purposes of determining the Weighted<br> Average Life to Maturity of any Indebtedness, the effects of any prepayments or amortization<br> made on such Indebtedness prior to the date of such determination will be disregarded. |
| --- | --- |
“Wholly Owned Domestic Subsidiary” means a Domestic Subsidiary of the Company, all of the Capital Stock of which is owned by the Company or a Guarantor.
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Section 1.2. Other Definitions.
| Term | Defined in Section |
|---|---|
| “Acceptable Commitment” | Section 3.5(a)(3)(ii) |
| “Accounting Change” | Section 1.1 |
| “Action” | Section 12.9(w) |
| “Additional Notes” | Recitals |
| “Additional Restricted<br> Notes” | Section 2.1(b) |
| “Advance Offer” | Section 3.5(b) |
| “Advance Portion” | Section 3.5(b) |
| “Affiliate Transaction” | Section 3.8(a) |
| “Agent Members” | Section 2.1(h)(2) |
| “Applicable Premium<br> Deficit” | Section 8.4(1) |
| “Applicable Proceeds” | Section 3.5(a)(3) |
| “Asset Disposition<br> Offer” | Section 3.5(b) |
| “Asset Sale Payment<br> Date” | Section 3.5(g)(2) |
| “Authenticating<br> Agent” | Section 2.2 |
| “Automatic Exchange” | Section 2.6(e) |
| “Automatic Exchange<br> Date” | Section 2.6(e) |
| “Change of Control<br> Offer” | Section 3.9(a) |
| “Change of Control<br> Payment” | Section 3.9(a) |
| “Change of Control<br> Payment Date” | Section 3.9(a)(2) |
| “Clearstream” | Section 2.1(b) |
| “Collateral Document<br> Order” | Section 12.9(s) |
| “Covenant Defeasance” | Section 8.3 |
| “Declined Excess<br> Proceeds” | Section 3.5(b) |
| “Defaulted Interest” | Section 2.15 |
| “Directing Holder” | Section 6.1(b) |
| “Election Date” | Section 3.3 |
| “Escrow Account” | Section 13.1(a) |
| “Escrow Agent” | Section 13.1(a) |
| “Escrow Agreement” | Section 13.1(a) |
| “Escrow Outside<br> Date” | Section 13.3 |
| “Escrow Property” | Section 13.1(b) |
| “Escrow Release” | Section 13.2(a) |
| “Escrow Release<br> Date” | Section 13.2(a) |
| “Escrow Release<br> Officer’s Certificate” | Section 13.2(b) |
| “Euroclear” | Section 2.1(b) |
| “Event of Default” | Section 6.1(a) |
| “Excess Proceeds” | Section 3.5(b) |
| “Foreign Disposition” | Section 3.5(e) |
| “Global Notes” | Section 2.1(b) |
| “Guaranteed Obligations” | Section 10.1 |
| “Increased Amount” | Section 3.6(d) |
| “Initial Agreement” | Section 3.4(b)(16) |
| “Initial Default” | Section 6.2(c) |
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| Term | Defined in Section |
|---|---|
| “Institutional Accredited<br> Investor Global Note” | Section 2.1(b) |
| “Institutional Accredited Investor Notes” | Section 2.1(b) |
| “IRS” | Section 5.3(e) |
| “Issuer Order” | Section 2.2 |
| “LCT Election” | Section 3.2(c)(10) |
| “LCT Public Offer” | Section 3.2(c)(10) |
| “LCT Test Date” | Section 3.2(c)(10) |
| “Legal Defeasance” | Section 8.2 |
| “Legal Holiday” | Section 14.7 |
| “Mandatory Redemption Event” | Section 5.8(a) |
| “New LMT Debt” | Section 1.1 |
| “Note Guarantees” | Section 10.1 |
| “Noteholder Direction” | Section 6.1(b) |
| “Notes” | Recitals |
| “Notes Register” | Section 2.3 |
| “payment default” | Section 6.1(a)(4)(A) |
| “Performance References” | Section 1.1 |
| “Permanent Regulation S Global Note” | Section 2.1(b) |
| “Permitted Merger Closing Date Uses” | Section 3.2(b)(21) |
| “Permitted Payments” | Section 3.3(b) |
| “Position Representation” | Section 6.1(b) |
| “primary obligations” | Section 1.1 |
| “primary obligor” | Section 1.1 |
| “Proceeds Application Period” | Section 3.5(a)(3) |
| “protected purchaser” | Section 2.11 |
| “Ratio Calculation Date” | Section 1.1 |
| “Redemption Date” | Section 5.7(a) |
| “Redemption Price Premium” | Section 1.1 |
| “Refunding Capital Stock” | Section 3.3(b)(2) |
| “Registrar” | Section 2.3 |
| “Regulation S Global Note” | Section 2.1(b) |
| “Regulation S Notes” | Section 2.1(b) |
| “Related Person” | Section 12.9(b) |
| “Reserved Indebtedness Amount” | Section 3.2(c)(9) |
| “Restricted Global Note” | Section 2.6(e) |
| “Restricted Payment” | Section 3.3(a)(4) |
| “Restricted Period” | Section 2.1(b) |
| “Reversion Date” | Section 3.18(b) |
| “Rule 144A Global Note” | Section 2.1(b) |
| “Rule 144A Notes” | Section 2.1(b) |
| “SPAC IPO Entity” | Section 1.1 |
| “Special Interest Payment Date” | Section 2.15(a) |
| “Special Mandatory Redemption” | Section 5.8(a) |
| “Special Mandatory Redemption Date” | Section 5.8(b) |
| “Special Mandatory Redemption Price” | Section 5.8(a) |
| “Special Record Date” | Section 2.15(a) |
| “Initial Lien” | Section 3.6(a) |
| “Successor Company” | Section 4.1(a)(1) |
| “Suspended Covenants” | Section 3.18(a) |
| “Suspension Period” | Section 3.18(b) |
| “Temporary Regulation S Global Note” | Section 2.1(b) |
| “Treasury Capital Stock” | Section 3.3(b)(2) |
| “Trustee” | Section 8.5 |
| “Unrestricted Global Note” | Section 2.6(e) |
| “USA PATRIOT Act” | Section 14.11 |
| “Verification Covenant” | Section 6.1(b) |
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Section 1.3. Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(3) “or” is not exclusive;
(4) “including” means including without limitation;
(5) words in the singular include the plural and words in the plural include the singular;
(6) “will” shall be interpreted to express a command;
(7) any calculation, test or measure that is determined with reference to the Company’s financial statements (including, without limitation, LTM EBITDA, Consolidated EBITDA, Consolidated Interest Expense, Consolidated Net Income, Consolidated First Lien Secured Leverage Ratio, Consolidated Total Indebtedness, Consolidated Total Leverage Ratio and Section 3.3(a)(ii)(B)) may, at the Company’s option, be determined with reference to the financial statements of a direct or indirect parent of the Company instead, so long as such calculation, test or measure would not differ by more than an immaterial amount when using the financial statements of such direct or indirect parent of the Company as compared to if such calculation, test or measure were made using the Company’s financial statements (as determined in good faith by the Company).
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(8) Any ratios, tests or baskets required to be satisfied in order for a specific action to be permitted under this Indenture shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up to the nearest number (with a rounding up if there is no nearest number).
(9) If the Company or any Restricted Subsidiary takes an action that at the time of the taking would in the good faith determination of the Company be permitted under the applicable provisions of this Indenture based on the financial statements available at such time, such action shall be deemed to have been made in compliance with this Indenture notwithstanding any subsequent adjustments, modifications or restatements made in good faith to such financial statements affecting including, without limitation, LTM EBITDA, Consolidated EBITDA, Consolidated Interest Expense, Consolidated Net Income or other applicable financial metric.
(10) For the avoidance of doubt, the consummation of the Contribution, the Merger and the transactions expressly contemplated by the Merger Agreement shall not be prohibited by the covenants below; provided, for the avoidance of doubt, that (i) the foregoing shall not be deemed to create the capacity to incur Indebtedness not otherwise permitted to be incurred under this Indenture and (ii) the Contribution shall not be deemed to increase (x) the amount of Restricted Payments that may be made pursuant to Section 3.3(a)(ii)(B) or (y) capacity to incur Indebtedness pursuant to Section 3.2(b)(10).
Section 1.4. Certain Compliance Calculations. Notwithstanding anything to the contrary herein, in the event an item of Indebtedness (or any portion thereof) is incurred or issued, any Lien is incurred or other transaction is undertaken in reliance on any ratio based exceptions, thresholds and baskets, such ratio(s) shall be calculated with respect to such incurrence, issuance or other transaction without giving effect to amounts being utilized under any other exceptions, thresholds or baskets (other than ratio based baskets) on the same date. Each item of Indebtedness that is incurred or issued, each Lien incurred and each other transaction undertaken will be deemed to have been incurred, issued or taken first, to the extent available, pursuant to the relevant ratio-based test.
(a) Notwithstanding anything to the contrary herein, in the event an item of Indebtedness (or any portion thereof) is incurred or issued, any Lien is incurred or other transaction is undertaken in reliance on any ratio based exceptions, thresholds and baskets, such ratio(s) shall be calculated without regard to the incurrence of any Indebtedness under any revolving facility or letter of credit facility immediately prior to or in connection therewith.
(b) Any calculation or measure that is determined with reference to the Company’s financial statements (including Consolidated EBITDA, Consolidated Interest Expense, Consolidated Net Income, Consolidated First Lien Secured Leverage Ratio and Consolidated Total Leverage Ratio) may be determined with reference to the financial statements of a Parent Entity instead, so long as such Parent Entity does not hold any material assets other than, directly or indirectly, the Capital Stock of the Company.
(c) For purposes of making any computation referred to above, any Investments, acquisitions, dispositions, mergers, amalgamations, consolidations, operational changes, business expansions and disposed or discontinued operations, designations of any Restricted Subsidiary as an Unrestricted Subsidiary and Designations of any Unrestricted Subsidiary as a Restricted Subsidiary, in each case that have been made by the Company or any of its Restricted Subsidiaries, during the reference period or subsequent to the reference period and on or prior to or simultaneously with the applicable Ratio Calculation Date shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, amalgamations, consolidations, operational changes, business expansions, disposed or discontinued operations and designations (and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day of the reference period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged or amalgamated with or into the Company or any of its Restricted Subsidiaries since the beginning of such period shall have made any Investment, acquisition, disposition, merger, amalgamation, consolidation, operational change, business expansion or disposed or discontinued operation that would have required adjustment pursuant to this definition, then the applicable ratio shall be calculated giving pro forma effect thereto for such period as if such Investment, acquisition, disposition, merger, amalgamation, consolidation or disposed operation had occurred at the beginning of the reference period.
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(d) For purposes of this Section 1.4, whenever pro forma effect is to be given to a transaction (including the Merger), the pro forma calculations shall be made in good faith by a responsible financial or chief accounting officer of the Company (and may include, for the avoidance of doubt, cost savings, operating expenses reductions and synergies resulting from such transactions which is being given pro forma effect). If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Ratio Calculation Date had been the applicable rate for the entire reference period (taking into account any Hedging Obligations applicable to such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Company to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed with a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the reference period except as set forth in the definition of “Consolidated First Lien Secured Leverage Ratio”. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as the Company may designate.
Article II THE NOTES
Section 2.1. Form, Dating and Terms.
(a) The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is unlimited. The Initial Notes issued on the date hereof will be in an aggregate principal amount of $628,400,000. In addition, the Company may issue, from time to time in accordance with the provisions of this Indenture, Additional Notes (as provided herein). Furthermore, Notes may be authenticated and delivered upon registration of transfer, exchange or in lieu of, other Notes pursuant to Section 2.2, Section 2.6, Section 2.11, Section 2.13, Section 5.6 or Section 9.5, in connection with an Asset Disposition Offer pursuant to Section 3.5 or in connection with a Change of Control Offer pursuant to Section 3.9.
Notwithstanding anything to the contrary contained herein, the Company may not issue any Additional Notes, unless such issuance is in compliance with Section 3.2 and Section 3.6.
With respect to any Additional Notes, the Company shall set forth in an Officer’s Certificate or one or more indentures supplemental hereto, the following information:
(A) the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture;
(B) the issue price and the issue date of such Additional Notes, including the date from which interest shall accrue and the first interest payment date; and
(C) whether such Additional Notes shall be Restricted Notes.
In authenticating and delivering Additional Notes, the Trustee shall be entitled to receive and shall be fully protected in relying upon, in addition to the Opinion of Counsel and Officer’s Certificate required by Section 14.3, an Opinion of Counsel as to the due authorization, execution, delivery, validity and enforceability of such Additional Notes.
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The Initial Notes and the Additional Notes shall be considered collectively as a single class for all purposes of this Indenture. Holders of the Initial Notes and the Additional Notes will vote and consent together on all matters to which such Holders are entitled to vote or consent as one class, and none of the Holders of the Initial Notes or the Additional Notes shall have the right to vote or consent as a separate class on any matter to which such Holders are entitled to vote or consent. If any Additional Notes are not fungible with any other Notes for United States federal income tax purposes or if the Company otherwise determines that any Additional Notes should be differentiated from any other Notes, such Additional Notes will have a separate CUSIP number; provided that, for the avoidance of doubt, such Additional Notes will still constitute a single series with all other Notes issued under this Indenture for all purposes of this Indenture.
If any Additional Notes are issued, the Company shall prepare and the Trustee or Notes Collateral Agent, as applicable, shall execute a joinder to any of the Intercreditor Agreements if required by the terms of such Intercreditor Agreement.
(b) The Initial Notes and any Additional Notes (if issued as Restricted Notes) (the “Additional Restricted Notes”) will be sold initially only to (A) QIBs, (B) IAIs and (C) non-U.S. Persons eligible to participate in an offering pursuant to Regulation S. Such Initial Notes and Additional Restricted Notes may thereafter be transferred to, among others, persons reasonably believed to be QIBs, IAIs and purchasers in reliance on Regulation S and IAIs in accordance with Rule 501 under the Securities Act, in each case, in accordance with the procedure described herein. Additional Notes offered after the date hereof may be offered and sold by the Company from time to time pursuant to one or more purchase agreements in accordance with applicable law.
Initial Notes and Additional Restricted Notes offered and sold to persons reasonably believed to be QIBs in the United States of America (the “Rule 144A Notes”) shall be issued in the form of a permanent global Note substantially in the form of Exhibit A, which is hereby incorporated by reference and made a part of this Indenture, including appropriate legends as set forth in Section 2.1(d) and (e) (the “Rule 144A Global Note”), deposited with the Trustee, as custodian for DTC, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Rule 144A Global Note may be represented by more than one certificate, if so required by DTC’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nominee, as hereinafter provided.
Initial Notes and any Additional Restricted Notes offered and sold outside the United States of America (the “Regulation S Notes”) shall initially be issued in the form of a temporary global Note (the “Temporary Regulation S Global Note”). Beneficial interests in the Temporary Regulation S Global Note will be exchanged for beneficial interests in a corresponding permanent global Note substantially in the form of Exhibit A including appropriate legends as set forth in Section 2.1(d) and (e) (the “Permanent Regulation S Global Note” and, together with the Temporary Regulation S Global Note, each a “Regulation S Global Note”) within a reasonable period after the expiration of the Restricted Period. Each Regulation S Global Note will be deposited upon issuance with, or on behalf of, the Trustee as custodian for DTC in the manner described in this Article II for credit to the respective accounts of the purchasers (or to such other accounts as they may direct), including, but not limited to, accounts at Euroclear Bank S.A./N.V. (“Euroclear”) or Clearstream Banking, société anonyme (“Clearstream”). Prior to the 40th day after the later of the commencement of the offering of the Initial Notes and the Issue Date (such period through and including such 40th day, the “Restricted Period”), interests in the Temporary Regulation S Global Note may only be transferred to non-U.S. persons pursuant to Regulation S, unless exchanged for interests in a Global Note in accordance with the transfer and certification requirements described herein. Investors may hold their interests in the Regulation S Global Note through organizations other than Euroclear or Clearstream that are participants in DTC’s system or directly through Euroclear or Clearstream, if they are participants in such systems, or indirectly through organizations which are participants in such systems. If such interests are held through Euroclear or Clearstream, Euroclear and Clearstream will hold such interests in the applicable Regulation S Global Note on behalf of their participants through customers’ securities accounts in their respective names on the books of their respective depositaries. Such depositaries, in turn, will hold such interests in the applicable Regulation S Global Note in customers’ securities accounts in the depositaries’ names on the books of DTC.
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Investors may hold their interests in the Regulation S Global Note through organizations other than Euroclear or Clearstream that are participants in DTC’s system or directly through Euroclear or Clearstream, if they are participants in such systems, or indirectly through organizations which are participants in such systems. If such interests are held through Euroclear or Clearstream, Euroclear and Clearstream will hold such interests in the applicable Regulation S Global Note on behalf of their participants through customers’ securities accounts in their respective names on the books of their respective depositaries. Such depositaries, in turn, will hold such interests in the applicable Regulation S Global Note in customers’ securities accounts in the depositaries’ names on the books of DTC.
The Regulation S Global Note may be represented by more than one certificate, if so required by DTC’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Regulation S Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nominee, as hereinafter provided.
Initial Notes and Additional Restricted Notes sold to IAIs (the “Institutional Accredited Investor Notes”) shall be issued in the form of a permanent global Note substantially in the form of Exhibit A including appropriate legends as set forth in Section 2.1(d) and (e) (the “Institutional Accredited Investor Global Note”) deposited with the Trustee, as custodian for DTC, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Institutional Accredited Investor Global Note may be represented by more than one certificate, if so required by DTC’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Institutional Accredited Investor Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nominee, as hereinafter provided.
The Rule 144A Global Note, the Regulation S Global Note and the Institutional Accredited Investor Global Note are sometimes collectively herein referred to as the “Global Notes.”
The principal of (and premium, if any) and interest on the Notes shall be payable at the office or agency of Paying Agent designated by the Company maintained for such purpose (which shall initially be the office of the Trustee maintained for such purpose), or at such other office or agency of the Company as may be maintained for such purpose pursuant to Section 2.3; provided, however, that, at the option of the Paying Agent, each installment of interest may be paid by (i) check mailed to addresses of the Persons entitled thereto as such addresses shall appear on the Notes Register or (ii) wire transfer to an account located in the United States maintained by the payee, subject to the last sentence of this paragraph. Payments in respect of Notes represented by a Global Note (including principal, premium, if any, and interest) will be made by wire transfer of immediately available funds to the accounts specified by DTC. Payments in respect of Notes represented by Definitive Notes (including principal, premium, if any, and interest) held by a Holder of at least $1,000,000 aggregate principal amount of Notes represented by Definitive Notes will be made by wire transfer to a Dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 15 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage, in addition to those set forth on Exhibit A and in Section 2.1(d) and (e). The Company shall approve any notation, endorsement or legend on the Notes. Each Note shall be dated the date of its authentication. The terms of the Notes set forth in Exhibit A are part of the terms of this Indenture and, to the extent applicable, the Company, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to be bound by such terms.
(c) Denominations. The Notes shall be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
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(d) Restrictive Legend. Unless and until (i) an Initial Note or an Additional Note issued as a Restricted Note is sold under an effective registration statement or (ii) the Company and the Trustee receive an Opinion of Counsel reasonably satisfactory to the Company to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act, the Rule 144A Global Note, the Regulation S Global Note and the Institutional Accredited Investor Global Note shall bear the following legend on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A)(1), (A)(2), (A)(3), (A)(7) OR (A)(8) OF REGULATION D UNDER THE SECURITIES ACT) OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN “OFFSHORE TRANSACTION” PURSUANT TO RULE 903 OR RULE 904 OF REGULATION S, (2) AGREES THAT IT WILL NOT, PRIOR TO THE DATE THAT IS [IN THE CASE OF RULE 144A GLOBAL NOTES AND INSTITUTIONAL ACCREDITED INVESTOR GLOBAL NOTES: ONE YEAR][IN THE CASE OF REGULATION S GLOBAL NOTES: 40 DAYS] AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH GETTY IMAGES, INC. (THE “ISSUER”) OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY OR ANY PREDECESSOR OF THIS SECURITY, OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT THAT 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 UNDER THE SECURITIES ACT 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) (I) QIBS, (II) PURSUANT TO OFFERS AND SALES TO INSTITUTIONAL “ACCREDITED INVESTORS” PURSUANT TO RULE 501(A)(1), (A)(2), (A)(3), (A)(7) OR (A)(8) OF REGULATION D UNDER THE SECURITIES ACT OR (III) PURSUANT TO OFFERS AND SALES TO A NON-U.S. PERSON IN OFFSHORE TRANSACTIONS MEETING THE REQUIREMENTS OF REGULATION S UNDER THE SECURITIES ACT (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT 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; PROVIDED THAT THE ISSUER AND THE NOTES TRUSTEE SHALL HAVE THE RIGHT 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 CERTIFICATION OF TRANSFER IN THE FORM APPEARING IN THE INDENTURE IS COMPLETED AND DELIVERED BY THE TRANSFER TO THE NOTES TRUSTEE.
(e) [Reserved].
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(f) Global Note Legend. Each Global Note, whether or not an Initial Note, shall bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
(g) Temporary Regulation S Note Legend. Each Temporary Regulation S Global Note shall also bear the following legend on the face thereof:
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
(h) Book-Entry Provisions. (i) This Section 2.1(h) shall apply only to Global Notes deposited with the Trustee, as custodian for DTC.
(1) Each Global Note initially shall (x) be registered in the name of DTC or the nominee of DTC, (y) be delivered to the Notes Custodian for DTC and (z) bear legends as set forth in Section 2.1(f). Transfers of a Global Note (but not a beneficial interest therein) will be limited to transfers thereof in whole, but not in part, to DTC, its successors or its respective nominees, except as set forth in Section 2.1(h)(4) and Section 2.1(i). If a beneficial interest in a Global Note is transferred or exchanged for a beneficial interest in another Global Note, the Notes Custodian will (x) record a decrease in the principal amount of the Global Note being transferred or exchanged equal to the principal amount of such transfer or exchange and (y) record a like increase in the principal amount of the other Global Note. Any beneficial interest in one Global Note that is transferred to a Person who takes delivery in the form of an interest in another Global Note, or exchanged for an interest in another Global Note, will, upon transfer or exchange, cease to be an interest in such Global Note and become an interest in the other Global Note and, accordingly, will thereafter be subject to all transfer and exchange restrictions, if any, and other procedures applicable to beneficial interests in such other Global Note for as long as it remains such an interest.
(2) Members of, or participants in, DTC (“Agent Members”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by DTC or by the Notes Custodian as the custodian of DTC or under such Global Note, and DTC may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by DTC or impair, as between DTC and its Agent Members, the operation of customary practices of DTC governing the exercise of the rights of a holder of a beneficial interest in any Global Note.
(3) In connection with any transfer of a portion of the beneficial interest in a Global Note pursuant to Section 2.1(i) to beneficial owners who are required to hold Definitive Notes, the Notes Custodian shall reflect on its books and records the date and a decrease in the principal amount of such Global Note in an amount equal to the principal amount of the beneficial interest in the Global Note to be transferred, and the Company shall execute, and the Trustee shall authenticate and make available for delivery, one or more Definitive Notes of like tenor and amount.
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(4) In connection with the transfer of an entire Global Note to beneficial owners pursuant to Section 2.1(i), such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and make available for delivery, to each beneficial owner identified by DTC in exchange for its beneficial interest in such Global Note, an equal aggregate principal amount of Definitive Notes of authorized denominations.
(5) The registered Holder of a Global Note may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.
(6) Any Holder of a Global Note shall, by acceptance of such Global Note, agree that transfers of beneficial interests in such Global Note may be effected only through a book-entry system maintained by (i) the Holder of such Global Note (or its agent) or (ii) any holder of a beneficial interest in such Global Note, and that ownership of a beneficial interest in such Global Note shall be required to be reflected in a book entry.
(i) Definitive Notes. Except as provided below in this paragraph (i), owners of beneficial interests in Global Notes will not be entitled to receive Definitive Notes. Definitive Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in a Global Note if (A) DTC notifies the Company that it is unwilling or unable to continue as Depositary for the Global Note and the Company fail to appoint a successor depositary within 90 days of such notice, or (B) there shall have occurred and be continuing an Event of Default with respect to the Notes under this Indenture and DTC shall have requested the issuance of Definitive Notes. In the event of the occurrence of any of the events specified in the second preceding sentence or in clause (A) or (B) of the preceding sentence, the Company shall promptly make available to the Trustee a reasonable supply of Definitive Notes. In addition, any Note transferred to an affiliate (as defined in Rule 405 under the Securities Act) of the Company or evidencing a Note that has been acquired by an affiliate in a transaction or series of transactions not involving any public offering must, until one year after the last date on which the Company or any Affiliate of the Company was an owner of the Note, be in the form of a Definitive Note and bear the legend regarding transfer restrictions in Section 2.1(d). If required to do so pursuant to any applicable law or regulation, beneficial owners may also obtain Definitive Notes in exchange for their beneficial interests in a Global Note upon written request in accordance with DTC’s and the Registrar’s procedures.
(1) Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to Section 2.1(i) shall, except as otherwise provided by Section 2.6(d), bear the applicable legend regarding transfer restrictions applicable to the Global Note set forth in Section 2.1(d).
(2) If a Definitive Note is transferred or exchanged for a beneficial interest in a Global Note, the Trustee will (x) cancel such Definitive Note, (y) record an increase in the principal amount of such Global Note equal to the principal amount of such transfer or exchange and (z) in the event that such transfer or exchange involves less than the entire principal amount of the canceled Definitive Note, the Company shall execute, and the Trustee shall authenticate and make available for delivery, to the transferring Holder a new Definitive Note representing the principal amount not so transferred.
(3) If a Definitive Note is transferred or exchanged for another Definitive Note, (x) the Trustee will cancel the Definitive Note being transferred or exchanged, (y) the Company shall execute, and the Trustee shall authenticate and make available for delivery, one or more new Definitive Notes in authorized denominations having an aggregate principal amount equal to the principal amount of such transfer or exchange to the transferee (in the case of a transfer) or the Holder of the canceled Definitive Note (in the case of an exchange), registered in the name of such transferee or Holder, as applicable, and (z) if such transfer or exchange involves less than the entire principal amount of the canceled Definitive Note, the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder thereof, one or more Definitive Notes in authorized denominations having an aggregate principal amount equal to the untransferred or unexchanged portion of the canceled Definitive Notes, registered in the name of the Holder thereof.
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(4) Notwithstanding anything to the contrary in this Indenture, in no event shall a Definitive Note be delivered upon exchange or transfer of a beneficial interest in the Temporary Regulation S Global Note prior to the end of the Restricted Period.
Section 2.2. Execution and Authentication. One Officer of the Issuer shall sign the Notes by manual, facsimile, pdf or other electronic signature. If the Officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid until an authorized officer of the Trustee manually authenticates the Note. The signature of the Trustee on a Note shall be conclusive evidence that such Note has been duly and validly authenticated and issued under this Indenture. A Note shall be dated the date of its authentication.
At any time and from time to time after the execution and delivery of this Indenture, the Trustee shall authenticate and make available for delivery: (1) Initial Notes for original issue on the Issue Date in an aggregate principal amount of $628,400,000, (2) subject to the terms of this Indenture, Additional Notes for original issue in an unlimited principal amount, in each case upon a written order of the Company signed by one Officer of the Issuer (the “Issuer Order”) and (3) under the circumstances set forth in Section 2.6(e), Initial Notes in the form of an Unrestricted Global Note, in each case upon an Issuer Order. Such Issuer Order shall specify whether the Notes will be in the form of Definitive Notes or Global Notes, the amount of the Notes to be authenticated, the date on which the original issue of Notes is to be authenticated, the Holder and whether the Notes are to be Initial Notes or Additional Notes.
The Trustee may appoint an agent (the “Authenticating Agent”) reasonably acceptable to the Company to authenticate the Notes. Any such appointment shall be evidenced by an instrument signed by a Responsible Officer, a copy of which shall be furnished to the Company. Unless limited by the terms of such appointment, any such Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by the Authenticating Agent. An Authenticating Agent has the same rights as any Registrar, Paying Agent or agent for service of notices and demands.
In case the Company or any Guarantor, pursuant to Article IV or Section 10.2, as applicable, shall be consolidated or merged or amalgamated with or into any other Person or shall convey, transfer, lease or otherwise dispose of its properties and assets substantially as an entirety to any Person, and the successor Person resulting from such consolidation, or surviving such merger or amalgamation, or into which the Company or any Guarantor shall have been merged, or the Person which shall have received a conveyance, transfer, lease or other disposition as aforesaid, shall have executed an indenture supplemental hereto with the Trustee pursuant to Article IV, any of the Notes authenticated or delivered prior to such consolidation, merger, amalgamation, conveyance, transfer, lease or other disposition may (but shall not be required), from time to time, at the request of the successor Person, be exchanged for other Notes executed in the name of the successor Person with such changes in phraseology and form as may be appropriate to reflect such successor Person, but otherwise in substance of like tenor as the Notes surrendered for such exchange and of like principal amount; and the Trustee, upon the Issuer Order of the successor Person, shall authenticate and make available for delivery Notes as specified in such order for the purpose of such exchange. If Notes shall at any time be authenticated and delivered in any new name of a successor Person pursuant to this Section 2.2 in exchange or substitution for or upon registration of transfer of any Notes, such successor Person, at the option of the Holders but without expense to them, shall provide for the exchange of all Notes at the time outstanding for Notes authenticated and delivered in such new name.
Section 2.3. Registrar and Paying Agent. The Company shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (the “Registrar”) and an office or agency where Notes may be presented for payment. The Registrar shall keep a register of the Notes and of their transfer and exchange (the “Notes Register”). The Company may have one or more co-registrars and one or more additional paying agents. The term “Paying Agent” includes any additional paying agent and the term “Registrar” includes any co-registrar.
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The Company shall enter into an appropriate agency agreement with any Registrar or Paying Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee in writing of the name and address of each such agent. If the Company fail to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.6. The Company or any Guarantor may act as Paying Agent, Registrar or transfer agent.
The Company initially appoints DTC to act as Depositary with respect to the Global Notes. The Company initially appoints the Trustee as the Registrar and Paying Agent for the Notes and the Company may remove any Registrar or Paying Agent without prior notice to the Holders, but upon written notice to such Registrar or Paying Agent and to the Trustee; provided, however, that no such removal shall become effective until (i) acceptance of any appointment by a successor as evidenced by an appropriate agreement entered into by the Company and such successor Registrar or Paying Agent, as the case may be, and delivered to the Trustee and the passage of any waiting or notice periods required by DTC procedures or (ii) written notification to the Trustee that the Trustee shall serve as Registrar or Paying Agent until the appointment of a successor in accordance with clause (i) above. The Registrar or Paying Agent may resign at any time upon written notice to the Company and the Trustee.
Section 2.4. Paying Agent to Hold Money in Trust. Prior to 10:00 a.m. New York City time, on each due date of the principal of, premium, if any, or interest on any Note is due and payable, the Company shall deposit with the Paying Agent a sum sufficient in immediately available funds to pay such principal, premium or interest when due. The Company shall require the Paying Agent (other than the Trustee) to agree in writing that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal of, premium, if any, or interest on the Notes (whether such assets have been distributed to it by the Company or other obligors on the Notes), shall notify the Trustee in writing of any default by the Company or any Guarantor in making any such payment and shall during the continuance of any default by the Company (or any other obligor upon the Notes) or any Guarantor in the making of any payment in respect of the Notes, upon the written request of the Trustee, forthwith deliver to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Notes together with a full accounting thereof. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Company at any time may require a Paying Agent (other than the Trustee) to pay all money held by it to the Trustee and to account for any funds or assets disbursed by such Paying Agent. Upon complying with this Section 2.4, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for the money delivered to the Trustee. Upon any bankruptcy, Insolvency or Liquidation Proceeding, reorganization or similar proceeding with respect to the Company, the Trustee shall serve as Paying Agent for the Notes.
Section 2.5. Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar, the Company, on its own behalf and on behalf of each of the Guarantors, shall furnish or cause the Registrar to furnish to the Trustee, in writing at least five 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 Holders and the Company.
Section 2.6. Transfer and Exchange.
(a) A Holder may transfer a Note (or a beneficial interest therein) to another Person or exchange a Note (or a beneficial interest therein) for another Note or Notes of any authorized denomination by presenting to the Trustee a written request therefor stating the name of the proposed transferee or requesting such an exchange, accompanied by any certification, opinion or other document required by this Section 2.6. The Trustee will promptly register any transfer or exchange that meets the requirements of this Section 2.6 by noting the same in the Notes Register maintained by the Trustee for the purpose, and no transfer or exchange will be effective until it is registered in such Notes Register. The transfer or exchange of any Note (or a beneficial interest therein) may only be made in accordance with this Section 2.6 and Section 2.1(i), as applicable, and, in the case of a Global Note (or a beneficial interest therein), the applicable rules and procedures of DTC, Euroclear and Clearstream. The Trustee shall refuse to register any requested transfer or exchange that does not comply with this Section 2.6(a).
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(b) Transfers of Rule 144A Notes and Institutional Accredited Investor Notes. The following provisions shall apply with respect to any proposed registration of transfer of a Rule 144A Note or an Institutional Accredited Investor Note prior to the date that is one year after the later of the date of its original issue and the last date on which the Company or any Affiliate of the Company was the owner of such Notes (or any predecessor thereto):
(1) a registration of transfer of a Rule 144A Note or an Institutional Accredited Investor Note or a beneficial interest therein to a QIB shall be made upon the representation of the transferee in the form as set forth on the reverse of the Note that it is purchasing for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A; provided that no such written representation or other written certification shall be required in connection with the transfer of a beneficial interest in the Rule 144A Global Note to a transferee in the form of a beneficial interest in that Rule 144A Global Note in accordance with this Indenture and the applicable procedures of DTC;
(2) a registration of transfer of an Institutional Accredited Investor Note or a beneficial interest therein to an IAI shall be made upon receipt by the Company and the Registrar or its agent of a certificate substantially in the form set forth in Exhibit E from the proposed transferee and the delivery of an Opinion of Counsel, certification and/or other information satisfactory to the Company; and
(3) a registration of transfer of a Rule 144A Note or a beneficial interest therein to a non-U.S. Person shall be made upon receipt by the Company and the Registrar or its agent of a certificate substantially in the form set forth in Exhibit D from the proposed transferee and the delivery of an Opinion of Counsel, certification and/or other information satisfactory to the Company.
(c) Transfers of Regulation S Notes. The following provisions shall apply with respect to any proposed transfer of a Regulation S Note prior to the expiration of the Restricted Period:
(1) a transfer of a Regulation S Note or a beneficial interest therein to a QIB shall be made upon the representation of the transferee, in the form of assignment on the reverse of the certificate, that it is purchasing the Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A;
(2) a transfer of a Regulation S Note or a beneficial interest therein to an IAI shall be made upon receipt by the Registrar or its agent of a certificate substantially in the form set forth in Exhibit E hereof from the proposed transferee and receipt by the Company and Registrar or its agent of an Opinion of Counsel, certification and/or other information satisfactory to the Company; and
(3) a transfer of a Regulation S Note or a beneficial interest therein to a Non-U.S. Person shall be made upon receipt by the Registrar or its agent of a certificate substantially in the form set forth in Exhibit D hereof from the proposed transferee and receipt by the Company and Registrar or its agent of an Opinion of Counsel, certification and/or other information satisfactory to the Company.
After the expiration of the Restricted Period, interests in the Regulation S Note may be transferred in accordance with applicable law without requiring the certification set forth in Exhibit D or any additional certification.
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(d) Restricted Notes Legend. Upon the transfer, exchange or replacement of Notes not bearing a Restricted Notes Legend, the Registrar shall deliver Notes that do not bear a Restricted Notes Legend. Upon the transfer, exchange or replacement of Notes bearing a Restricted Notes Legend, the Registrar shall deliver only Notes that bear a Restricted Notes Legend unless (1) an Initial Note is being transferred pursuant to an effective registration statement, (2) Initial Notes are being exchanged for Notes that do not bear the Restricted Notes Legend in accordance with Section 2.6(e) or (3) there is delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the Company to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act. Any Additional Notes sold in a registered offering shall not be required to bear the Restricted Notes Legend.
(e) Automatic Exchange from Global Note Bearing Restricted Notes Legend to Global Note Not Bearing Restricted Notes Legend. Upon the Company’s satisfaction that the Restricted Notes Legend shall no longer be required in order to maintain compliance with the Securities Act, beneficial interests in a Global Note bearing the Restricted Notes Legend (a “Restricted Global Note”) may be automatically exchanged into beneficial interests in a Global Note not bearing the Restricted Notes Legend (an “Unrestricted Global Note”) without any action required by or on behalf of the Holder (the “Automatic Exchange”) at any time on or after the date that is the 366th calendar day after (1) with respect to the Notes issued on the Issue Date, the Issue Date or (2) with respect to Additional Notes, if any, the issue date of such Additional Notes, or, in each case, if such day is not a Business Day, on the next succeeding Business Day (the “Automatic Exchange Date”). Upon the Company’s satisfaction that the Restricted Notes Legend shall no longer be required in order to maintain compliance with the Securities Act, the Company shall (i) provide written notice to DTC and the Trustee at least fifteen (15) calendar days prior to the Automatic Exchange Date, instructing DTC to exchange all of the outstanding beneficial interests in a particular Restricted Global Note to the Unrestricted Global Note, which the Company shall have previously otherwise made eligible for exchange with DTC, (ii) provide prior written notice to each Holder at such Holder’s address appearing in the register of Holders at least fifteen (15) calendar days prior to the Automatic Exchange Date, which notice must include (w) the Automatic Exchange Date, (x) the section of this Indenture pursuant to which the Automatic Exchange shall occur, (y) the “CUSIP” number of the Restricted Global Note from which such Holder’s beneficial interests will be transferred and (z) the “CUSIP” number of the Unrestricted Global Note into which such Holder’s beneficial interests will be transferred, and (iii) on or prior to the Automatic Exchange Date, deliver to the Trustee for authentication one or more Unrestricted Global Notes, duly executed by the Company, in an aggregate principal amount equal to the aggregate principal amount of Restricted Global Notes to be exchanged into such Unrestricted Global Notes.
Notwithstanding anything to the contrary in this Section 2.6(e), during the fifteen (15) calendar day period prior to the Automatic Exchange Date, no transfers or exchanges other than pursuant to this Section 2.6(e) shall be permitted without the prior written consent of the Company. As a condition to any Automatic Exchange, the Company shall provide, and the Trustee shall be entitled to conclusively rely upon, an Officer’s Certificate and Opinion of Counsel to the Company to the effect that the Automatic Exchange shall be effected in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Restricted Notes Legend shall no longer be required in order to maintain compliance with the Securities Act and that the aggregate principal amount of the particular Restricted Global Note is to be transferred to the particular Unrestricted Global Note by adjustment made on the records of the Trustee, as custodian for the Depositary to reflect the Automatic Exchange. Upon such exchange of beneficial interests pursuant to this Section 2.6(e), the aggregate principal amount of the Global Notes shall be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, to reflect the relevant increase or decrease in the principal amount of such Global Note resulting from the applicable exchange. The Restricted Global Note from which beneficial interests are transferred pursuant to an Automatic Exchange shall be canceled following the Automatic Exchange.
(f) Retention of Written Communications. The Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 2.1 or this Section 2.6. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable prior written notice to the Registrar.
(g) Obligations with Respect to Transfers and Exchanges of Notes. To permit registrations of transfers and exchanges, the Company shall, subject to the other terms and conditions of this Article II, execute and the Trustee shall authenticate Definitive Notes and Global Notes at the Company’s and Registrar’s written request.
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No service charge shall be made to a Holder for any registration of transfer or exchange, but the Company may require the Holder to pay a sum sufficient to cover any transfer tax assessments or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charges payable upon exchange or transfer pursuant to Section 2.2, Section 2.6, Section 2.11, Section 2.13, Section 5.6 or Section 9.5).
The Company (and the Registrar) shall not be required to register the transfer of or exchange of any Note (A) for a period beginning (1) 15 calendar days before the mailing of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such mailing or (2) 15 calendar days before an interest payment date and ending on such interest payment date or (B) called for redemption, except the unredeemed portion of any Note being redeemed in part.
Prior to the due presentation for registration of transfer of any Note, the Company, the Trustee, the Paying Agent or the Registrar may deem and treat the person in whose name a Note is registered as the owner of such Note for the purpose of receiving payment of principal of, premium, if any, and (subject to paragraph 2 of the form of Note attached hereto as Exhibit A) interest on such Note and for all other purposes whatsoever, including without limitation the transfer or exchange of such Note, whether or not such Note is overdue, and none of the Company, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.
Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to Section 2.1(i) shall, except as otherwise provided by Section 2.6(d), bear the applicable legend regarding transfer restrictions applicable to the Definitive Note set forth in Section 2.1(d).
All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange.
(h) No Obligation of the Trustee. Neither the Trustee nor the Notes Collateral Agent shall have any responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in, DTC or other Person with respect to the accuracy of the records of DTC or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than DTC) of any notice (including any notice of redemption or purchase) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be DTC or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through DTC subject to the applicable rules and procedures of DTC. The Trustee and Notes Collateral Agent may rely and shall be fully protected in relying upon information furnished by DTC with respect to its members, participants and any beneficial owners.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among DTC participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. None of the Trustee, the Notes Collateral Agent or any of their agents shall have any responsibility for any actions taken or not taken by DTC.
Section 2.7. Temporary Notes. Until certificates representing Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate Temporary Regulation S Global Notes. Temporary Regulation S Global Notes shall be substantially in the form of certificated Notes but may have variations that the Company considers appropriate for Temporary Regulation S Global Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall, upon receipt of an Authentication Order, authenticate definitive Notes in exchange for Temporary Regulation S Global Notes. Holders and beneficial holders, as the case may be, of Temporary Regulation S Global Notes shall be entitled to all of the benefits accorded to Holders, or beneficial holders, respectively, of Notes under this Indenture.
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Section 2.8. [Reserved].
Section 2.9. [Reserved].
Section 2.10. [Reserved].
Section 2.11. Mutilated, Destroyed, Lost or Stolen Notes.
If a mutilated Note is surrendered to the Registrar or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Note if the requirements of Section 8-405 of the Uniform Commercial Code are met, such that the Holder (a) satisfies the Company and the Trustee that such Note has been lost, destroyed or wrongfully taken within a reasonable time after such Holder has notice of such loss, destruction or wrongful taking and the Registrar has not registered a transfer prior to receiving such notification, (b) makes such request to the Company and the Trustee prior to the Note being acquired by a protected purchaser as defined in Section 8-303 of the Uniform Commercial Code (a “protected purchaser”) and (c) satisfies any other reasonable requirements of the Trustee; provided, however, if after the delivery of such replacement Note, a protected purchaser of the Note for which such replacement Note was issued presents for payment or registration such replaced Note, the Trustee and/or the Company shall be entitled to recover such replacement Note from the Person to whom it was issued and delivered or any Person taking therefrom, except a protected 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 Company or the Trustee in connection therewith. Such Holder shall furnish an indemnity bond sufficient in the judgment of the (i) Trustee to protect the Trustee and (ii) the Company to protect the Company, the Trustee, the Paying Agent and the Registrar, from any loss which any of them may suffer if a Note is replaced, and, in the absence of notice to the Company, any Guarantor or the Trustee that such Note has been acquired by a protected purchaser, the Company shall execute, and upon receipt of an Issuer Order, the Trustee shall authenticate and make available for delivery, in exchange for any such mutilated Note or in lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section 2.11, the Company may require that such Holder pay a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of counsel and of the Trustee) in connection therewith.
Subject to the proviso in the initial paragraph of this Section 2.11, every new Note issued pursuant to this Section 2.11, in lieu of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Company, any Guarantor (if applicable) and any other obligor upon the Notes, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section 2.11 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.12. Outstanding Notes. Notes outstanding at any time are all Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those paid pursuant to Section 2.11 and those described in this Section 2.12 as not outstanding. A Note does not cease to be outstanding in the event the Company or an Affiliate of the Company holds the Note; provided, however, that (i) for purposes of determining which are outstanding for consent or voting purposes hereunder, the provisions of Section 14.5 shall apply and (ii) in determining whether the Trustee shall be protected in making a determination whether the Holders of the requisite principal amount of outstanding Notes are present at a meeting of Holders for quorum purposes or have consented to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver, amendment or modification hereunder, or relying upon any such quorum, consent or vote, only Notes which a Responsible Officer of the Trustee actually knows to be held by the Company or an Affiliate of the Company shall not be considered outstanding.
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If a Note is replaced pursuant to Section 2.11 (other than a mutilated Note surrendered for replacement), it ceases to be outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced Note is held by a protected purchaser. A mutilated Note ceases to be outstanding upon surrender of such Note and replacement pursuant to Section 2.11.
If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a Redemption Date or maturity date, money sufficient to pay all principal, premium, if any, and accrued interest 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 prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture, then on and after that date such Notes (or portions thereof) cease to be outstanding and interest on them ceases to accrue.
Section 2.13. Temporary Notes. In the event that Definitive Notes are to be issued under the terms of this Indenture, until such Definitive Notes are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Notes. Temporary Notes shall be substantially in the form, and shall carry all rights, of Definitive Notes but may have variations that the Company consider appropriate for temporary Notes. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate Definitive Notes. After the preparation of Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes upon surrender of the temporary Notes at any office or agency maintained by the Company for that purpose and such exchange shall be without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Company shall execute, and the Trustee shall, upon receipt of an Issuer Order, authenticate and make available for delivery in exchange therefor, one or more Definitive Notes representing an equal principal amount of Notes. Until so exchanged, the Holder of temporary Notes shall in all respects be entitled to the same benefits under this Indenture as a Holder of Definitive Notes.
Section 2.14. Cancellation. The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment or cancellation and dispose of such Notes in accordance with its internal policies and customary procedures (subject to the record retention requirements of the Exchange Act and the Trustee). If the Company or any Guarantor acquires any of the Notes, such acquisition shall not operate as a redemption or satisfaction of the Indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation pursuant to this Section 2.14. The Company may not issue new Notes to replace Notes it has paid or delivered to the Trustee for cancellation for any reason other than in connection with a transfer or exchange.
At such time as all beneficial interests in a Global Note have either been exchanged for Definitive Notes, transferred, redeemed, repurchased or canceled, such Global Note shall be returned by DTC to the Trustee for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is then the Notes Custodian for such Global Note) with respect to such Global Note, by the Trustee or the Notes Custodian, to reflect such reduction.
Section 2.15. Payment of Interest; Defaulted Interest. Interest on any Note which is payable, and is punctually paid or duly provided for, on any interest payment date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered at the close of business on the regular record date for such payment at the office or agency of the Company maintained for such purpose pursuant to Section 2.3.
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Any interest on any Note which is payable, but is not paid when the same becomes due and payable and such nonpayment continues for a period of 30 days shall forthwith cease to be payable to the Holder on the regular record date, and such defaulted interest and (to the extent lawful) interest on such defaulted interest at the rate borne by the Notes (such defaulted interest and interest thereon herein collectively called “Defaulted Interest”) shall be paid by the Company, at its election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date (not less than 30 days after such notice) of the proposed payment (the “Special Interest Payment Date”), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Section 2.15(a). Thereupon the Company shall fix a record date (the “Special Record Date”) for the payment of such Defaulted Interest, which date shall be not more than 20 calendar days and not less than 15 calendar days prior to the Special Interest Payment Date and not less than 10 calendar days after the receipt by the Trustee of the notice of the proposed payment. The Company shall promptly notify the Trustee in writing of such Special Record Date, and in the name and at the expense of the Company, the Trustee shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor to be given in the manner provided for in Article XIV, not less than 10 calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor having been so given, such Defaulted Interest shall be paid on the Special Interest Payment Date to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the provisions in Section 2.15(b).
(b) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after written notice given by the Company to the Trustee of the proposed payment pursuant to this Section 2.15(b), such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.15, each Note delivered under this Indenture upon registration of, transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
Section 2.16. CUSIP and ISIN Numbers. The Company in issuing the Notes may use “CUSIP” and “ISIN” numbers and, if so, the Trustee shall use “CUSIP” and “ISIN” numbers in notices of redemption or purchase as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption or purchase and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or purchase shall not be affected by any defect in or omission of such CUSIP and ISIN numbers. The Company shall promptly notify the Trustee in writing of any change in the CUSIP and ISIN numbers.
Section 2.17. Joint and Several Liability. Except as otherwise expressly provided herein, the Company and the Guarantors shall be jointly and severally liable for the performance of all obligations and covenants under this Indenture, the Notes and the Collateral Documents.
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Article III COVENANTS
Section 3.1. Payment of Notes. The Company shall promptly pay the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes and in this Indenture. Principal, premium, if any, and interest shall be considered paid on the date due if by 10:00 a.m. New York City time on such date the Trustee or the Paying Agent holds in accordance with this Indenture money sufficient to pay all principal, premium, if any, and interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the rate specified therefor in the Notes, and they shall pay interest on overdue installments of interest at the same rate to the extent lawful.
Section 3.2. Limitation on Indebtedness.
(a) The Company shall not, and shall not permit any of the Restricted Subsidiaries to, Incur any Indebtedness (including Acquired Indebtedness); provided, however, that the Company and any of the Restricted Subsidiaries may Incur Indebtedness (including Acquired Indebtedness), if on the date of such Incurrence and after giving pro forma effect thereto (including pro forma application of the proceeds thereof), the Consolidated Total Leverage Ratio would have been no greater than (i) prior to the Merger Closing Date, 5.00:1.00 and (ii) on and after the Merger Closing Date, 4.00:1.00; provided, further, that Non-Guarantors may not Incur Indebtedness under this Section 3.2(a) if, after giving pro forma effect to such Incurrence (including a pro forma application of the net proceeds therefrom), more than an aggregate of the greater of (a) $78.0 million and (b) 25.0% of LTM EBITDA of Indebtedness of Non-Guarantors would be outstanding pursuant to this Section 3.2(a) at such time when taken together with the aggregate amount of Indebtedness of Non-Guarantors outstanding pursuant to Sections 3.2(b)(5) and 3.2(b)(11).
(b) Section 3.2(a) shall not prohibit the Incurrence of the following Indebtedness:
(1) Indebtedness Incurred under any Credit Facility (including letters of credit or bankers’ acceptances issued or created under any Credit Facility), and Guarantees in respect of such Indebtedness, up to an aggregate principal amount at the time of Incurrence not exceeding the sum of (a) the sum of (i) on and after the Merger Closing Date, the greater of $150.0 million and 50.0% of LTM EBITDA, (ii) $180.0 million, representing the aggregate revolving credit commitment amount under the Credit Agreement as of the Issue Date, (iii) €434.5 million, representing the outstanding principal amount of the Euro Term B-1 Loans as of the Issue Date, (iv) the outstanding principal amount of the Dollar Fixed Rate Term B-1 Loans as of the Issue Date, and (v) the outstanding principal amount of the Existing Senior Secured Notes as of the Issue Date, (b) an additional amount of Secured Pari Passu Indebtedness such that, if after giving pro forma effect to the Incurrence of such additional amount and the application of the proceeds therefrom, the Consolidated First Lien Secured Leverage Ratio would be no greater than 3.00:1.00 outstanding at any one time and (c) an additional amount of Secured Junior Indebtedness such that, if after giving pro forma effect to the Incurrence of such additional amount and the application of the proceeds therefrom, the Consolidated Total Leverage Ratio would be no greater than (A) prior to the Merger Closing Date, shall be no greater than 5.00:1.00 and (B) on and after the Merger Closing Date, shall be no greater than 4.00:1.00 outstanding at any one time and in each case, any Refinancing Indebtedness in respect thereof;
(2) Guarantees by the Company or any Restricted Subsidiary of Indebtedness or other obligations of the Company or any Restricted Subsidiary so long as the Incurrence of such Indebtedness or other obligations is not prohibited by the terms of this Indenture;
(3) Indebtedness of the Company owing to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held by the Company or any Restricted Subsidiary; provided, however, that:
(i) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary; and
(ii) any sale or other transfer of any such Indebtedness to a Person other than the Company or a Restricted Subsidiary;
shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be; provided further that any Indebtedness of the Company or a Guarantor owing to any Restricted Subsidiary that is not a Guarantor shall be made subject to customary subordination terms;
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(4) Indebtedness represented by (i) the Notes (other than any Additional Notes), including any Guarantee thereof, (ii) any Indebtedness (other than Indebtedness Incurred pursuant to Section 3.2(b)(1) and Section 3.2(b)(4)(i)) outstanding on the Issue Date and any Guarantees thereof, (iii) Refinancing Indebtedness (including, with respect to the Notes and any Guarantee thereof) Incurred in respect of any Indebtedness described in this Section 3.2(b)(4) or Section 3.2(b)(2) or Section 3.2(b)(5) or Incurred pursuant to Section 3.2(a), and (iv) Management Advances;
(5) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Restricted Subsidiary (or is merged or consolidated with or into the Company or a Restricted Subsidiary) or Indebtedness attaching to assets that are acquired by the Company or any Restricted Subsidiary (including any Indebtedness assumed by the Company or any Restricted Subsidiary in connection with any acquisition of any assets or Person), in each case after the Issue Date as the result of an acquisition or Investment not prohibited by this Indenture and any Refinancing Indebtedness in respect thereof (other than, in each case, any Person that becomes a Restricted Subsidiary after the Issue Date solely as a result of a Delaware LLC Division); provided that (i) such Indebtedness is not Incurred in contemplation of such acquisition or other Investment and (ii) after giving pro forma effect to the Incurrence of such Indebtedness, the Consolidated Total Leverage Ratio would be no greater than (x) 4.00:1.00 and (y) the Consolidated Total Leverage Ratio immediately prior to such consummation of such acquisition or other Investment;
(6) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes);
(7) Indebtedness (i) represented by Capitalized Lease Obligations or Purchase Money Obligations in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this subclause (i) and then outstanding, does not exceed the greater of (x) $65.0 million and (y) 20.0% of LTM EBITDA at the time of Incurrence, and any Refinancing Indebtedness in respect thereof and (ii) arising out of Sale and Leaseback Transactions;
(8) Indebtedness in respect of (i) workers’ compensation claims, health, disability or other employee benefits, property, casualty or liability insurance, self-insurance obligations, customer guarantees, performance, indemnity, surety, judgment, bid, appeal, advance payment (including progress premiums), or other guarantees or other similar bonds, instruments or obligations, completion guarantees and warranties or relating to liabilities, obligations or guarantees Incurred in the ordinary course of business or consistent with past practice or industry norms; (ii) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or consistent with past practice or industry norms; (iii) customer deposits and advance payments (including progress premiums) received from customers for goods or services purchased in the ordinary course of business or consistent with past practice or industry norms; (iv) letters of credit, bankers’ acceptances, discounted bills of exchange, discounting or factoring of receivables or payables for credit management purposes, warehouse receipts, guarantees or other similar instruments or obligations issued or entered into, or relating to liabilities or obligations Incurred in the ordinary course of business or consistent with past practice or industry norms; (v) Cash Management Obligations; and (vi) Settlement Indebtedness;
(9) Indebtedness arising from agreements providing for guarantees, indemnification, obligations in respect of earn-outs, deferred purchase price or other adjustments of purchase price or, in each case, similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any business, assets a Person (including any Capital Stock of a Subsidiary) or Investment (other than Guarantees of Indebtedness Incurred by any Person acquiring or disposing of such business, assets, Person or Investment for the purpose of financing such acquisition or disposition);
(10) Indebtedness in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness incurred pursuant to this clause (10) and then outstanding, will not exceed 100% of the net cash proceeds received by the Company from the issuance or sale (other than to a Restricted Subsidiary) of its Capital Stock or otherwise contributed to the equity (in each case, other than through the issuance of Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) of the Company, in each case, subsequent to the Issue Date, and any Refinancing Indebtedness in respect thereof; provided, however, that (i) any such net cash proceeds that are so received or contributed shall not increase the amount available for making Restricted Payments to the extent the Company and its Restricted Subsidiaries Incur Indebtedness in reliance thereon and (ii) any net cash proceeds that are so received or contributed shall be excluded for purposes of Incurring Indebtedness pursuant to this clause (10) to the extent such net cash proceeds or cash have been applied to make Restricted Payments;
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(11) Indebtedness of Non-Guarantors in an aggregate principal amount not to exceed the greater of (a) $75.0 million and (b) 20.0% of LTM EBITDA at the time of incurrence, and any Refinancing Indebtedness in respect thereof; provided that Non-Guarantors may not incur Indebtedness under this clause if, after giving pro forma effect to such incurrence (including a pro forma application of the net proceeds therefrom), more than an aggregate of the greater of (a) $78.0 million and (b) 25.0% of LTM EBITDA of Indebtedness of Non-Guarantors would be outstanding pursuant to this clause at such time when taken together with the aggregate amount of Indebtedness of Non-Guarantors outstanding pursuant to Section 3.2(a) and Section 3.2(b)(5).
(12) (i) Indebtedness issued by the Company or any of its Subsidiaries to any future, present or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its Subsidiaries or any Parent Entity, in each case to finance the purchase or redemption of Capital Stock of the Company or any Parent Entity that is not prohibited by Section 3.3 and (ii) Indebtedness consisting of obligations under deferred compensation or any other similar arrangements Incurred in the ordinary course of business, consistent with past practice or industry norms or in connection with the Merger, any Investment or any acquisition (by merger, consolidation, amalgamation or otherwise);
(13) Indebtedness of the Company or any of its Restricted Subsidiaries consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case Incurred in the ordinary course of business or consistent with past practice or industry norms;
(14) Indebtedness in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, will not exceed the greater of (i) $78.0 million and (ii) 25.0% of LTM EBITDA and any Refinancing Indebtedness in respect thereof;
(15) Indebtedness in respect of any Qualified Securitization Financing or any Receivables Facility;
(16) any obligation, or guaranty of any obligation, of the Company or any Restricted Subsidiary to reimburse or indemnify a Person extending credit to customers of the Company or a Restricted Subsidiary Incurred in the ordinary course of business or consistent with past practice or industry norms for all or any portion of the amounts payable by such customers to the Person extending such credit;
(17) Indebtedness to a customer to finance the acquisition of any equipment necessary to perform services for such customer; provided that the terms of such Indebtedness are consistent with those entered into with respect to similar Indebtedness prior to the Issue Date, including, if so consistent, that (1) the repayment of such Indebtedness is conditional upon such customer ordering a specific amount or volume, as applicable, of goods or services and (2) such Indebtedness does not bear interest or provide for scheduled amortization or maturity;
(18) Indebtedness Incurred by the Company or any of its Restricted Subsidiaries to the extent that the net proceeds thereof are promptly deposited with the Trustee to satisfy or discharge the Notes or exercise the Company’s legal defeasance or covenant defeasance, in each case, in accordance with this Indenture;
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(19) Indebtedness of the Company or any of its Restricted Subsidiaries arising pursuant to or in connection with any Permitted Intercompany Activities, Permitted Tax Restructuring or related transactions;
(20) to the extent constituting Indebtedness, Guarantees in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Company and its Subsidiaries; and
(21) Indebtedness, the proceeds of which are used, on the Merger Closing Date, solely to (x) pay all or a portion of the “Maximum Cash Election Consideration” (as defined in the Merger Agreement) and/or (y) refinance any Indebtedness of Shutterstock and its Subsidiaries outstanding immediately prior to the Merger Closing Date (the foregoing clauses (x) and (y), collectively, the “Permitted Merger Closing Date Uses”); provided that (1) no amounts shall be permitted to be Incurred pursuant to this clause (21) until the Merger Closing Date (other than with respect to Indebtedness funded into escrow pending consummation of the Merger, which Indebtedness shall not be permitted to be released from escrow prior to the Merger Closing Date, except to the extent such release is substantially concurrent), (2) no amounts shall be permitted to be Incurred pursuant to this clause (21) unless, as of the Merger Closing Date, the Company has first used all capacity to Incur Indebtedness pursuant to Section 3.2(b)(1)(b) and (3) the maximum amount that may be Incurred pursuant to this clause (21) shall be an amount equal to the Permitted Merger Closing Date Uses less available capacity to Incur Indebtedness pursuant to Section 3.2(b)(1)(b); provided, further that, for the avoidance of doubt, on and after the Merger Closing Date, the basket described in this clause (21) shall not provide capacity for any subsequent debt incurrence.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 3.2:
(1) in the event that all or any portion of any item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in Section 3.2(a) and Section 3.2(b), the Company, in its sole discretion, will classify, and may from time to time reclassify, such item of Indebtedness (or any portion thereof) and include the amount and type of such Indebtedness in Section 3.2(a) or in one of the clauses of Section 3.2(b); provided that all Indebtedness outstanding on the Issue Date under the Credit Agreement (and any Refinancing Indebtedness in respect thereof) shall be deemed Incurred on the Issue Date under Section 3.2(b)(1)(a)(ii), Section 3.2(b)(1)(a)(iii) or Section 3.2(b)(1)(a)(iv) (as applicable) and may not be reclassified; provided, further, that all Indebtedness outstanding on the Issue Date under the Existing Senior Secured Notes (and any Refinancing Indebtedness in respect thereof) shall be deemed incurred on the Issue Date under Section 3.2(b)(1)(a)(v) and may not be reclassified;
(2) additionally, all or any portion of any item of Indebtedness may later be reclassified as having been Incurred pursuant to any type of Indebtedness described in Section 3.2(a) and Section 3.2(b) so long as such Indebtedness is permitted to be incurred pursuant to such provision and any related Liens are permitted to be incurred at the time of reclassification (it being understood that any Indebtedness incurred pursuant to one of the clauses of Section 3.2(b) shall cease to be deemed incurred or outstanding for purposes of such clause but shall be deemed incurred for the purposes of Section 3.2(a) from and after the first date on which the Company or its Restricted Subsidiaries could have incurred such Indebtedness under Section 3.2(a) without reliance on such clause);
(3) at the time of incurrence, division, classification or reclassification, the Company will be entitled to divide and classify an item of Indebtedness in more than one of the categories of Indebtedness described in Section 3.2(a) or Section 3.2(b)(1) through Section 3.2(b)(21) (or any portion thereof) without giving pro forma effect to the Indebtedness incurred, divided, classified or reclassified pursuant to any other clause or paragraph above (or any portion thereof) when calculating the amount of Indebtedness that may be incurred, divided, classified or reclassified pursuant to any such clause or Section (or any portion thereof) at such time;
(4) in the case of any Refinancing Indebtedness, when measuring the outstanding amount of such Indebtedness, such amount shall not include the aggregate amount of accrued and unpaid interest, dividends, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including original issue discount, upfront fees or similar fees) in connection with such refinancing;
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(5) Guarantees of, or obligations in respect of letters of credit, bankers’ acceptances or other similar instruments relating to, or Liens securing, Indebtedness that is otherwise included in the determination of a particular amount of Indebtedness shall not be included;
(6) if obligations in respect of letters of credit, bankers’ acceptances or other similar instruments are incurred pursuant to any Credit Facility and are being treated as incurred pursuant to Sections 3.2(a) or (b) and the letters of credit, bankers’ acceptances or other similar instruments relate to other Indebtedness, then such other Indebtedness shall not be included;
(7) the principal amount of any Disqualified Stock of the Company or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary, will be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof;
(8) Indebtedness permitted by this Section 3.2 need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this Section 3.2 permitting such Indebtedness;
(9) for all purposes under this Indenture, including for purposes of calculating the Consolidated First Lien Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, in connection with the incurrence, issuance or assumption of any Indebtedness pursuant to Section 3.2(a) or Section 3.2(b) or the incurrence or creation of any Lien pursuant to the definition of “Permitted Liens” or otherwise, the Company may elect, at its option, to treat all or any portion of the committed amount of any Indebtedness (and the issuance and creation of letters of credit and bankers’ acceptances thereunder) which is to be incurred (or any commitment in respect thereof) or secured by such Lien, as the case may be (any such committed amount elected until revoked as described below, the “Reserved Indebtedness Amount”), as being incurred as of such election date, and, if such Consolidated First Lien Secured Leverage Ratio, Consolidated Total Leverage Ratio or other provision of this Indenture, as applicable, is complied with (or satisfied) with respect thereto on such election date, any subsequent borrowing or reborrowing thereunder (and the issuance and creation of letters of credit and bankers’ acceptances thereunder) will be deemed to be permitted under this Section 3.2, the definition of “Permitted Liens” or Section 3.6, as applicable, whether or not the Consolidated First Lien Secured Leverage Ratio, the Consolidated Total Leverage Ratio or other provision of this Indenture, as applicable, at the actual time of any subsequent borrowing or reborrowing (or issuance or creation of letters of credit or bankers’ acceptances thereunder) is complied with (or satisfied) for all purposes (including as to the absence of any continuing Default or Event of Default); provided that for purposes of subsequent calculations of the Consolidated First Lien Secured Leverage Ratio, the Consolidated Total Leverage Ratio or other provision of this Indenture, as applicable, the Reserved Indebtedness Amount shall be deemed to be outstanding, whether or not such amount is actually outstanding, for so long as such commitments are outstanding or until the Company revokes an election of a Reserved Indebtedness Amount;
(10) when calculating the availability under any basket or ratio under this Indenture or compliance with any provision of this Indenture in connection with any Limited Condition Transaction and any actions or transactions related thereto (including acquisitions, Investments, the incurrence, issuance or assumption of Indebtedness and the use of proceeds thereof, the incurrence or creation of Liens, repayments, Restricted Payments and Asset Dispositions), in each case, at the option of the Company (the Company’s election to exercise such option, an “LCT Election”), the date of determination for availability under any such basket or ratio and whether any such action or transaction is permitted (or any requirement or condition therefor is complied with or satisfied (including as to the absence of any continuing Default or Event of Default)) under this Indenture shall be deemed to be the date (the “LCT Test Date”) either (a) the definitive agreement (or other relevant definitive documentation) for such Limited Condition Transaction is entered into (or, if applicable, the date of delivery of an irrevocable declaration of a Restricted Payment or similar event or the date of any notice, which may be conditional, of such a repayment, repurchase or refinancing of Indebtedness is given to the holders of such Indebtedness), or (b) solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 announcement” of a firm intention to make an offer (or equivalent announcement in another jurisdiction) (an “LCT Public Offer”) in respect of a target of a Limited Condition Transaction and, in each case, if, after giving pro forma effect to the Limited Condition Transaction and any actions or transactions related thereto (including acquisitions, Investments, the incurrence, issuance or assumption of Indebtedness and the use of proceeds thereof, the incurrence or creation of Liens, repayments, Restricted Payments and Asset Dispositions) and any related pro forma adjustments, the Company or any of its Restricted Subsidiaries would have been permitted to take such actions or consummate such transactions on the relevant LCT Test Date in compliance with such ratio, test or basket (and any related requirements and conditions), such ratio, test or basket (and any related requirements and conditions) shall be deemed to have been complied with (or satisfied) for all purposes (in the case of Indebtedness, for example, whether such Indebtedness is committed, issued, assumed or incurred at the LCT Test Date or at any time thereafter); provided that (a) if financial statements for one or more subsequent fiscal quarters shall have become available, the Company may elect, in its sole discretion, to redetermine all such ratios, tests or baskets on the basis of such financial statements, in which case, such date of redetermination shall thereafter be the applicable LCT Test Date for purposes of such ratios, tests or baskets and (b) except as contemplated in the foregoing clause (a), compliance with such ratios, test or baskets (and any related requirements and conditions) shall not be determined or tested at any time after the applicable LCT Test Date for such Limited Condition Transaction and any actions or transaction related thereto (including acquisitions, Investments, the incurrence, issuance or assumption of Indebtedness and the use of proceeds thereof, the incurrence or creation of Liens, repayments, Restricted Payments and Asset Dispositions).
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For the avoidance of doubt, if the Company has made an LCT Election, (1) if any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date would at any time after the LCT Test Date have been exceeded or otherwise failed to have been complied with as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in EBITDA or Total Assets of the Company or the Person subject to such Limited Condition Transaction, such baskets, tests or ratios will not be deemed to have been exceeded or failed to have been complied with as a result of such fluctuations; (2) if any applicable exchange rate utilized in calculating compliance with any dollar-based provision of this Indenture changes from the LCT Test Date to the date of consummation of such Investment, acquisition or repayment, repurchase or refinancing of Indebtedness, such change will not be taken into account for purposes of determining whether any Indebtedness or Lien that is being incurred in connection with such Investment, acquisition or repayment, repurchase or refinancing of Indebtedness complies with any such dollar-based provision of this Indenture, or in connection with compliance by the Company or any Restricted Subsidiary with any other provision of the Note Documents or any other transaction undertaken in connection with such Investment, acquisition or repayment, repurchase or refinancing of Indebtedness; (3) if any related requirements and conditions (including as to the absence of any continuing Default or Event of Default) for which compliance or satisfaction was determined or tested as of the LCT Test Date would at any time after the LCT Test Date not have been complied with or satisfied (including due to the occurrence or continuation of a Default or Event of Default), such requirements and conditions will not be deemed to have been failed to be complied with or satisfied (and such Default or Event of Default shall be deemed not to have occurred or be continuing); and (4) in calculating the availability under any ratio, test or basket in connection with any action or transaction unrelated to such Limited Condition Transaction following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement or date for redemption, purchase or repayment specified in an irrevocable notice for such Limited Condition Transaction is terminated, expires or passes (or, if applicable, the irrevocable notice is terminated, expires or passes or, as applicable, the offer in respect of an LCT Public Offer for, such acquisition is terminated), as applicable, without consummation of such Limited Condition Transaction, any such ratio, test or basket shall be determined or tested giving pro forma effect to such Limited Condition Transaction;
(11) notwithstanding anything in this Section 3.2 to the contrary, in the case of any Indebtedness Incurred to refinance Indebtedness initially incurred in reliance on a clause of Section 3.2(b) measured by reference to a percentage of LTM EBITDA at the time of Incurrence, if such refinancing would cause the percentage of LTM EBITDA restriction to be exceeded if calculated based on the percentage of LTM EBITDA on the date of such refinancing, such percentage of LTM EBITDA restriction shall not be deemed to be exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus accrued and unpaid interest, dividends, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including original issue discount, upfront fees or similar fees) in connection with such refinancing; and
(12) the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with GAAP.
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Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest in the form of additional Indebtedness, the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock or the reclassification of commitments or obligations not treated as Indebtedness due to a change in GAAP, will not be deemed to be an Incurrence of Indebtedness for purposes of this Section 3.2.
If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary as of such date (and, if such Indebtedness is not permitted to be Incurred as of such date under this Section 3.2, the Company shall be in default of this covenant).
For purposes of determining compliance with any Dollar-denominated restriction on the incurrence of Indebtedness, the Dollar equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (a) the principal amount of such Indebtedness being refinanced plus (b) the aggregate amount of accrued and unpaid interest, dividends, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including original issue discount, upfront fees or similar fees) in connection with such refinancing.
Notwithstanding any other provision of this Section 3.2, the maximum amount of Indebtedness that the Company or a Restricted Subsidiary may Incur pursuant to this Section 3.2 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.
For purposes of this Indenture, (a) unsecured Indebtedness shall not be treated as subordinated or junior to Secured Indebtedness merely because it is unsecured and (b) senior Indebtedness shall not be treated as subordinated or junior to any other senior Indebtedness merely because it has a junior priority with respect to the same collateral or is secured by different collateral or because it is guaranteed by different obligors.
Section 3.3. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries, directly or indirectly, to:
(1) declare or pay any dividend or make any distribution on or in respect of the Company’s or any Restricted Subsidiary’s Capital Stock (including, any such payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) except:
(X) dividends, payments or distributions payable in Capital Stock of the Company (other than Disqualified Stock) or in options, warrants or other rights to purchase such Capital Stock of the Company; and
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(Y) dividends, payments or distributions payable to the Company or a Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to holders of its Capital Stock other than the Company or another Restricted Subsidiary on no more than a pro rata basis);
(2) purchase, repurchase, redeem, retire or otherwise acquire or retire for value any Capital Stock of the Company or any Parent Entity held by Persons other than the Company or a Restricted Subsidiary;
(3) purchase, repurchase, redeem, defease or otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Indebtedness (other than (a) any such purchase, repurchase, redemption, defeasance or other acquisition or retirement in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of purchase, repurchase, redemption, defeasance or other acquisition or retirement and (b) any Indebtedness Incurred pursuant to Section 3.2(b)(3)); or
(4) make any Restricted Investment;
(any such dividend, distribution, payment, purchase, redemption, repurchase, defeasance, other acquisition, retirement or Restricted Investment referred to in clauses (1) through (4) above are referred to herein as a “Restricted Payment”), if at the time the Company or such Restricted Subsidiary makes such Restricted Payment:
(i) an Event of Default shall have occurred and be continuing (or would immediately thereafter result therefrom);
(ii) the aggregate amount of such Restricted Payment and all other Restricted Payments made subsequent to the Issue Date (and not returned or rescinded) (including Permitted Payments (as defined below) made pursuant to Section 3.3(b)(1) (without duplication) and (7), but excluding all other Restricted Payments made pursuant to Section 3.3(b)) would exceed the sum of (without duplication):
(A) an amount equal to 50% of Consolidated Net Income for the period (treated as one accounting period) from October 1, 2024, to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment for which consolidated financial statements are available (or, in the case such Consolidated Net Income is a deficit, minus 100% of such deficit; provided that in no event shall the amount under this clause (A) be less than zero);
(B) 100% of the aggregate amount of cash, and the fair market value of property or assets or marketable securities, received by the Company from the issue or sale of its Capital Stock or as the result of a merger or consolidation with another Person subsequent to the Issue Date or otherwise contributed to the equity (in each case, other than through the issuance of Disqualified Stock or Designated Preferred Stock) of the Company or a Restricted Subsidiary (including the aggregate principal amount of any Indebtedness of the Company or a Restricted Subsidiary contributed to the Company or a Restricted Subsidiary for cancellation) or that becomes part of the capital of the Company or a Restricted Subsidiary through consolidation or merger subsequent to the Issue Date (other than (x) net cash proceeds or property or assets or marketable securities received from an issuance or sale of such Capital Stock to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Company or any Subsidiary of the Company for the benefit of their employees to the extent funded by the Company or any Restricted Subsidiary, (y) cash or property or assets or marketable securities to the extent that any Restricted Payment has been made from such proceeds in reliance on Section 3.3(b)(6) and (z) Excluded Contributions);
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(C) 100% of the aggregate amount of cash, and the fair market value of property or assets or marketable securities, received by the Company or any Restricted Subsidiary from the issuance or sale (other than to the Company or a Restricted Subsidiary or an employee stock ownership plan or trust established by the Company or any Subsidiary of the Company for the benefit of their employees to the extent funded by the Company or any Restricted Subsidiary) by the Company or any Restricted Subsidiary subsequent to the Issue Date of any Indebtedness, Disqualified Stock or Designated Preferred Stock that has been converted into or exchanged for Capital Stock of the Company (other than Disqualified Stock or Designated Preferred Stock) plus, without duplication, the amount of any cash, and the fair market value of property or assets or marketable securities, received by the Company or any Restricted Subsidiary upon such conversion or exchange;
(D) 100% of the aggregate amount received in cash and the fair market value, as determined in good faith by the Company, of marketable securities or other property received by means of: (i) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of, or other returns on Investments from, Restricted Investments made by the Company or the Restricted Subsidiaries and repurchases and redemptions of, or cash distributions or cash interest received in respect of, such Restricted Investments from the Company or the Restricted Subsidiaries and repayments of loans or advances, and releases of guarantees, which constitute Restricted Investments by the Company or the Restricted Subsidiaries, in each case after the Issue Date; or (ii) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of the Capital Stock of an Unrestricted Subsidiary or a dividend, payment or distribution from an Unrestricted Subsidiary (other than to the extent of the amount of the Investment that constituted a Permitted Investment or was made under Section 3.3(b)(17) and will increase the amount available under the applicable clause of the definition of “Permitted Investment” or Section 3.3(b)(17), as the case may be) or a dividend from a Person that is not a Restricted Subsidiary after the Issue Date; and
(E) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger, amalgamation or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of all or substantially all of the assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary after the Issue Date, the fair market value of the Investment in such Unrestricted Subsidiary (or the assets transferred), as determined in good faith by the Company, at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary or at the time of such merger, amalgamation or consolidation or transfer of assets (after taking into consideration any Indebtedness associated with the Unrestricted Subsidiary so designated or merged, amalgamated or consolidated or Indebtedness associated with the assets so transferred), other than to the extent of the amount of the Investment that constituted a Permitted Investment or was made under Section 3.3(b)(17), and will increase the amount available under the applicable clause of the definition of “Permitted Investment” or Section 3.3(b)(17), as the case may be; or
(iii) in the case of a Restricted Payment under clauses (1), (2) and (3) above, immediately after giving pro forma effect to the making of any such Restricted Payment and the incurrence of any Indebtedness the net proceeds of which are used to make such Restricted Payment, the (i) Consolidated First Lien Secured Leverage Ratio would (A) prior to the Merger Closing Date, exceed 3.50:1.00 and (B) on and after the Merger Closing Date, exceed 2.75:1.00 and (ii) Consolidated Total Leverage Ratio would (A) prior to the Merger Closing Date, exceed 5.50:1.00 and (B) on and after the Merger Closing Date, exceed 4.75:1.00.
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(b) Section 3.3(a) will not prohibit any of the following (collectively, “Permitted Payments”):
(1) the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Indenture or the redemption, repurchase or retirement of Indebtedness if, at the date of any redemption notice, such payment would have complied with the provisions of this Indenture as if it were and is deemed at such time to be a Restricted Payment at the time of such notice;
(2) (a) any prepayment, purchase, repurchase, redemption, defeasance, discharge, retirement or other acquisition of Capital Stock, including any accrued and unpaid dividends thereon (“Treasury Capital Stock”) or Subordinated Indebtedness made by exchange (including any such exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional shares) for, or out of the proceeds of the substantially concurrent sale of, Capital Stock of the Company or any Parent Entity to the extent contributed to the Company (in each case, other than Disqualified Stock or Designated Preferred Stock) (“Refunding Capital Stock”), (b) the declaration and payment of dividends on Treasury Capital Stock out of the proceeds of the substantially concurrent sale or issuance (other than to a Subsidiary of the Company or to an employee stock ownership plan or any trust established by the Company or any of its Subsidiaries) of Refunding Capital Stock and (c) if immediately prior to the retirement of Treasury Capital Stock, the declaration and payment of dividends thereon was permitted under Section 3.3(b)(13), the declaration and payment of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Capital Stock of any Parent Entity) in an aggregate amount per year no greater than the aggregate amount of dividends per annum that were declarable and payable on such Treasury Capital Stock immediately prior to such retirement;
(3) any prepayment, purchase, repurchase, exchange, redemption, defeasance, discharge, retirement or other acquisition of Subordinated Indebtedness made by exchange for, or out of the proceeds of the substantially concurrent sale of, Refinancing Indebtedness permitted to be incurred pursuant to Section 3.2;
(4) any prepayment, purchase, repurchase, exchange, redemption, defeasance, discharge, retirement or other acquisition of Preferred Stock of the Company or a Restricted Subsidiary made by exchange for, or out of the proceeds of the substantially concurrent sale of, Preferred Stock of the Company or a Restricted Subsidiary, as the case may be, that, in each case, is permitted to be Incurred pursuant to Section 3.2;
(5) any prepayment, purchase, repurchase, exchange, redemption, defeasance, discharge, retirement or other acquisition of Subordinated Indebtedness of the Company or a Restricted Subsidiary or Disqualified Stock or Preferred Stock of a Restricted Subsidiary:
(i) from net cash proceeds to the extent permitted under Section 3.5, but only if the Company shall have first complied with the terms described under Section 3.5 and purchased all Notes tendered pursuant to any offer to repurchase all the Notes required thereby, prior to prepaying, purchasing, repurchasing, redeeming, defeasing, discharging, retiring or otherwise acquiring such Subordinated Indebtedness, Disqualified Stock or Preferred Stock; or
(ii) to the extent required by the agreement governing such Subordinated Indebtedness, Disqualified Stock or Preferred Stock, following the occurrence of (A) a Change of Control (or other similar event described therein as a “change of control”) or (B) an Asset Disposition (or other similar event described therein as an “asset disposition” or “asset sale”), but only if the Company shall have first complied with the terms described under Section 3.5 or Section 3.9, as applicable, and purchased all Notes tendered pursuant to the offer to repurchase all the Notes required thereby, prior to purchasing, repurchasing, redeeming, defeasing or otherwise acquiring or retiring such Subordinated Indebtedness, Disqualified Stock or Preferred Stock; or
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(iii) consisting of Acquired Indebtedness (other than Indebtedness Incurred (A) to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Company or a Restricted Subsidiary or (B) otherwise in connection with or contemplation of such acquisition);
(6) a Restricted Payment to pay for the prepayment, purchase, repurchase, redemption, defeasance, discharge, retirement or other acquisition of Capital Stock of the Company or any Parent Entity held by any future, present or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its Subsidiaries or any Parent Entity pursuant to any management equity plan, stock option plan, phantom equity plan or any other management, employee benefit or other compensatory plan or agreement (and any successor plans or arrangements thereto), employment, termination or severance agreement, or any stock subscription or equityholder agreement (including, for the avoidance of doubt, any principal and interest payable on any Indebtedness issued by the Company or any Parent Entity in connection with such prepayment, purchase, repurchase, redemption, defeasance, discharge, retirement or other acquisition), including any Capital Stock rolled over, accelerated or paid out by or to any employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its Subsidiaries or any Parent Entity in connection with any transaction; provided, however, that the aggregate Restricted Payments made under this clause do not exceed the greater of $31.0 million and 10.0% of LTM EBITDA in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds from the sale of Capital Stock (other than Disqualified Stock) of the Company and, to the extent contributed to the capital of the Company (other than through an Excluded Contribution), the cash proceeds from the sale of Capital Stock of any Parent Entity, in each case, to any future, present or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its Subsidiaries or any Parent Entity that occurred after the Issue Date, to the extent the cash proceeds from the sale of such Capital Stock have not otherwise been applied to the payment of Restricted Payments by virtue of Section 3.3(a)(ii); plus
(ii) the cash proceeds of key man life insurance policies received by the Company or its Restricted Subsidiaries (or any Parent Entity to the extent contributed to the Company) after the Issue Date; less
(iii) the amount of any Restricted Payments made in previous calendar years pursuant to clauses (i) and (ii) of this Section 3.3(b)(6);
and provided that the Company may elect to apply all or any portion of the aggregate increase contemplated by subclauses (i) and (ii) of this clause (6) in any fiscal year; provided, further, that (i) cancellation of Indebtedness owing to the Company or any Restricted Subsidiary from any future, present or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company or Restricted Subsidiaries or any Parent Entity in connection with a repurchase of Capital Stock of the Company or any Parent Entity and (ii) the repurchase of Capital Stock deemed to occur upon the exercise of options, warrants or similar instruments if such Capital Stock represents all or a portion of the exercise price thereof or payments, in lieu of the issuance of fractional shares of such Capital Stock or in respect of withholding to pay other taxes payable in connection therewith, in the case of each of clauses (i) and (ii), will not be deemed to constitute a Restricted Payment for purposes of this Section 3.3 or any other provision of this Indenture;
(7) the declaration and payment of dividends on Disqualified Stock of the Company or any of its Restricted Subsidiaries or Preferred Stock of a Restricted Subsidiary, Incurred in accordance with the terms of Section 3.2;
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(8) payments made or expected to be made by the Company or any Restricted Subsidiary (including payments by the Company or any Restricted Subsidiary to a Parent Entity so that such Parent Entity may make payments) in respect of withholding or similar Taxes payable in connection with the exercise or vesting of Capital Stock or any other equity award by any future, present or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company or any Restricted Subsidiary or any Parent Entity and purchases, repurchases, redemptions, defeasances or other acquisitions or retirements of Capital Stock deemed to occur upon the exercise, conversion or exchange of stock options, warrants, equity-based awards or other rights in respect thereof if such Capital Stock represents a portion of the exercise price thereof or payments in respect of withholding or similar Taxes payable upon exercise or vesting thereof;
(9) dividends, loans, advances or distributions to any Parent Entity or other payments by the Company or any Restricted Subsidiary in amounts equal to (without duplication):
(i) Permitted Tax Amounts;
(ii) amounts constituting or to be used for purposes of making payments to the extent specified in Section 3.8(b)(2), (3), (5), (11), (12), (13), (15) and (19); and
(iii) the amounts required for any Parent Entity to pay expenses, costs, judgments, settlements and losses in connection with any Specified Litigation in an aggregate amount not to exceed $150.0 million; and
(iv) the amounts required for any Parent Entity to pay its franchise or similar taxes required to maintain its legal existence or any Parent Entity Expenses;
(10) (i) the declaration and payment of dividends on the common stock or common equity interests of the Company or any Parent Entity (and any equivalent declaration and payment of a distribution of any security exchangeable for such common stock or common equity interests to the extent required by the terms of any such exchangeable securities and any Restricted Payment to any such Parent Entity to fund the payment by such Parent Entity of dividends on such entity’s Capital Stock), following a public offering of such common stock or common equity interests (or such exchangeable securities, as applicable), in an amount in any fiscal year not to exceed 6.0% of the amount of net cash proceeds received by or contributed to the Company or any of its Restricted Subsidiaries from any such public offering; or (ii) in lieu of all or a portion of the dividends permitted by clause (i), any prepayment, purchase, repurchase, redemption, defeasance, discharge, retirement or other acquisition of the Company’s or any Parent Entity’s Capital Stock (and any equivalent declaration and payment of a distribution of any security exchangeable for such common stock or common equity interests to the extent required by the terms of any such exchangeable securities and any Restricted Payment to any such Parent Entity to fund the payment by such Parent Entity of dividends on such entity’s Capital Stock) for aggregate consideration that, when taken together with dividends permitted by clause (i), does not exceed the amount contemplated by clause (ii);
(11) payments by the Company, or loans, advances, dividends or distributions to any Parent Entity to make payments, to holders of Capital Stock of the Company or any Parent Entity in lieu of the issuance of fractional shares of such Capital Stock, provided, however, that any such payment, loan, advance, dividend or distribution shall not be for the purpose of evading any limitation of this Section 3.3 or otherwise to facilitate any dividend or other return of capital to the holders of such Capital Stock (as determined in good faith by the Company);
(12) Restricted Payments that are made (a) in an amount not to exceed the amount of Excluded Contributions or (b) in an amount equal to the amount of net cash proceeds from an asset sale or disposition in respect of property or assets acquired, if the acquisition of such property or assets was financed with Excluded Contributions;
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(13) (i) the declaration and payment of dividends on Designated Preferred Stock of the Company or any of its Restricted Subsidiaries issued after the Issue Date; (ii) the declaration and payment of dividends to a Parent Entity in an amount sufficient to allow such Parent Entity to pay dividends to holders of its Designated Preferred Stock issued after the Issue Date; and (iii) the declaration and payment of dividends on Refunding Capital Stock that is Preferred Stock; provided, however, that, in the case of clause (ii), the amount of dividends paid to a Person pursuant to such clause shall not exceed the cash proceeds received by the Company or the aggregate amount contributed in cash to the equity of the Company (other than through the issuance of Disqualified Stock or an Excluded Contribution of the Company), from the issuance or sale of such Designated Preferred Stock; provided, further, in the case of clauses (i) and (iii), that for the most recently ended four fiscal quarters for which consolidated financial statements are available (which may, at the Company’s election, be internal financial statements) immediately preceding the date of issuance of such Designated Preferred Stock or declaration of such dividends on such Refunding Capital Stock, after giving effect to such payment on a pro forma basis, the Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the test set forth in Section 3.2(a);
(14) [reserved];
(15) distributions or payments of Securitization Fees, sales contributions and other transfers of Securitization Assets or Receivables Assets and purchases of Securitization Assets or Receivables Assets pursuant to a Securitization Repurchase Obligation, in each case in connection with a Qualified Securitization Financing or Receivables Facility;
(16) any Restricted Payment made in connection with the Merger or the Merger Agreement and any fees, costs and expenses (including all legal, accounting and other professional fees, costs and expenses) related thereto, including Merger Expenses, or used to fund amounts owed to Affiliates in connection with the Merger or the Merger Agreement (including dividends to any Parent Entity to permit payment by such Parent Entity of such amounts), and any Restricted Payments in respect of working capital adjustments or purchase price adjustments in connection with any Permitted Investment or to satisfy indemnity or other obligations in connection with any Permitted Investment;
(17) (i) Restricted Payments (including loans or advances) in an aggregate amount outstanding at the time made not to exceed the greater of $50.0 million and 15.0% of LTM EBITDA at such time, and (ii) any Restricted Payments, so long as (x) immediately after giving effect to any such Restricted Payment, no Default or Event of Default shall have occurred and be continuing or would result therefrom and (y) pro forma effect to the payment of any such Restricted Payment and the incurrence of any Indebtedness the net proceeds of which are used to make such Restricted Payment, the Consolidated Total Leverage Ratio (A) prior to the Merger Closing Date, shall be no greater than 2.75:1.00 and (B) on and after the Merger Closing Date, shall be no greater than 2.00:1.00;
(18) mandatory redemptions of Disqualified Stock issued as a Restricted Payment or as consideration for a Permitted Investment;
(19) (i) the redemption, defeasance, repurchase, exchange or other acquisition or retirement of Subordinated Indebtedness of the Company or any Guarantor in an aggregate amount outstanding at the time made, taken together with all other redemptions, defeasances, repurchases, exchanges or other acquisitions or retirements of Subordinated Indebtedness made pursuant to this clause, not to exceed the greater of $50.0 million and 15.0% of LTM EBITDA at such time, and (ii) the redemption, defeasance, repurchase, exchange or other acquisition or retirement of Subordinated Indebtedness of the Company or any Guarantor, so long as, (x) immediately after giving effect to any such Restricted Payment, no Default or Event of Default shall have occurred and be continuing or would result therefrom and (y) immediately after giving pro forma effect to the payment of any such Restricted Payment and the incurrence of any Indebtedness the net proceeds of which are used to make such Restricted Payment, the Consolidated Total Leverage Ratio shall be no greater than (A) prior to the Merger Closing Date, 3.75:1.00 and (B) on and after the Merger Closing Date, 2.50:1.00;
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(20) payments or distributions to dissenting stockholders pursuant to applicable law (including in connection with, or as a result of, exercise of dissenters’ or appraisal rights and the settlement of any claims or action (whether actual, contingent or potential)), pursuant to or in connection with a merger, amalgamation, consolidation or transfer of assets that complies with Section 4.1;
(21) Restricted Payments to a Parent Entity to finance Investments that would otherwise be permitted to be made pursuant to this Section 3.3 if made by the Company; provided that (a) such Restricted Payment shall be made substantially concurrently with the closing of such Investment (or any time following the closing of such Investment with respect to earn-out or similar payments), (b) such Parent Entity shall, promptly following the closing thereof, cause (1) all property acquired (whether assets or Capital Stock) to be contributed to the capital of the Company or one or more Restricted Subsidiaries or (2) the merger or amalgamation of the Person formed or acquired into the Company or one of its Restricted Subsidiaries (to the extent not prohibited by Section 4.1) to consummate such Investment, (c) such Parent Entity and its Affiliates (other than the Company or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction except to the extent the Company or a Restricted Subsidiary could have given such consideration or made such payment in compliance with this Indenture, (d) any property received by the Company shall not increase amounts available for Restricted Payments pursuant to Section 3.3(a)(ii) except to the extent the fair market value at the time of such receipt of such property exceeds the Restricted Payment made pursuant to this Section 3.3(b)(21) and (e) such Investment shall be deemed to be made by the Company or such Restricted Subsidiary pursuant to another provision of this Section 3.3 (other than pursuant to Section 3.3(b)(12)) or pursuant to the definition of “Permitted Investment” (other than pursuant to clause (12) thereof); and
(22) any Restricted Payment made in connection with a Permitted Intercompany Activity, Permitted Tax Restructuring or related transactions.
For purposes of determining compliance with this Section 3.3, in the event that a Restricted Payment or Investment (or portion thereof) meets the criteria of more than one of the categories of Permitted Payments described in Section 3.3(b), or is permitted pursuant to Section 3.3(a) and/or one or more of the clauses contained in the definition of “Permitted Investment,” the Company will be entitled to divide or classify (or later divide, classify or reclassify in whole or in part in its sole discretion) such Restricted Payment or Investment (or portion thereof) in any manner that complies with this Section 3.3, including as an Investment pursuant to one or more of the clauses contained in the definition of “Permitted Investment”; provided that if the Consolidated Total Leverage Ratio incurrence test for the incurrence of any Restricted Payment would be satisfied on a pro forma basis as of the end of any subsequent fiscal quarter after the incurrence, the reclassification discussed in this paragraph shall be deemed to have occurred automatically.
The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The fair market value of any cash Restricted Payment shall be its face amount, and the fair market value of any non-cash Restricted Payment, property or assets other than cash shall be determined conclusively by the Company acting in good faith.
In connection with any commitment, definitive agreement or similar event relating to an Investment or other Restricted Payment, the Company or the applicable Restricted Subsidiary may designate such Investment or other Restricted Payment as having occurred on the date of the commitment, definitive agreement or similar event relating thereto (such date, the “Election Date”) if, after giving pro forma effect to such Investment or other Restricted Payment and all related transactions in connection therewith and any related pro forma adjustments, the Company or any of its Restricted Subsidiaries would have been permitted to make such Investment on the relevant Election Date in compliance with this Indenture, and any related subsequent actual making of such Investment or other Restricted Payment will be deemed for all purposes under this Indenture to have been made on such Election Date, including for purposes of calculating any ratio, compliance with any test, usage of any baskets hereunder (if applicable) and Consolidated EBITDA and for purposes of determining whether there exists any Default or Event of Default (and all such calculations on and after the Election Date until the termination, expiration, passing, rescission, retraction or rescindment of such commitment, definitive agreement or similar event shall be made on a pro forma basis giving effect thereto and all related transactions in connection therewith).
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If the Company or a Restricted Subsidiary makes a Restricted Payment which at the time of the making of such Restricted Payment would in the good faith determination of the Company be permitted under the provisions of this Indenture, such Restricted Payment shall be deemed to have been made in compliance with this Indenture notwithstanding any subsequent adjustments made in good faith to the Company’s financial statements affecting Consolidated Net Income or Consolidated EBITDA of the Company for any period.
For the avoidance of doubt, this Section 3.3 shall not restrict the making of, or dividends or other distributions in amounts sufficient to make, any “AHYDO catch-up payment” in the minimum amount necessary with respect to any Indebtedness of the Company or any of its Restricted Subsidiaries permitted to be incurred under this Indenture.
Notwithstanding the foregoing, in no event shall any of the Company, AIH or any non-Guarantor Restricted Subsidiary sell, transfer or otherwise dispose (whether pursuant to a sale, lease, license, transfer, Restricted Payment described in clauses (1), (2) or (4) of the definition thereof, or otherwise or related to the exclusive rights thereto) of Material Intellectual Property (in each case other than grants of non-exclusive licenses in the ordinary course of business) to any Unrestricted Subsidiary.
Section 3.4. Limitation on Restrictions on Distributions from Restricted Subsidiaries.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary;
provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument, in each case, in effect at or entered into on the Issue Date;
(2) any encumbrance or restriction pursuant to the Note Documents;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company (as defined below), any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
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(5) any encumbrance or restriction:
(i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(ii) contained in mortgages, pledges, charges or other security agreements permitted under the Note Documents or securing Indebtedness of the Company or a Restricted Subsidiary permitted under the Note Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(iii) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice or industry norms; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under the Note Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
(7) any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice or industry norms;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be incurred or issued subsequent to the Issue Date pursuant to the provisions of Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
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(13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to the provisions of Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions, taken as a whole, contained in the Credit Agreement or the Existing Senior Secured Notes Indenture, together with the security documents associated therewith, or the Note Documents as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where, in the case of clause (ii), either (a) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any Lien permitted under Section 3.6; or
(16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) through (15) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) through (15) of this Section 3.4(b) or this clause (16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Section 3.5. Limitation on Sales of Assets and Subsidiary Stock.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap);
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition in excess of the greater of $25.0 million and 8.0% of LTM EBITDA, together with all other Asset Dispositions since the Issue Date (on a cumulative basis), (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and
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(3) within 18 months from the later of (A) the date of such Asset Disposition and (B) the receipt of the Net Available Cash from such Asset Disposition (as may be extended by an Acceptable Commitment as defined below, the “Proceeds Application Period”), an amount equal to the Net Available Cash (the “Applicable Proceeds”) is applied, to the extent the Company or any Restricted Subsidiary, as the case may be, elects:
(i) (A) to reduce, prepay, repay or purchase any Secured Pari Passu Indebtedness, including the Notes, the Existing Senior Secured Notes and the Indebtedness under the Credit Agreement (or any Refinancing Indebtedness in respect thereof), (B) to reduce, prepay, repay or purchase any other Secured Indebtedness other than Secured Pari Passu Indebtedness so long as the proceeds are with respect to assets securing such Secured Indebtedness and not constituting Collateral; (C) to reduce, prepay, repay or purchase any other Secured Indebtedness or Pari Passu Indebtedness so long as the proceeds are with respect to assets not constituting Collateral and so long as the Company ratably repays the Notes, (D) to make an offer in accordance with the procedures set forth below for an Asset Disposition Offer (whether or not accepted), to redeem Notes as described under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions, or (E) to reduce, prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (i), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of in connection with such Asset Disposition constituted “borrowing base assets”) to be reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchased;
(ii) (A) to invest (including capital expenditures) in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary); or (B) to invest (including capital expenditures) in any one or more businesses, properties or assets that replace the businesses, properties and/or assets that are the subject of such Asset Disposition, with any such investment made by way of a capital or other lease valued at the present value of the minimum amount of payments under such lease (as reasonably determined by the Company); provided, however, that a binding agreement shall be treated as a permitted application of Applicable Proceeds from the date of such commitment with the good faith expectation that an amount equal to Applicable Proceeds will be applied to satisfy such commitment within 6 months of such commitment (an “Acceptable Commitment”); provided, further, that if any Acceptable Commitment is later canceled or terminated for any reason before such amount is applied, then such Net Available Cash shall constitute Excess Proceeds; or
(iii) any combination of the foregoing;
providedthat (1) pending the final application of the amount of any such Applicable Proceeds pursuant to this Section 3.5, the Company or the applicable Restricted Subsidiaries may apply such Applicable Proceeds temporarily to reduce Indebtedness (including under the Credit Facilities) or otherwise apply such Applicable Proceeds in any manner not prohibited by this Indenture, and (2) the Company or any Restricted Subsidiary, as the case may be, may elect to invest in Additional Assets prior to receiving the Applicable Proceeds attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (ii) above with respect to such Asset Disposition.
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(b) If, with respect to any Asset Disposition, at the expiration of the Proceeds Application Period with respect to such Asset Disposition, there remains Applicable Proceeds in excess of the greater of $50.0 million and 15.0% of LTM EBITDA (such amount of Applicable Proceeds that are equal to the greater of $50.0 million and 15.0% of LTM EBITDA, “Declined Excess Proceeds,” and such amount of Applicable Proceeds that are in excess of the greater of $50.0 million and 15.0% of LTM EBITDA, “Excess Proceeds”), then subject to the limitations with respect to Foreign Dispositions set forth below, the Company shall make an offer (an “Asset Disposition Offer”) no later than ten business days after the expiration of the Proceeds Application Period to all Holders of Notes and, if required by the terms of any Secured Pari Passu Indebtedness, to all holders of such Secured Pari Passu Indebtedness or, so long as the Excess Proceeds are with respect to assets not constituting Collateral, other Pari Passu Indebtedness, to purchase the maximum principal amount of such Notes and Secured Pari Passu Indebtedness or Pari Passu Indebtedness, as applicable, on a pro rata basis, that may be purchased out of such Excess Proceeds, if any, at an offer price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or in the event such other Indebtedness was issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest, if any (or such lesser price with respect to such Secured Pari Passu Indebtedness or Pari Passu Indebtedness, as applicable, if any, as may be provided by the terms of such other Indebtedness), to, but not including, the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture and the agreement governing such Secured Pari Passu Indebtedness or Pari Passu Indebtedness, as applicable, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. Notices of an Asset Disposition Offer shall be sent by first-class mail or sent electronically, at least 10 days but not more than 60 days before the purchase date to each Holder of the Notes at such Holder’s registered address, with a copy to the Trustee, or otherwise in accordance with the applicable procedures of DTC. The Company may satisfy the foregoing obligation with respect to the Applicable Proceeds by making an Asset Disposition Offer prior to the expiration of the Proceeds Application Period (the “Advance Offer”) with respect to all or a part of the Applicable Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture.
(c) To the extent that the aggregate amount (or accreted value, as applicable) of Notes and, if applicable, any other Secured Pari Passu Indebtedness or Pari Passu Indebtedness, as applicable, validly tendered or otherwise surrendered in connection with an Asset Disposition Offer made with Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) is less than the amount offered in an Asset Disposition Offer, the Company may include any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) in Declined Excess Proceeds, and use such Declined Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of the Notes or, if applicable, Secured Pari Passu Indebtedness or Pari Passu Indebtedness, as applicable, validly tendered pursuant to any Asset Disposition Offer exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Company shall allocate the Excess Proceeds among the Notes and Secured Pari Passu Indebtedness or Pari Passu Indebtedness, as applicable, to be purchased on a pro rata basis on the basis of the aggregate principal amount (or accreted value, as applicable) of tendered Notes and Secured Pari Passu Indebtedness or Pari Passu Indebtedness, as applicable; provided that no Notes or other Secured Pari Passu Indebtedness or Pari Passu Indebtedness, as applicable, will be selected and purchased in an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Applicable Proceeds and Excess Proceeds shall be reset at zero.
(d) To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than Dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in Dollars that is actually received by the Company upon converting such portion into Dollars.
(e) Notwithstanding any other provisions of this Section 3.5, (i) to the extent that any of or all the Net Available Cash of any Asset Disposition received or deemed to be received by a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments, in each case, from being repatriated to the United States, an amount equal to the portion of such Net Available Cash so affected will not be required to be applied in compliance with this Section 3.5, so long, but only so long, as the applicable local law or regulation, applicable organizational documents or agreements or other impediments will not permit repatriation to the United States (the Company hereby agreeing to use reasonable efforts (as determined in the Company’s reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary to within one year following the date on which the respective payment would otherwise have been required, promptly take all actions reasonably required by the applicable local law or regulation, applicable organizational documents or other impediments to permit such repatriation), and if within one year following the date on which the respective payment would otherwise have been required, such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, applicable organizational impediment or other impediment, an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five (5) Business Days after such repatriation could be made) applied (net of Taxes payable or reserved against as a result thereof, to the extent not already taken into account in the definition of “Net Available Cash”) (whether or not such repatriation actually occurs) in compliance with this Section 3.5 and (ii) to the extent that the Company has determined in good faith that repatriation of, or an obligation to repatriate, any of or all the Net Available Cash of any Foreign Disposition could have a non-de minimis adverse Tax consequence (as determined by the Company), the Net Available Cash so affected will not be required to be applied in compliance with this Section 3.5 so long, but only so long, as the non-de minimis Tax consequence could result from the repatriation, or an obligation to repatriate, to the United States (the Company hereby agreeing to use reasonable efforts (as determined in the Company’s reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary to within one year following the date on which the respective payment would otherwise have been required, promptly take all actions reasonably required by the applicable local law or regulation, applicable organizational documents or other impediments to permit such repatriation), and if within one year following the date on which the respective payment would otherwise have been required, such repatriation of any of such affected Net Available Cash no longer has a non-de minimis Tax consequence, the amount of such Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation could be made) applied (net of Taxes payable or reserved against as a result thereof, to the extent not already taken into account in the definition of “Net Available Cash”) (whether or not repatriation actually occurs) in compliance with this Section 3.5. For the avoidance of doubt, nothing in this Section 3.5 shall require the Company to cause any amounts to be repatriated to the United States (whether or not such amounts are used in or excluded from the determination of the amount of any mandatory prepayments hereunder). The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default.
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(f) For the purposes of Section 3.5(a)(2), the following shall be deemed to be cash:
| (1) | the<br> assumption by the transferee of Indebtedness or other liabilities, contingent or otherwise,<br> of the Company or a Restricted Subsidiary (other than Subordinated Indebtedness of the Company<br> or a Guarantor) or the release of the Company or such Restricted Subsidiary from all liability<br> on such Indebtedness or other liability in connection with such Asset Disposition; |
|---|---|
| (2) | securities,<br> notes or other obligations received by the Company or any Restricted Subsidiary from the<br> transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash<br> Equivalents, or by their terms are required to be satisfied for cash and Cash Equivalents<br> (to the extent of the cash or Cash Equivalents received), in each case, within 180 days following<br> the closing of such Asset Disposition; |
| --- | --- |
| (3) | Indebtedness<br> of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such<br> Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are<br> released from any Guarantee of payment of such Indebtedness in connection with such Asset<br> Disposition; |
| --- | --- |
| (4) | (4)<br> consideration consisting of Indebtedness of the Company (other than Subordinated Indebtedness)<br> received after the Issue Date from Persons who are not the Company or any Restricted Subsidiary;<br> and |
| --- | --- |
| (5) | (5)<br> any Designated Non-Cash Consideration received by the Company or any Restricted Subsidiary<br> in such Asset Dispositions having an aggregate fair market value, taken together with all<br> other Designated Non-Cash Consideration received pursuant to this Section 3.5 that is at<br> that time outstanding, not to exceed the greater of $50.0 million and 15.0% of LTM EBITDA,<br> with the fair market value of each item of Designated Non-Cash Consideration being measured<br> at the time received and without giving effect to subsequent changes in value. |
| --- | --- |
(g) Upon the commencement of an Asset Disposition Offer, the Company shall send, or cause to be sent, by first class mail or electronically, a notice to the Trustee and to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Asset Disposition Offer. Any Asset Disposition Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Disposition Offer shall state:
(1) that the Asset Disposition Offer is being made pursuant to this Section 3.5 and that, to the extent lawful, all Notes properly tendered and not withdrawn shall be accepted for payment (unless prorated);
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(2) the Asset Disposition payment amount, the Asset Disposition offered price, and the date on which Notes properly tendered and accepted for payment shall be purchased, which date shall be at least 10 days and not later than 60 days from the date such notice is sent (the “Asset Sale Payment Date”);
(3) that any Notes not properly tendered or accepted for payment shall continue to accrue interest in accordance with the terms thereof;
(4) that, unless the Company defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrue interest on and after the Asset Sale Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to any Asset Disposition Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified in the notice at least three Business Days before the Asset Sale Payment Date;
(6) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than two Business Days prior to the Asset Sale Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased;
(7) that if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition payment amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000 or integral multiples of $1,000 in excess thereof shall be purchased); and
(8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry).
(h) If the Asset Sale Payment Date is on or after a record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Disposition Offer.
(i) On the Asset Sale Payment Date, the Company will, to the extent permitted by law,
(1) accept for payment all Notes issued by them or portions thereof properly tendered pursuant to the Asset Disposition Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Asset Disposition payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Company.
(j) To the extent that the provisions of any securities laws or regulations, including Rule 14e-1 under the Exchange Act, conflict with the provisions of this Indenture, the Company shall not be deemed to have breached its obligations described in this Indenture by virtue of compliance therewith. The Company may rely on any no-action letters issued by the SEC indicating that the staff of the SEC will not recommend enforcement action in the event a tender offer satisfies certain conditions.
(k) The provisions of this Indenture relative to the Company’s obligation to make an offer to repurchase the Notes as a result of an Asset Disposition may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes then outstanding.
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Notwithstanding the foregoing, in no event shall any of the Company, AIH or any non-Guarantor Restricted Subsidiary sell, transfer or otherwise dispose (whether pursuant to a sale, lease, license, transfer, Restricted Payment described in clauses (1), (2) or (4) of the definition thereof, or otherwise or related to the exclusive rights thereto) of Material Intellectual Property (in each case other than grants of non-exclusive licenses in the ordinary course of business) to any Unrestricted Subsidiary.
Section 3.6. Limitation on Liens.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create, Incur or permit to exist any Lien (each, an “Initial Lien”) that secures obligations under any Indebtedness or any related guarantee, on any asset or property of the Company or any Restricted Subsidiary, except:
(1) if such Initial Lien is a Permitted Lien; or
(2) in the case of Initial Liens on any asset or property that is not Collateral, the Notes or the Note Guarantees are equally and ratably secured, with (or on a senior basis to, in the case such Initial Lien secures any Subordinated Indebtedness), the Obligations secured by such Initial Lien until such time as such Obligations are no longer secured by a Lien,
except that the foregoing shall not apply to Liens securing the Notes (other than Additional Notes) and the related Note Guarantees.
(b) Any Lien created for the benefit of the Holders pursuant to Section 3.6(a) shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Initial Lien.
(c) For purposes of determining compliance with this Section 3.6, (i) a Lien securing an item of Indebtedness (or any portion thereof) need not be permitted solely by reference to one category of Permitted Liens (or any portion thereof) described in the definition of “Permitted Liens” but may be permitted in part under any combination thereof and (ii) in the event that a Lien securing an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of Permitted Liens (or any portion thereof) described in the definition of “Permitted Liens,” the Company may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify (as if incurred at such later time), such Lien securing such item of Indebtedness (or any portion thereof) in any manner that complies with this covenant and at the time of incurrence, division, classification or reclassification will be entitled to only include the amount and type of such Lien or such item of Indebtedness secured by such Lien (or any portion thereof) in one of the categories of Permitted Liens (or any portion thereof) described in the definition of “Permitted Liens” and, in such event, such Lien securing such item of Indebtedness (or any portion thereof) will be treated as being incurred or existing pursuant to only such clause or clauses (or any portion thereof) without giving pro forma effect to such item (or any portion thereof) when calculating the amount of Liens or Indebtedness (or any portion thereof) that may be incurred pursuant to any other clause or paragraph (or any portion thereof) at such time.
(d) With respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the Incurrence of such Indebtedness, such Lien shall also be permitted to secure any Increased Amount of such Indebtedness. The “Increased Amount” of any Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortization of original issue discount, the payment of interest in the form of additional Indebtedness with the same terms, accretion of original issue discount or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Indebtedness.
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Section 3.7. Limitation on Guarantees.
(a) The Company will not permit any of its Wholly Owned Domestic Subsidiaries that are Restricted Subsidiaries (and non-Wholly Owned Domestic Subsidiaries if such non-Wholly Owned Domestic Subsidiaries Guarantee the Credit Agreement or other capital markets debt securities of the Company or any Guarantor), other than a Guarantor, a Captive Insurance Subsidiary, a Foreign Subsidiary or a Securitization Subsidiary, to Guarantee the payment of (i) the Credit Agreement or any other Credit Facility permitted under Section 3.3(b)(1) or (ii) capital markets debt securities of the Company or any other Guarantor in an aggregate principal amount in excess of the greater of $31.0 million and 10.0% of LTM EBITDA, unless:
(1) such Restricted Subsidiary within 90 days (i) executes and delivers a supplemental indenture to this Indenture providing for a Guarantee by such Restricted Subsidiary and (ii) executes and delivers a supplement or joinder to the Collateral Documents or new Collateral Documents and takes all actions required under this Indenture and the applicable Collateral Documents to perfect the Liens created thereunder; provided that if such Indebtedness is by its express terms subordinated in right of payment to the Notes or such Guarantor’s Note Guarantee, any such Note Guarantee by such Restricted Subsidiary with respect to such Indebtedness shall be subordinated in right of payment to such Note Guarantee substantially to the same extent as such Indebtedness is subordinated to the Notes or such Guarantor’s Note Guarantee; and
(2) such Restricted Subsidiary waives and will not in any manner whatsoever claim or take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights against the Company or any other Restricted Subsidiary as a result of any payment by such Restricted Subsidiary under its Guarantee until payment in full of Obligations under this Indenture;
providedthat this Section 3.7 shall not be applicable (i) to any guarantee of any Restricted Subsidiary that existed at the time such Person became a Restricted Subsidiary and was not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary, or (ii) in the event that the Guarantee of the Company’s obligations under the Notes or this Indenture by such Subsidiary would not be permitted under applicable law.
(b) The Company shall cause Shutterstock and each of its Subsidiaries, within 20 Business Days of the Merger Closing Date, to execute and deliver to the Trustee a supplemental indenture to this Indenture in the form of Exhibit B hereto pursuant to which Shutterstock and each of its Subsidiaries shall provide a Guarantee of the Company’s obligations under the Notes and this Indenture.
(c) The Company may elect, in its sole discretion, to cause or allow, as the case may be, any Subsidiary or any of its Parent Entities that is not otherwise required to be a Guarantor to become a Guarantor, in which case, such Subsidiary or Parent Entity shall not be required to comply with the 90-day period described in Section 3.7(a) and such Guarantee may be released at any time in the Company’s sole discretion so long as any Indebtedness of such Subsidiary then outstanding could have been incurred by such Subsidiary (either (x) when so incurred or (y) at the time of the release of such Guarantee) assuming such Subsidiary were not a Guarantor at such time.
(d) If any Guarantor becomes an Immaterial Subsidiary, the Company shall have the right, by delivery of a supplemental indenture executed by the Company to the Trustee, to cause such Immaterial Subsidiary to automatically and unconditionally cease to be a Guarantor, subject to the requirement described in Section 3.7(a) that such Subsidiary shall be required to become a Guarantor if it ceases to be an Immaterial Subsidiary (except that if such Subsidiary has been properly designated as an Unrestricted Subsidiary it shall not be so required to become a Guarantor or execute a supplemental indenture); provided that such Immaterial Subsidiary shall not be permitted to Guarantee the Credit Agreement or other Indebtedness of the Company or the other Guarantors, unless it again becomes a Guarantor.
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Section 3.8. Limitation on Affiliate Transactions.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to enter into or conduct any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) involving aggregate value in excess of the greater of $15.0 million and 5.0% of LTM EBITDA unless:
(1) the terms of such Affiliate Transaction taken as a whole are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction or the execution of the agreement providing for such transaction in arm’s length dealings with a Person who is not such an Affiliate; and
(2) in the event such Affiliate Transaction involves an aggregate value in excess of the greater of $50.0 million and 15.0% of LTM EBITDA, the terms of such transaction have been approved by a majority of the members of the Board of Directors of the Company.
Any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in Section 3.8(a)(2) if such Affiliate Transaction is approved by a majority of the Disinterested Directors of the Company, if any.
(b) Section 3.8(a) shall not apply to:
(1) any Restricted Payment or other transaction permitted to be made or undertaken pursuant to Section 3.3 (including Permitted Payments) or any Permitted Investment;
(2) any issuance, transfer or sale of (A) Capital Stock, options, other equity-related interests or other securities, or other payments, awards or grants in cash, securities or otherwise to any Parent Entity, Permitted Holder or future, current or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its Subsidiaries or any of its Parent Entities and (B) directors’ qualifying shares and shares issued to foreign nationals as required under applicable law;
(3) any Management Advances and any waiver or transaction with respect thereto;
(4) (a) any transaction between or among the Company and any Restricted Subsidiary (or entity that becomes a Restricted Subsidiary as a result of such transaction), or between or among Restricted Subsidiaries and (b) any merger, amalgamation or consolidation with any Parent Entity, provided that such Parent Entity shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Company and such merger, amalgamation or consolidation is otherwise not prohibited under this Indenture;
(5) the payment of compensation, fees, costs, reimbursements and expenses to, and indemnities (including under insurance policies) and reimbursements, employment and severance arrangements, and employee benefit and pension expenses provided on behalf of, or for the benefit of, future, current or former employees, directors, officers, managers, contractors, consultants, distributors or advisors (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any Parent Entity or any Restricted Subsidiary (whether directly or indirectly and including through their Controlled Investment Affiliates or Immediate Family Members);
(6) the entry into and performance of obligations of the Company or any of the Restricted Subsidiaries under the terms of any transaction arising out of, and any payments pursuant to or for purposes of funding, any agreement or instrument in effect as of or on the Issue Date, as these agreements and instruments may be amended, modified, supplemented, extended, renewed or refinanced from time to time in accordance with the other terms of this Section 3.8 or to the extent not disadvantageous in any material respect in the reasonable determination of the Company to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date;
(7) any transaction effected as part of a Qualified Securitization Financing or Receivables Facility, or any disposition or acquisition of Securitization Assets, Receivables Assets or related assets in connection with any Qualified Securitization Financing or Receivables Facility;
(8) transactions with customers, vendors, clients, joint venture partners, suppliers, contractors, distributors or purchasers or sellers of goods or services, in each case in the ordinary course of business or consistent with past practice or industry norms, which are fair to the Company or its Restricted Subsidiaries, in the reasonable determination of the Company, or are on terms, taken as a whole, that are not materially less favorable as might reasonably have been obtained at such time from an unaffiliated party;
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(9) any transaction between or among the Company or any Restricted Subsidiary and any Person (including a joint venture or an Unrestricted Subsidiary) that is an Affiliate of the Company or an Associate or similar entity solely because the Company or a Restricted Subsidiary or any Affiliate of the Company or a Restricted Subsidiary or any Affiliate of any Permitted Holder owns an equity interest in or otherwise controls such Affiliate, Associate or similar entity;
(10) any issuance, sale or transfer of Capital Stock (other than Disqualified Stock or Designated Preferred Stock) of the Company, any Parent Entity or any of its Restricted Subsidiaries or options, warrants or other rights to acquire such Capital Stock and the granting of registration and other customary rights (and the performance of the related obligations) in connection therewith or any contribution to capital of the Company or any Restricted Subsidiary;
(11) (a) payments by the Company or any Restricted Subsidiary (or distributions or dividends by the Company in lieu of such payments) to any Permitted Holder (whether directly or indirectly), including to its Affiliates or its designees, of management, consulting, monitoring, refinancing, transaction, advisory, indemnities and other fees, costs and expenses (plus any unpaid management, consulting, monitoring, transaction, advisory, indemnities and other fees, costs and expenses accrued in any prior year) and any exit and termination fees (including any such cash lump sum or present value fee upon the consummation of a corporate event, including an initial public offering or a SPAC IPO) pursuant to any management services or similar agreements or the management services or other relevant provisions in an investor rights agreement, limited partnership agreement, limited liability company agreement or other equityholders’ agreement, as the case may be, between any Permitted Holder or certain of the management companies associated with any Permitted Holder or their advisors or Affiliates, if applicable, and the Company and/or its Parent Entities or Subsidiaries, as in effect from time to time (including any amendment thereto or replacement thereof with terms reasonably consistent with the terms of similar agreements entered into by similar advisors as reasonably determined by the Company or any Parent Entity on behalf of the Company at the time such management or similar agreement is entered into by the Permitted Holder) and (b) payments by the Company or any Restricted Subsidiary to any Permitted Holder (whether directly or indirectly, including through any Parent Entity) for financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved in the case of each of clauses (a) and (b) in the reasonable determination of the Company or do not exceed the greater of $15.0 million and 5.0% of LTM EBITDA;
(12) payment to any Permitted Holder of all out-of-pocket expenses Incurred by such Permitted Holder in connection with its direct or indirect investment in the Company and its Subsidiaries;
(13) the Merger and the payment of all fees, costs and expenses (including all legal, accounting and other professional fees, costs and expenses) associated or in connection with the Merger, including Merger Expenses;
(14) transactions in which the Company or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of Section 3.8(a)(1);
(15) the existence of, or the performance by the Company or any Restricted Subsidiary of its obligations under the terms of, any equityholders, investor rights or similar agreement (including any registration rights agreement or purchase agreements related thereto) to which it is party as of the Issue Date and any similar agreement that it (or any Parent Entity) may enter into thereafter; provided that the existence of, or the performance by the Company or any Restricted Subsidiary (or any Parent Entity) of its obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date will only be permitted under this clause to the extent that the terms of any such amendment or new agreement are not otherwise, when taken as a whole, more disadvantageous to the Holders in any material respect in the reasonable determination of the Company than those in effect on the Issue Date;
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(16) any purchases by the Company’s Affiliates of Indebtedness or Disqualified Stock of the Company or any of the Restricted Subsidiaries the majority of which Indebtedness or Disqualified Stock is purchased by Persons who are not the Company’s Affiliates; providedthat such purchases by the Company’s Affiliates are on the same terms as such purchases by such Persons who are not the Company’s Affiliates;
(17) (i) investments by Affiliates in securities or loans of the Company or any of the Restricted Subsidiaries (and payment of reasonable out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as the investment is being offered by the Company or such Restricted Subsidiary generally to other non-affiliated third-party investors on the same or more favorable terms and (ii) payments to Affiliates in respect of securities or loans of the Company or any of the Restricted Subsidiaries contemplated in the foregoing subclause (i) or that were acquired from Persons other than the Company and its Restricted Subsidiaries, in each case, in accordance with the terms of such securities or loans;
(18) payments by the Company and its Restricted Subsidiaries pursuant to any tax sharing agreements among any Parent Entity, the Company and its Restricted Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Company and its Subsidiaries; provided that in each case the aggregate amount of such payments to any Parent Entity with respect to any taxable year does not exceed the amount that the Company and its Restricted Subsidiaries would be permitted to pay under Section 3.3(b)(9)(i);
(19) payments, Indebtedness and Disqualified Stock (and cancellation of any thereof) of the Company and its Restricted Subsidiaries and Preferred Stock (and cancellation of any thereof) of any Restricted Subsidiary to any future, current or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its Subsidiaries or any of its Parent Entities pursuant to any management equity plan, stock option plan, phantom equity plan or any other management, employee benefit or other compensatory plan or agreement (and any successor plans or arrangements thereto), employment, termination or severance agreement, or any stock subscription or equityholder agreement with any such employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) that are, in each case, approved by the Company in good faith;
(20) any management equity plan, stock option plan, phantom equity plan or any other management, employee benefit or other compensatory plan or agreement (and any successor plans or arrangements thereto), employment, termination or severance agreement, or any stock subscription or equityholder agreement between the Company or its Restricted Subsidiaries and any distributor, employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) approved by the reasonable determination of the Company or entered into in connection with the Merger;
(21) any transition services arrangement, supply arrangement or similar arrangement entered into in connection with or in contemplation of the disposition of assets or Capital Stock in any Restricted Subsidiary permitted under Section 3.5 or entered into with any Business Successor, in each case, that the Company determines in good faith is either fair to the Company or otherwise on customary terms for such type of arrangements in connection with similar transactions;
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(22) transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to the day such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary under Section 3.19 and pledges of Capital Stock of Unrestricted Subsidiaries;
(23) (i) any lease entered into between the Company or any Restricted Subsidiary, as lessee, and any Affiliate of the Company, as lessor and (ii) any operational services or other arrangement entered into between the Company or any Restricted Subsidiary and any Affiliate of the Company, in each case, which is approved as being on arm’s length terms by the reasonable determination of the Company;
(24) intellectual property licenses and research and development agreements in the ordinary course of business or consistent with past practice or industry norms;
(25) payments to or from, and transactions with, any Subsidiary or any joint venture in the ordinary course of business or consistent with past practice or industry norms (including any cash management arrangements or activities related thereto);
(26) the payment of fees, costs and expenses related to registration rights and indemnities provided to equityholders pursuant to equityholders, investor rights, registration rights or similar agreements;
(27) transactions undertaken in the ordinary course of business or consistent with past practice or industry norms pursuant to membership in a purchasing consortium;
(28) Permitted Intercompany Activities, Permitted Tax Restructurings, Intercompany License Agreements or related transactions; and
(29) with respect to any of the foregoing transactions permitted pursuant to this Section 3.8, any amendment, extension, renewal, modification or replacement of any such arrangement or agreement (so long as any such amendment, extension, renewal, modification or replacement is not adverse in any material respect when taken as a whole to the Holders in the good faith judgment of the Company taken as a whole).
In addition, if the Company or any of its Restricted Subsidiaries (i) purchases or otherwise acquires assets or properties from a Person which is not an Affiliate, the purchase or acquisition by an Affiliate of the Company of an interest in all or a portion of the assets or properties acquired shall not be deemed an Affiliate Transaction (or cause such purchase or acquisition by the Company or a Restricted Subsidiary to be deemed an Affiliate Transaction) or (ii) sells or otherwise disposes of assets or other properties to a Person who is not an Affiliate, the sale or other disposition by an Affiliate of the Company of an interest in all or a portion of the assets or properties sold shall not be deemed an Affiliate Transaction (or cause such sale or other disposition by the Company or a Restricted Subsidiary to be deemed an Affiliate Transaction).
Notwithstanding the foregoing, in no event shall any of the Company, AIH or any non-Guarantor Restricted Subsidiary sell, transfer or otherwise dispose (whether pursuant to a sale, lease, license, transfer, Restricted Payment described in clauses (1), (2) or (4) of the definition thereof, or otherwise or related to the exclusive rights thereto) of Material Intellectual Property (in each case other than grants of non-exclusive licenses in the ordinary course of business) to any Unrestricted Subsidiary.
Section 3.9. Change of Control.
(a) If a Change of Control occurs, unless a third party makes a Change of Control Offer or the Company has previously or substantially concurrently therewith delivered a redemption notice with respect to all the outstanding Notes as described under Section 5.7, the Company shall make an offer to purchase all of the Notes pursuant to the offer described in this Section 3.9 (the “Change of Control Offer”) at a price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to but excluding the date of repurchase; provided that if the repurchase date is on or after the record date and on or before the corresponding interest payment date, then Holders in whose names the Notes are registered at the close of business on such record date will receive the interest due on the repurchase date. Within 30 days following any Change of Control, the Company will deliver or cause to be delivered a notice of such Change of Control Offer electronically in accordance with the applicable procedures of DTC or by first-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC describing the transaction or transactions that constitute the Change of Control and with the following information:
(1) that a Change of Control Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Company;
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(2) the purchase price and the purchase date, which date will be no earlier than 10 days nor later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice, except in the case of a conditional Change of Control Offer made in advance of a Change of Control as described in clause (8) below (the “Change of Control Payment Date”);
(3) that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest, on the Change of Control Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date or otherwise comply with DTC procedures;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Company to purchase such Notes; providedthat the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased or otherwise comply with DTC procedures;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000;
(8) if such notice is delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(9) the other instructions, as determined by the Company, consistent with this Section 3.9, that a Holder must follow.
The Paying Agent will promptly deliver to each Holder of the Notes tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
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If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid on the relevant interest payment date to the Person in whose name a Note is registered at the close of business on such record date.
(b) On the Change of Control Payment Date, the Company will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Company.
(c) The Company will not be required to make a Change of Control Offer following a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer or (2) a notice of redemption of all outstanding Notes has been given pursuant to this Indenture as described under Section 5.7, unless and until there is a default in the payment of the redemption price on the applicable Redemption Date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied. Notwithstanding anything to the contrary in this Section 3.9, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control.
(d) [Reserved].
(e) To the extent that the provisions of any securities laws, rules or regulations, including Rule 14e-1 under the Exchange Act, conflict with the provisions of this Indenture, the Company shall not be deemed to have breached its obligations described in this Indenture by virtue of compliance therewith. The Company may rely on any no-action letters issued by the SEC indicating that the staff of the SEC will not recommend enforcement action in the event a tender offer satisfies certain conditions.
(f) The provisions of this Indenture related to the Company’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding.
Section 3.10. Reports.
(a) So long as any Notes are outstanding, the Company will furnish to the Trustee, within 15 days after the time frames specified in the rules and regulations of the SEC for a non-accelerated filer (including any available grace periods):
(1) all financial information that would be required to be contained in an annual report on Form 10-K, or any successor or comparable form, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and a report on the annual financial statements by the Company’s independent auditors;
(2) all financial information that would be required to be contained in a quarterly report on Form 10-Q, or any successor or comparable form, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and financial statements prepared in accordance with GAAP; and
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(3) promptly (and not required to be sooner than the filing deadlines applied to current reports on Form 8-K) after the occurrence of any of the following events, all current reports that would be required to be filed with the SEC on Form 8-K as in effect on the Issue Date (if the Company had been a reporting company under Section 15(d) of the Exchange Act); provided that the foregoing shall not obligate the Company to make available (i) any information regarding the occurrence of any of the following events if the Company determines in its reasonable determination that such event that would otherwise be required to be disclosed is not material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries taken as a whole, (ii) an exhibit or a summary of the terms of, any employment or compensatory arrangement, agreement, plan or understanding between the Company or any of its Subsidiaries and any director, officer or manager of the Company or any of its Subsidiaries, (iii) copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a current report on Form 8-K or (iv) any trade secrets, privileged or confidential information obtained from another Person and competitively sensitive information:
| (a) | the entry into or termination of material agreements; |
|---|---|
| (b) | significant acquisitions or dispositions (which shall only be with respect to acquisitions or dispositions that are significant pursuant<br>to the definition of “Significant Subsidiary”); |
| --- | --- |
| (c) | bankruptcy; |
| --- | --- |
| (d) | cross-default under direct material financial obligations; |
| --- | --- |
| (e) | a change in the Company’s certifying independent auditor; |
| --- | --- |
| (f) | the appointment or departure of directors or executive officers (with respect to the principal executive officer, president, principal<br>financial officer, principal accounting officer and principal operating officer only); |
| --- | --- |
| (g) | non-reliance on previously issued financial statements; and |
| --- | --- |
| (h) | change of control transactions, |
| --- | --- |
in each case, in a manner that complies in all material respects with the requirements specified in such form, except as described in this Section 3.10 and subject to exceptions consistent with the presentation of information in the Offering Memorandum; provided, however, that the Company shall not be required to provide (i) segment reporting and disclosure (including any required by FASB Accounting Standards Codification Topic 280), (ii) separate financial statements or other information contemplated by Rules 3-05, 3-09, 3-10, 3-16 or 4-08 of Regulation S-X (or any successor provisions) or any schedules required by Regulation S-X, (iii) information required by Regulation G under the Exchange Act or Item 10, Item 302, Item 402 or Item 601 of Regulation S-K (or any successor provision), (iv) XBRL exhibits, (v) earnings per share information, (vi) information regarding executive compensation and related party disclosure related to SEC Release Nos. 33-8732A, 34-54302A and IC-27444A and (vii) other information customarily excluded from an offering memorandum, including any information that is not otherwise of the type and form currently included in the Offering Memorandum relating to the Notes. In addition, notwithstanding the foregoing, the Company will not be required to (i) comply with Sections 302, 906 and 404 of the Sarbanes-Oxley Act of 2002, as amended, or (ii) otherwise furnish any information, certificates or reports required by Items 307 or 308 of Regulation S-K (or any successor provision). To the extent any such information is not so filed or furnished, as applicable, within the time periods specified above and such information is subsequently filed or furnished, as applicable, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default with respect thereto shall be deemed to have been cured. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding during any period when it is not subject to Section 13 or 15(d) of the Exchange Act, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3-2(b) under the Exchange Act, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
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(b) Substantially concurrently with the furnishing or making such information available to the Trustee pursuant to Section 3.10(a), the Company shall also use its commercially reasonable efforts to post copies of such information required by Section 3.10(a) on a website (which may be nonpublic, require a confidentiality acknowledgment and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective investors in the Notes (which prospective investors shall be limited to “qualifiedinstitutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), and securities analysts (to the extent providing analysis of an investment in the Notes) and market making financial institutions that are reasonably satisfactory to the Company who agree to treat such information and reports as confidential; provided that the Company may deny access to any competitively sensitive information and reports otherwise to be provided pursuant to this Section 3.10(b) to any Holder, bona fide prospective investors, security analyst or market maker that is a competitor of the Company and its Subsidiaries to the extent that the Company determines in good faith that the provision of such information and reports to such Person would be competitively harmful to the Company and its Subsidiaries. The Company may condition the delivery of any such reports to such Holders, prospective investors in the Notes and securities analysts and market making financial institutions on the agreement of such Persons to (i) treat all such reports (and the information contained therein) and information as confidential, (ii) not use such reports (and the information contained therein) and information for any purpose other than their investment or potential investment in the Notes and (iii) not publicly disclose any such reports (and the information contained therein) and information.
(c) The Company will participate in quarterly conference calls (which may be a single conference call together with investors and lenders holding other securities or Indebtedness of the Company, its Restricted Subsidiaries and/or any Parent Entity) to discuss results of operations. The conference calls will be held following the last day of each fiscal quarter of the Company and not later than 20 Business Days after the Company distributes the financial information as set forth in Section 3.10(a). No fewer than two days prior to each conference call, the Company will issue a press release or otherwise announce the time and date of such conference call (which may be made available on a nonpublic website as described in Section 3.10(b)) and providing instructions for Holders, prospective investors in the Notes, securities analysts and market making financial institutions to obtain access to such call.
(d) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, taken as a whole, hold in the aggregate more than 5.0% of the Total Assets of the Company (calculated for the Company and all of its Subsidiaries, not just Restricted Subsidiaries) for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available, then the annual and quarterly financial information required by Section 3.10(a)(1) or (2) will include in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or other comparable section a presentation of selected financial metrics (such financial metrics to be determined in the Company’s sole discretion) of such Unrestricted Subsidiaries as a group.
(e) Notwithstanding anything to the contrary set forth herein, the Company shall be deemed to have satisfied its obligations in this Section 3.10 with respect to financial information relating to the Company by furnishing financial information relating to any Parent Entity; provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such Parent Entity (and other Parent Entities included in such information, if any), on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand. For the avoidance of doubt, the consolidating information referred to in the proviso in the preceding sentence need not be audited.
(f) Notwithstanding anything to the contrary set forth herein, if the Company or any Parent Entity has furnished the Holders of Notes or filed with the SEC the reports described in the preceding clauses of this Section 3.10 with respect to the Company or any Parent Entity, the Company shall be deemed to be in compliance with the provisions of this Section 3.10.
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(g) Delivery of reports, information and documents to the Trustee under this Indenture is for informational purposes only and the information and Trustee’s receipt of the foregoing shall not constitute actual or constructive notice of any information contained therein, or determinable from information contained therein including the Company’s compliance with any of its covenants (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate). The Trustee shall have no duty to review or analyze reports delivered to it.
Section 3.11. Maintenance of Office or Agency.
The Company will maintain an office or agency where the Notes will be payable and where, if applicable, the Notes may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The corporate trust office of the Trustee, which initially shall be located at U.S. Bank Trust Company, National Association, 100 Wall St Ste 600, New York, NY 10005, Attention: Global Corporate Trust, shall be such office or agency of the Company unless the Company shall designate and maintain some other office or agency for one or more of such purposes. The Company will give prompt written notice to the Trustee of any change in the location of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations and surrenders may be made or served at the corporate trust office of the Trustee, and the Company hereby appoint the Trustee as its agent to receive all such presentations and surrenders.
The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind any such designation. The Company will give prompt written notice to the Trustee of any such designation or rescission and any change in the location of any such other office or agency. No office of the Trustee shall be an office or agency of the Company for service of process on the Company or any Guarantors, which office or agency is as set forth in Section 14.1.
Section 3.12. Existence. Except as otherwise provided in this Article III, Article IV and Section 10.2(b) and subject to the ability of the Company or any Restricted Subsidiary to convert (or similar action) to another form of legal entity under the laws of the jurisdiction under which the Company or such Restricted Subsidiary then exists, and except in connection with the Transactions, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect their existence and the corporate, partnership, limited liability company or other existence of each Restricted Subsidiary and the rights (charter and statutory), licenses and franchises of the Company and each Restricted Subsidiary; provided, however, that the Company shall not be required to preserve any such right, license or franchise or the corporate, partnership, limited liability company or other existence of any Restricted Subsidiary if the respective Board of Directors or, with respect to a Restricted Subsidiary that is not a Significant Subsidiary (or group of Restricted Subsidiaries that taken together would not be a Significant Subsidiary), any Officer of the Company determines that the preservation thereof is no longer necessary or desirable in the conduct of the business of the Company and each of the Restricted Subsidiaries, taken as a whole, and that the loss thereof is not, and will not be, disadvantageous in any material respect to the Holders.
Section 3.13. Permitted Activities of the Parent Guarantors.
(a) Midco shall not conduct, transact or otherwise engage in any material business or operations; provided, that the following shall be permitted in any event: (i) its ownership of the Equity Interests of AIH and activities incidental thereto; (ii) the entry into, and the performance of its obligations with respect to, the Note Documents or documentation relating to other Indebtedness, and other agreements contemplated hereby and thereby; (iii) the consummation of the Merger; (iv) the payment of dividends and distributions, the making of contributions to the capital of its Subsidiaries, the Guarantee of Indebtedness not prohibited from being incurred hereunder by AIH, the Company or any of its Restricted Subsidiaries and other transactions not prohibited by this Indenture; (v) the maintenance of its legal existence (including the ability to incur fees, costs and expenses relating to such maintenance and performance of activities relating to its officers, directors, managers, employees, consultants and independent contractors and those of its Subsidiaries); (vi) the performing of its obligations with respect to the organizational documents of any Parent Entity and any indemnification agreement and the other agreements or activities contemplated thereby; (vii) the performing of activities in preparation for and consummating any public offering of its common stock or any other issuance or sale of its Equity Interests (other than Disqualified Stock); (viii) the participation in tax, accounting and other administrative matters as a member of the consolidated group of Midco or any other Parent Entity and AIH, including compliance with applicable Laws and legal, tax and accounting matters related thereto and activities relating to its officers, directors, managers, employees, consultants and independent contractors; (ix) the holding of any cash and Cash Equivalents (but not operating any property); (x) the entry into, and performance of its obligations with respect to, contracts and other arrangements with officers, managers, employees, consultants, independent contractors and directors of Midco or any of its Subsidiaries or any Parent Entity relating to their employment or directorships (including the providing of indemnification to such Persons) and (xi) any activities incidental to the foregoing. Midco shall not create, incur, assume or suffer to exist any Lien on any Equity Interests of AIH (other than Liens pursuant to any (x) Note Document, (y) any agreement or instrument governing Indebtedness that is permitted under Section 3.2 or (z) non-consensual Liens arising solely by operation of Law) and shall not incur any Indebtedness (other than in respect of Disqualified Stock or Guarantees permitted by clause (iv) above). Notwithstanding the foregoing, this Section 3.13 shall not prevent any merger of Midco and Griffey Holdings, Inc.
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(b) AIH shall not conduct, transact or otherwise engage in any material business or operations; provided, that the following shall be permitted in any event: (i) its direct ownership of the Equity Interests of the Company and activities incidental thereto; (ii) the entry into, and the performance of its obligations with respect to, the Note Documents or documentation relating to other Indebtedness, and other agreements contemplated hereby and thereby; (iii) the consummation of the Merger; (iv) the payment of dividends and distributions, the making of contributions to the capital of its Subsidiaries, the Guarantee of Indebtedness not prohibited from being incurred under this Indenture by the Company or any of its Restricted Subsidiaries, the incurrence of Indebtedness under this Indenture or other Indebtedness permitted to be incurred under this Indenture by the Company or any of its Restricted Subsidiaries and other transactions not prohibited by this Indenture; (v) the maintenance of its legal existence (including the ability to incur fees, costs and expenses relating to such maintenance and performance of activities relating to its officers, directors, managers, employees and those of its Subsidiaries); (vi) the performing of its obligations with respect to the organizational documents of a Parent Entity and any indemnification agreement and the other agreements or activities contemplated thereby; (vii) the performing of activities in preparation for and consummating any public offering of its common stock or any other issuance or sale of its Equity Interests (other than Disqualified Stock); (viii) the participation in tax, accounting and other administrative matters as a member of the consolidated group of AIH or any other Parent Entity and the Company, including compliance with applicable Laws and legal, tax and accounting matters related thereto and activities relating to its officers, directors, managers, employees and those of its Subsidiaries, (ix) the holding of any cash and Cash Equivalents (but not operating any property); (x) the entry into, and performance of its obligations with respect to, contracts and other arrangements with officers, managers, employees, consultants, independent contractors and directors of AIH or any of its Subsidiaries or any Parent Entity relating to their employment or directorships (including the providing of indemnification to such Persons) and (xi) any activities incidental to the foregoing. Notwithstanding the foregoing, this Section 3.13 shall not prevent any merger of AIH and the Company, and this Section 3.13 shall cease to apply and terminate in the event of any such merger.
Section 3.14. Priming Financing/Liability Management Transaction.
(a) The Company shall not, nor shall it permit any Restricted Subsidiary to, enter into or effect any Priming Financing/Liability Management Transaction.
Section 3.15. Compliance Certificate. The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, an Officer’s Certificate, the signers of which shall be the President or any Vice President of the Company, stating that in the course of the performance by the signer of his or her duties as an Officer thereof, he or she would normally have knowledge of any Default or Event of Default and whether or not the signer knows of any Default or Event of Default that occurred during the previous fiscal year; provided that no such Officer’s Certificate shall be required for any fiscal year ended prior to the Issue Date. If such Officer does have such knowledge, the certificate shall describe the Default or Event of Default, its status and the action the Company are taking or proposes to take with respect thereto.
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Section 3.16. Amendments to Option Agreement.
The Company shall not, nor shall it permit any Restricted Subsidiary to, amend, modify or change any term or condition of the Option Agreement in any manner that is, taken as a whole, materially adverse to the interests of the Notes Secured Parties.
Section
3.17.
Statement by Officers as to Default. The Company shall deliver to the Trustee, within 30 days after the Company becomes aware of
the occurrence of any Default or Event of Default (unless such Default or Event of Default shall have been cured or waived prior to the
expiration of such 30-day period), an Officer’s Certificate setting forth the details of such Event of Default or Default, its status
and the actions which the Company are taking or proposes to take with respect thereto.
Section 3.18. Suspension of Certain Covenants on Achievement of Investment Grade Status. (a)Following the first day: (1) the Notes have achieved Investment Grade Status; and (2) no Default or Event of Default has occurred and is continuing under this Indenture, then, beginning on that day and continuing until the Reversion Date, the Company and its Restricted Subsidiaries will not be subject to Section 3.2, Section 3.3, Section 3.4, Section 3.5, Section 3.7, Section 3.8 and Section 4.1(a)(3) (collectively, the “Suspended Covenants”).
(b) If at any time the Notes cease to have such Investment Grade Status, then the Suspended Covenants will thereafter be reinstated as if such covenants had never been suspended (the “Reversion Date”) and be applicable pursuant to the terms of this Indenture (including in connection with performing any calculation or assessment to determine compliance with the terms of this Indenture), unless and until the Notes subsequently attain Investment Grade Status and no Default or Event of Default is in existence (in which event the Suspended Covenants shall no longer be in effect for such time that the Notes maintain an Investment Grade Status); provided, however, that no Default, Event of Default or breach of any kind shall be deemed to exist under this Indenture, the Notes or the Note Guarantees with respect to the Suspended Covenants based on, and none of the Company or any of its Subsidiaries shall bear any liability for, any actions taken or events occurring during the Suspension Period, or any actions taken at any time pursuant to any contractual obligation arising prior to the Reversion Date, regardless of whether such actions or events would have been permitted if the applicable Suspended Covenants remained in effect during such period. The period of time between the date of suspension of the covenants and the Reversion Date is referred to as the “Suspension Period.” The Company shall not be permitted to designate any Unrestricted Subsidiary for the applicable series of Notes during a Suspension Period unless such designation would be permitted if the Suspension Period was not in effect.
(c) On the Reversion Date, all Indebtedness Incurred during the Suspension Period will be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under Section 3.2(b)(4)(ii). On and after the Reversion Date, all Liens created during the Suspension Period will be considered Permitted Liens pursuant to clause (11) of such definition. Restricted Payments made during the Suspension Period will not reduce the amount available to be made as Restricted Payments under Section 3.3(a). On the Reversion Date, the amount of Excess Proceeds shall be reset at zero. Any Affiliate Transaction entered into after the Reversion Date pursuant to an agreement entered into during any Suspension Period will be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under Section 3.8(b)(6). Any encumbrance or restriction on the ability of any Restricted Subsidiary to take any action described in Section 3.4(a)(1) through Section 3.4(a)(3) that becomes effective during the Suspension Period will be deemed to have existed on the Issue Date, so that it is classified as permitted under Section 3.4(b)(1). In addition, any future obligation to grant further Note Guarantees shall be released. All such obligations to grant Guarantees shall be reinstated upon the Reversion Date. No Default or Event of Default will be deemed to have occurred on the Reversion Date as a result of any actions taken by the Company or its Restricted Subsidiaries during the Suspension Period so long as such actions were permitted when taken.
(d) On and after each Reversion Date, the Company and its Subsidiaries will be permitted to consummate the transactions contemplated by any contract entered into during the Suspension Period, so long as such contract and such consummation would have been permitted during such Suspension Period. There can be no assurance that the Notes will ever achieve or maintain Investment Grade Status.
(e) The Trustee shall have no duty to monitor the ratings of the Notes, shall not be deemed to have any knowledge of the ratings of the Notes and shall have no duty to notify Holders if the Notes achieve Investment Grade Status or of the occurrence of a Reversion Date.
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Section 3.19. Designation of Restricted and Unrestricted Subsidiaries.
(a) The Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if no Default or Event of Default would be in existence following such designation; provided that, notwithstanding anything to the contrary herein, no Subsidiary may be designated as an Unrestricted Subsidiary if such Subsidiary owns or exclusively licenses any Material Intellectual Property at the time of designation. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate fair market value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments pursuant to Section 3.3 or under one or more clauses of the definition of Permitted Investments, as determined by the Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by delivering to the Trustee an Officer’s Certificate certifying that such designation complies with the preceding conditions and was not prohibited by Section 3.3. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture, and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 3.2 the Company will be in default of Section 3.2.
(c) The Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 3.2 (including pursuant Section 3.2(b)(5) treating such redesignation as an acquisition for the purpose of such Section 3.2(b)(5)) and Section 3.6 calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable reference period; and (2) no Default or Event of Default would be in existence following such designation. Any such designation by the Company shall be evidenced to the Trustee by delivering to the Trustee an Officer’s Certificate certifying that such designation complies with the preceding conditions.
Section 3.20. After Acquired Property; Further Assurances.
(a) Subject to the limitations and exceptions of this Indenture, the Collateral Documents, the First Lien Intercreditor Agreement and any other Intercreditor Agreement, from and after the Issue Date, upon the acquisition by the Company or any Guarantor of any property or assets constituting Collateral or upon a Restricted Subsidiary (including a newly created or acquired one) becoming a Guarantor, then the Company or such Guarantor shall within the time periods specified in the applicable Collateral Documents (or, in the case of Material Real Properties, 90 days) (subject, in each case, to any extensions agreed by each then existing Credit Agreement Agent pursuant to each then outstanding Credit Agreement) execute and deliver such mortgages (including Mortgages (solely in the case of Material Real Properties)), deeds of trust, security instruments (including supplements to any applicable Collateral Document), financing statements, certificates and opinions of counsel as shall be necessary to vest in the Notes Collateral Agent a perfected security interest, subject only to Permitted Liens, in such property or assets constituting Collateral.
(b) With respect to any Collateral constituting Material Real Property (that is not Excluded Property) acquired after the Issue Date, to the extent likewise provided with respect to the Credit Agreement, the Company or the applicable Guarantor shall provide title reports, fully paid American Land Title Association Lender’s Extended Coverage pro forma title insurance policies or the equivalent or other form available in the applicable jurisdiction in form and substance, with endorsements and in an amount consistent with the corresponding endorsement in respect of the Credit Agreement and American Land Title Association/American Congress on Surveying and Mapping form surveys in form and substance reasonably acceptable to the Credit Agreement Agent.
(c) On or following the Issue Date and subject to the First Lien Intercreditor Agreement, the perfection exceptions set forth in the Collateral Documents and any other applicable limitations, promptly following written request of the Notes Collateral Agent, the Company and the Guarantors shall (i) correct any material defect or error that may be discovered in the execution, acknowledgment, filing or recordation of any Note Document or any other document or instrument relating to any Collateral and (ii) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as required from time to time in order to grant, preserve, protect and perfect the validity and priority of the security interests created or intended to be created by the Collateral Documents (it being understood that the Notes Collateral Agent has no duty to make any such request). Notwithstanding anything to the contrary in any Note Documents, neither the Company nor any other Guarantor shall be required to make any filings or take any other actions to perfect, evidence or create the Lien on and security interest in any intellectual property except for filings in the United States Patent and Trademark Office or the United States Copyright Office and the filing of UCC financing statements.
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Article IV SUCCESSOR COMPANY; SUCCESSOR PERSON
Section 4.1. Merger, Amalgamation and Consolidation.
(a) The Company will not consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets, in one transaction or a series of related transactions, to any Person, unless:
(1) the Company is the surviving Person or the resulting, surviving or transferee Person (the “Successor Company”) will be a Person organized or existing under the laws of the jurisdiction of the Company or the United States of America, any State of the United States or the District of Columbia and the Successor Company (if not the Company) will expressly assume all the obligations of the Company under the Notes, this Indenture and the Collateral Documents pursuant to supplemental indentures or other documents and instruments;
(2) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the applicable Successor Company or any Subsidiary of the applicable Successor Company as a result of such transaction as having been Incurred by the applicable Successor Company or such Subsidiary at the time of such transaction), no Event of Default shall have occurred and be continuing;
(3) immediately after giving pro forma effect to such transaction, either (i) the applicable Successor Company or the Company would be able to incur at least an additional $1.00 of Indebtedness pursuant to Section 3.2(a) or (ii) the Consolidated Total Leverage Ratio of the Company and its Restricted Subsidiaries would not be higher than it was immediately prior to giving effect to such transaction; and
(4) the Company shall have delivered to the Trustee and the Notes Collateral Agent an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture and an Opinion of Counsel stating that such supplemental indenture (if any) is a legal and binding agreement enforceable against the Successor Company; provided that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of Section 4.1(a)(2) and (3).
(b) [Reserved].
(c) The Successor Company will succeed to, and be substituted for, and may exercise every right and power of, the Company under the Note Documents, and the Company will automatically and unconditionally be released and discharged from its obligations under the Note Documents.
(d) [Reserved].
(e) Notwithstanding any other provision of this Section 4.1, (i) the Company may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to a Guarantor, (ii) the Company may consolidate or otherwise combine with or merge into an Affiliate that is (A) organized or existing under the laws of the jurisdiction of the Company or the United States of America, any State of the United States or the District of Columbia or (B) incorporated or organized for the purpose of changing the legal domicile of the Company, reincorporating the Company in another jurisdiction, or changing the legal form of the Company, (iii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to the Company or a Guarantor and (iv) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary.
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(f) The foregoing provisions (other than the requirements of Section 4.1(a)(2) shall not apply to the creation of a new Subsidiary as a Restricted Subsidiary).
(g) [Reserved].
(h) Subject to certain limitations described in this Indenture governing release of a Guarantee upon the sale, disposition or transfer of a Guarantor, no Guarantor shall consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets, in one or a series of related transactions, to any Person, unless:
(1) the other Person is the Company or any Restricted Subsidiary that is a Guarantor or becomes a Guarantor concurrently with the transaction; or
(2) (A) either (x) the Company or a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes all the obligations of the Guarantor under its Note Guarantee, this Indenture and the Collateral Documents; and
(B) immediately after giving effect to the transaction, no Event of Default shall have occurred and be continuing; or
(3) the transaction constitutes a sale, disposition or transfer of the Guarantor or the conveyance, transfer or lease of all or substantially all of the assets of the Guarantor (in each case other than to the Company or a Restricted Subsidiary) otherwise not prohibited by this Indenture.
(i) Notwithstanding any other provision of this Section 4.1, any Guarantor may (a) consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to another Guarantor or the Company, (b) consolidate or otherwise combine with or merge into an Affiliate (i) organized or existing under the laws of the jurisdiction of the Company or the United States of America, any State of the United States or the District of Columbia or (ii) incorporated or organized for the purpose of changing the legal domicile of the Guarantor, reincorporating the Guarantor in another jurisdiction, or changing the legal form of the Guarantor, (c) convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of such Guarantor, (d) liquidate or dissolve or change its legal form if the Company determines in good faith that such action is in the best interests of the Company and (e) engage in any Permitted Tax Restructuring. Notwithstanding anything to the contrary in this Section 4.1, the Company may contribute Capital Stock of any or all of its Subsidiaries to any Guarantor.
(j) [Reserved].
(k) Any reference herein to a merger, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, limited partnership or trust, or an allocation of assets to a series of a limited liability company, limited partnership or trust (or the unwinding of such a division or allocation), as if it were a merger, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company, limited partnership or trust shall constitute a separate Person hereunder (and each division of any limited liability company, limited partnership or trust that is a Subsidiary, Restricted Subsidiary, Unrestricted Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
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Article V REDEMPTION OF SECURITIES
Section 5.1. Notices and Opinions to Trustee.
(a) If the Company elect to redeem Notes pursuant to the optional redemption provisions of Section 5.7, the Company must furnish to the Trustee, at least 10 days but not more than 60 days before a Redemption Date, an Officer’s Certificate setting forth:
(1) the clause of this Indenture pursuant to which the redemption shall occur;
(2) the Redemption Date;
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
Any optional redemption referenced in such Officer’s Certificate may be canceled by the Company at any time prior to notice of redemption being sent to any Holder and thereafter shall be null and void.
(b) The Trustee will accept, and shall be entitled to rely on, such Officer’s Certificate as sufficient evidence of the satisfaction of the conditions precedent to such redemption, without further inquiry, in which event it will be conclusive and binding on the Holders.
Section 5.2. Selection of Notes to Be Redeemed or Purchased. If less than all of the Notes are to be redeemed at any time, the Trustee will select the Notes for redemption in compliance with the requirements of the principal securities exchange, if any, on which such Notes are listed, as certified to the Trustee by the Company, and in compliance with the requirements of DTC, or if the Notes are not so listed or such exchange prescribes no method of selection and such Notes are not held through DTC or DTC prescribes no method of selection, the Trustee will select by lot or 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 Note of $2,000 in aggregate principal amount or less shall be redeemed in part.
Section 5.3. Notice of Redemption.
(a) At least 10 days but not more than 60 days before a Redemption Date (or such shorter period as is specified solely in respect of any Special Mandatory Redemption), the Company will send or cause to be sent, by electronic delivery or, at the Company’s option, by first class mail postage prepaid, a notice of redemption to each Holder (with a copy to the Trustee) 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 DTC, with a copy to the Trustee, 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 defeasance of the Notes or a satisfaction and discharge of this Indenture pursuant to Article VIII or Article XI hereof.
(b) The notice will identify the Notes (including the CUSIP or ISIN number) to be redeemed and will state:
(1) the Redemption Date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the Redemption Date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued upon cancellation of the original Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;
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(6) that, unless the Company defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the Redemption Date;
(7) the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or accuracy of the CUSIP or ISIN number, if any, listed in such notice or printed on the Notes; and
(9) if such redemption or notice is subject to satisfaction of one or more conditions precedent, such notice shall state that, in the Company’s discretion, the Redemption Date may be delayed until such time as any or all such conditions shall be satisfied (or waived by the Company in its sole discretion), or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied (or waived by the Company in its sole discretion) by the Redemption Date or by the Redemption Date so delayed.
(c) If any Note is to be redeemed in part only, the notice of redemption that relates to that Note shall state the portion of the principal amount thereof to be redeemed, in which case a portion of the original Note will be issued in the name of the Holder thereof upon cancellation of the original Note. In the case of a Global Note, an appropriate notation will be made on such Note 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 Company defaults in the payment of the redemption price, interest ceases to accrue on Notes or portions of them called for redemption.
(d) At the Company’s request, the Trustee will give the notice of redemption in the Company’s name and at their expense; provided, however, that the Company has delivered to the Trustee, at least five Business Days (or such shorter period as may be agreed to in writing by the Trustee) before notice of redemption is required to be sent or caused to be sent to Holders pursuant to this Section 5.3, an Officer’s Certificate requesting that the Trustee give such notice, which shall include a form of the notice setting forth the information provided in the preceding clauses of this Section 5.3.
(e) Any redemption notice must include the following language:
IMPORTANT INFORMATION REGARDING TAX CERTIFICATION ANDPOTENTIAL WITHHOLDING:
Pursuant to U.S. federal tax laws, you have a duty to provide the applicable type of tax certification form issued by the U.S. Internal Revenue Service (“IRS”) to U.S. Bank Trust Company, National Association to ensure payments are reported accurately to you and to the IRS. In order to permit accurate withholding (or to prevent withholding), a complete and valid tax certification form must be received by U.S. Bank Trust Company, National Association before payment of the redemption proceeds is made to you. Failure to timely provide a valid tax certification form as required will result in the maximum amount of U.S. withholding tax being deducted from any redemption payment that is made to you.
Section 5.4. Effect of Notice of Redemption. Once notice of redemption is sent in accordance with Section 5.3, Notes called for redemption become irrevocably due and payable on the Redemption Date at the redemption price. Notice of any redemption of the Notes may, at the Company’s discretion, be given prior to the completion of a transaction or event (including an Equity Offering, an incurrence of Indebtedness, a Change of Control or other transaction) and any redemption notice may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of the related transaction or event, and may include multiple amounts of Notes that may be redeemed and the conditions precedent applicable to such amounts. 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 Company’s discretion, the Redemption Date may be delayed until such time (including more than 60 days after the date the notice of redemption was mailed or delivered, including by electronic transmission) as any or all such conditions shall be satisfied (or waived by the Company in its discretion), 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 by the Redemption Date, or by the Redemption Date as so delayed. In addition, the Company may provide in such notice that payment of the redemption price and performance of the Company’s obligations with respect to such redemption may be performed by another Person.
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Section 5.5. Deposit of Redemption or Purchase Price.
On or prior to 10:00 a.m. New York City time on the Redemption Date or purchase date, the Company will deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued interest on, all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent will promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption or purchase price of, and accrued interest on, all Notes to be redeemed or purchased.
If the Company complies with the provisions of the preceding paragraph, on and after the Redemption Date or purchase date, interest will cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest up to, but excluding the Redemption Date shall be paid on the Redemption Date to the Person in whose name such Note was registered at the close of business on such record date in accordance with the applicable procedures of DTC, and no additional interest will be payable to Holders whose Notes will be subject to redemption by the Company. If any Note called for redemption or purchase is not so paid upon surrender for redemption or purchase because of the failure of the Company 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 3.1.
Section 5.6. Notes Redeemed or Purchased in Part. Upon surrender of a Note that is redeemed or purchased in part, the Company will issue and, upon receipt of an Issuer Order, the Trustee will authenticate for the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of $2,000 or integral multiple of $1,000 in excess thereof.
Section 5.7. Optional Redemption.
(a) At any time prior to November 15, 2027, the Company may redeem the Notes in whole or in part, at its option, upon not less than 10 nor more than 60 days’ prior notice by electronic delivery or by first class mail, postage prepaid, with a copy to the Trustee, to each Holder to the address of such Holder appearing in the Notes Register, at a redemption price equal to 100% of the principal amount of such Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any, to, but excluding, the date of redemption (the “Redemption Date”), subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date.
(b) At any time and from time to time on or prior to November 15, 2027, the Company may redeem the Notes with the net cash proceeds received by the Company from any Equity Offering at a redemption price equal to 110.500% of the principal amount of such Notes, plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date, in an aggregate principal amount for all such redemptions not to exceed 40% of the aggregate principal amount of the Notes issued under this Indenture on the Issue Date (together with Additional Notes); provided that (1) in each case the redemption takes place not later than 180 days after the closing of the related Equity Offering and (2) not less than 50% of the aggregate principal amount of the Notes issued under this Indenture on the Issue Date remains outstanding immediately thereafter (excluding Notes held by the Company or any of its Restricted Subsidiaries), unless all such Notes are redeemed substantially concurrently. The Trustee shall select the Notes to be purchased in the manner described under Section 5.1 through Section 5.6.
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(c) At any time and from time to time on or after November 15, 2027, the Company may redeem the Notes in whole or in part, at its option, upon not less than 10 nor more than 60 days’ notice by electronic delivery or by first class mail, postage prepaid, with a copy to the Trustee, to each Holder to the address of such Holder appearing in the Notes Register at a redemption price equal to the percentage of principal amount set forth below plus accrued and unpaid interest, if any, on the Notes redeemed, to, but excluding, the applicable Redemption Date, if redeemed during the twelve-month period beginning on November 15 of the year indicated below:
| Year | Percentage | ||
|---|---|---|---|
| 2027 | 105.250 | % | |
| 2028 | 102.625 | % | |
| 2029 and thereafter | 100.000 | % |
(d) Notwithstanding the foregoing, in connection with any tender offer for the Notes, including a Change of Control Offer or Asset Disposition Offer, if Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in such tender offer and the Company, or any third party making such tender offer in lieu of the Company, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Company or such third party will have the right upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase date, to redeem all Notes that remain outstanding following such purchase at a redemption price equal to the price offered to each other Holder (excluding any early tender or incentive fee) in such tender offer plus, to the extent not included in the tender offer payment, accrued and unpaid interest, if any, thereon, to, but excluding, the date of such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the outstanding Notes have validly tendered and not validly withdrawn such Notes in a tender offer, including a Change of Control Offer or Asset Disposition Offer, the Notes owned by the Company or their Affiliates or by funds controlled or managed by any Affiliate of the Company, or any successor thereof, shall be deemed to be outstanding for the purposes of such tender offer.
Section 5.8. Mandatory Redemption.
(a) In the event that (i) the Escrow Outside Date occurs and the Escrow Agent shall not have received an Escrow Release Officer’s Certificate on or prior to such date, (ii) the Issuer informs the Escrow Agent and the Trustee in writing that, in the reasonable judgment of the Issuer, the Merger will not be consummated on or prior to the Escrow Outside Date or (iii) the Issuer informs the Escrow Agent and the Trustee in writing that the Merger Agreement has been terminated prior to the Escrow Outside Date (any such event being a “Mandatory Redemption Event”), the Issuer shall redeem all of the Notes (the “Special Mandatory Redemption”) at a price equal to 100.0% of the initial issue price of the Notes (the “Special Mandatory Redemption Price”), plus accrued and unpaid interest on the Notes to, but excluding, the Special Mandatory Redemption Date, subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date.
(b) Notice of the Special Mandatory Redemption shall be delivered by the Issuer (or the Trustee, if applicable pursuant to the Escrow Agreement) substantially in the form attached as Exhibit F hereto no later than one (1) Business Day following the Mandatory Redemption Event, to the Trustee, the Holders and the Escrow Agent, and shall provide that the Notes shall be redeemed on a date that is no later than the third (3^rd^) Business Day following the Mandatory Redemption Event (or such date as may be required by the applicable procedures of DTC) (in each case, a “Special Mandatory Redemption Date”).
(c) On or prior to the Special Mandatory Redemption Date, pursuant to the Escrow Agreement, the Escrow Agent shall pay to the Trustee for payment to each Holder of Notes an amount up to the Special Mandatory Redemption Price for all outstanding Notes, plus accrued and unpaid interest to, but excluding, the Special Mandatory Redemption Date and, substantially concurrently with the payment to such Holders and after payment of accrued and unpaid fees, costs and expenses of the Trustee, the Notes Collateral Agent and the Escrow Agent, deliver any excess Escrowed Property (if any) to the Issuer.
(d) For the avoidance of doubt, the Issuer shall not be required to effect any Special Mandatory Redemption following the Escrow Release and shall not be required to effect any Special Mandatory Redemption following the Completion Date.
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(e) Any redemption made pursuant to this Section 5.8 shall be made pursuant to the procedures set forth in this Indenture and the Escrow Agreement, except to the extent inconsistent with this Section 5.8.
Section 5.9. No Mandatory Redemption or Sinking Fund. Except as set forth in Section 5.8, the Company is not required to make mandatory redemption payments or sinking fund payments with respect to the Notes; provided, however, that under certain circumstances, the Company may be required to offer to purchase the Notes under Section 3.5 and Section 3.9. The Company, their direct or indirect equity holders (including the Investors), their respective Affiliates and members of management may at any time and from time to time seek to purchase the Notes in the open market, by tender offer or otherwise.
Article VI DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
(a) Each of the following is an “Event of Default”:
(1) default in any payment of interest on any Note when due and payable, continued for 30 days;
(2) default in the payment of the principal amount of or premium, if any, on any Note issued under this Indenture when due at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration or otherwise;
(3) failure by the Company or any Guarantor to comply for 60 days after written notice by the Trustee on behalf of the Holders or by the Holders of at least 30% in aggregate principal amount of the outstanding Notes with any agreement or obligation contained in this Indenture; provided that in the case of a failure to comply with Section 3.10, such period of continuance of such default or breach shall be 120 days after written notice described in this clause (3) has been given;
(4) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any Significant Subsidiary, or the payment of which is Guaranteed by the Company or any Significant Subsidiary other than Indebtedness owed to the Company or a Restricted Subsidiary whether such Indebtedness or Guarantee now exists, or is created after the Issue Date, which default:
(A) is caused by a failure to pay principal of such Indebtedness, at its stated final maturity (after giving effect to any applicable grace periods) provided in such Indebtedness (“payment default”); or
(B) results in the acceleration of such Indebtedness prior to its stated final maturity;
and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a payment default of principal at its stated final maturity (after giving effect to any applicable grace periods) or the maturity of which has been so accelerated, aggregates to $45.0 million or more at any one time outstanding;
(5) the Company or a Significant Subsidiary or group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary:
(A) commences a voluntary bankruptcy case or other Insolvency or Liquidation Proceeding under any Bankruptcy Law;
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(B) consents to the entry of an order for relief against it in an involuntary bankruptcy or insolvency case or other Insolvency or Liquidation Proceeding under any Bankruptcy Law;
(C) consents to the appointment of a Custodian of it or for substantially all of its property;
(D) makes a general assignment for the benefit of its creditors pursuant to any Bankruptcy Law;
(E) consents to or acquiesces in the institution of a bankruptcy or an Insolvency or Liquidation Proceeding against it; or
(F) takes any comparable action under any foreign Bankruptcy Laws or other laws otherwise relating to insolvency;
(6) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is for relief against the Company or a Significant Subsidiary, or group of Restricted Subsidiaries that together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries) would constitute a Significant Subsidiary, in an involuntary bankruptcy case or other Insolvency or Liquidation Proceeding;
(B) appoints a Custodian of the Company or a Significant Subsidiary or group of Restricted Subsidiaries that together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary, for substantially all of the property of the Company or such Significant Subsidiary or such group of Restricted Subsidiaries, as applicable;
(C) orders the winding up or liquidation of the Company or a Significant Subsidiary, or group of Restricted Subsidiaries that together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary; or
(D) any similar relief is granted under any foreign laws;
and the order, decree or relief remains unstayed and in effect for 60 consecutive days;
(7) failure by the Company or a Significant Subsidiary to pay final judgments aggregating in excess of $45.0 million (measured at the date of such judgment) other than any judgments covered by indemnities provided by, or insurance policies issued by, reputable and creditworthy companies, which final judgments remain unpaid, undischarged and unstayed for a period of more than 90 days after such judgment becomes final, and in the event such judgment is covered by insurance, an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly stayed;
(8) any Note Guarantee by a Significant Subsidiary ceases to be in full force and effect, other than in accordance with the terms of this Indenture;
(9) unless such Liens have been released in accordance with the provisions of the Note Documents, the Notes Liens with respect to all or a material portion of the Collateral in excess of $45.0 million cease to be valid or enforceable, or the Company shall assert or any Guarantor shall assert, in any pleading in any court of competent jurisdiction, that any such security interest is invalid or unenforceable; and
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(10) the failure by the Company to consummate the Special Mandatory Redemption to the extent required, or to maintain funds in the Escrow Account equal to the Special Mandatory Redemption Price on or at any time after the Issue Date, as described under Section 5.8.
(b) Notwithstanding the foregoing, a default under Section 6.1(a)(3), Section 6.1(a)(4) or Section 6.1(a)(7) will not constitute an Event of Default until the Trustee or the Holders of at least 30% in principal amount of the outstanding Notes notify the Company of the Default (with a copy to the Trustee if notice is given by the Holders) and, with respect to Section 6.1(a)(3) or Section 6.1(a)(7), the Company does not cure such Default within the time specified in Section 6.1(a)(3) or Section 6.1(a)(7) after receipt of such notice. Any notice of Default, notice of acceleration or instruction to the Trustee or the Notes Collateral Agent, as applicable, to provide a notice of Default, notice of acceleration or take any other action with respect to an alleged Default or Event of Default (a “Noteholder Direction”) provided by any one or more Holders (other than a Regulated Bank) (each a “Directing Holder”) must be accompanied by a written representation from each such Holder delivered to the Company and the Trustee and the Notes Collateral Agent, if applicable, that such Holder is not (or, in the case such Holder is DTC or its nominee, that such Holder is being instructed solely by beneficial owners that have represented to such Holder that they are not) Net Short (a “Position Representation”), which representation, in the case of a Noteholder Direction relating to the delivery of a notice of Default shall be deemed a continuing representation until the resulting Event of Default is cured or otherwise ceases to exist or the Notes are accelerated. In addition, each Directing Holder is deemed, at the time of providing a Noteholder Direction, to covenant to provide the Company with such other information as the Company may reasonably request from time to time in order to verify the accuracy of such Noteholder’s Position Representation within five Business Days of request therefor (a “Verification Covenant”). In any case in which the Holder is DTC or its nominee, any Position Representation or Verification Covenant required hereunder shall be provided by the beneficial owner of the Notes in lieu of DTC or its nominee and DTC, shall be entitled to conclusively rely on such Position Representation and Verification Covenant in delivering its direction to the Trustee and the Notes Collateral Agent, if applicable.
If, following the delivery of a Noteholder Direction, but prior to acceleration of the Notes, the Company determines in good faith that there is a reasonable basis to believe a Directing Holder was, at any relevant time, in breach of its Position Representation and provides to the Trustee and the Notes Collateral Agent, as applicable, an Officer’s Certificate stating that the Company has initiated litigation in a court of competent jurisdiction seeking a determination that such Directing Holder was, at such time, in breach of its Position Representation, and seeking to invalidate any Default, Event of Default or acceleration (or notice thereof) that resulted from the applicable Noteholder Direction, the cure period with respect to such Default or Event of Default shall be automatically stayed and the cure period with respect to such Default or Event of Default shall be automatically reinstituted and any remedy stayed pending a final and non-appealable determination of a court of competent jurisdiction on such matter if, without the participation of such Holder, the percentage of Notes held by the remaining Holders that provided such Noteholder Direction would have been insufficient to validly provide such Noteholder Direction.
If, following the delivery of a Noteholder Direction, but prior to acceleration of the Notes, the Company provides to the Trustee and the Notes Collateral Agent, if applicable, an Officer’s Certificate stating that a Directing Holder failed to satisfy its Verification Covenant, the cure period with respect to such Default or Event of Default shall be automatically stayed and the cure period with respect to any Default or Event of Default that resulted from the applicable Noteholder Direction shall be automatically reinstituted and any remedy stayed pending satisfaction of such Verification Covenant.
If an Officer’s Certificate has been delivered to the Trustee and Notes Collateral Agent, if applicable, the Trustee and Notes Collateral Agent shall refrain from acting in accordance with such Noteholder Direction until such time as the Company provides to the Trustee an Officer’s Certificate certifying that (i) the Directing Holder has satisfied its Verification Covenant, (ii) the Directing Holder has failed to satisfy its Verification Covenant or (iii) a court of competent jurisdiction has ruled that such Directing Holder was, at such time, not in breach of its Position Representation.
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Any breach of the Position Representation shall result in such Holder’s participation in such Noteholder Direction being disregarded; and, if, without the participation of such Holder, the percentage of Notes held by the remaining Holders that provided such Noteholder Direction would have been insufficient to validly provide such Noteholder Direction, such Noteholder Direction shall be void ab initio (other than any indemnity such Directing Holder may have offered the Trustee or the Notes Collateral Agent), with the effect that such Default or Event of Default shall be deemed never to have occurred, acceleration voided and the Trustee and the Notes Collateral Agent shall be deemed not to have received such Noteholder Direction or any notice of such Default or Event of Default, shall not be permitted to act thereon and shall be restricted from accepting and acting on any future Noteholder Direction in relation to such Event of Default. If the Directing Holder has satisfied its Verification Covenant, then the Trustee shall be permitted to act in accordance with such Noteholder Direction. Notwithstanding the above, if such Directing Holder’s participation is not required to achieve the requisite level of consent of Holders required under this Indenture to give such Noteholder Direction, the Trustee shall be permitted to act in accordance with such Noteholder Direction notwithstanding any action taken or to be taken by the Company (as described above). The Trustee shall be entitled to conclusively rely on any Noteholder Direction (provided that the relevant Position Representations are provided in accordance with the provisions of the preceding paragraph) or Officer’s Certificate delivered to it in accordance with this Indenture without verification, investigation or otherwise as to the statements made therein.
Each of the Company, each Holder and each beneficial owner, by accepting a Note, acknowledges and agrees that the Trustee and Notes Collateral Agent (or any of their respective agents) shall not be liable to any party, howsoever arising, for acting or refraining to act in accordance with (i) the foregoing provisions, (ii) any Noteholder Direction, (iii) any Officer’s Certificate or (iv) its duties under this Indenture, as each of the Trustee, Notes Collateral Agent or any of their respective agents may determine in its sole discretion. Each of the Trustee, Notes Collateral Agent and any of their respective agents shall be entitled to conclusively rely on any Noteholder Direction delivered to it in accordance with this Indenture and shall have no obligation (i) to inquire, as to, monitor, investigate, verify or otherwise determine if a Holder or beneficial owners has a Net Short position, (ii) inquire, investigate or verify the merits, validity, accuracy or authenticity of any Position Representation, Verification Covenant or Officer’s Certificate, as the case may be, (iii) inquire if the Company will seek action to determine if a Directing Holder has breached its Position Representation, (iv) enforce any Verification Covenant, (v) investigate or verify any statements or certifications in any Officer’s Certificate, (vi) monitor any court proceedings undertaken in connection therewith, (vii) monitor or investigate whether any Default or Event of Default has been publicly reported, (viii) make any calculations, investigations or determinations with respect to any Net Short position or otherwise or (ix) be responsible or liable for any delay in acting upon Noteholder Direction that the foregoing provisions may cause. Each of the Trustee, Notes Collateral Agent and their respective agents shall be entitled to rely on its rights, authorities, protections, benefits and immunities under this Indenture at all times, including, without limitation, for actions that are taken and subsequently stayed or annulled.
For the avoidance of doubt, (i) the Trustee will treat all Holders equally with respect to their rights under this section and (ii) the percentage of Notes held by any Holder participating in a Noteholder Direction will be calculated in relation to the aggregate principal amount of the Notes then outstanding.
Notwithstanding anything in the preceding seven paragraphs to the contrary, any Noteholder Direction delivered to the Trustee and the Notes Collateral Agent, if applicable, during the pendency of an Event of Default as the result of a bankruptcy or similar proceeding shall not require compliance with the foregoing paragraphs. In addition, for the avoidance of doubt, the foregoing paragraphs shall not apply to any Holder that is a Regulated Bank; provided that, if a Regulated Bank is a Directing Holder or beneficial owner directing DTC, it shall provide a written representation to the Company and the Trustee that it is a Regulated Bank.
Notwithstanding any of the foregoing, none of the Trustee, the Notes Collateral Agent nor any of their respective agents shall have any liability to the Company, any Holder, any beneficial owner or any other Person in acting in good faith on a Noteholder Direction.
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Section 6.2. Acceleration.
(a) If an Event of Default (other than an Event of Default described in Section 6.1(a)(5) or Section 6.1(a)(6)) occurs and is continuing, the Trustee by written notice to the Company or the Holders of at least 30% in principal amount of the outstanding Notes by written notice to the Company and the Trustee may declare the principal of and accrued and unpaid interest, if any, on all the Notes to be due and payable. Upon such a declaration, such principal and accrued and unpaid interest, if any, will be due and payable immediately. In the event of a declaration of acceleration of the Notes because an Event of Default described in Section 6.1(a)(4) has occurred and is continuing, the declaration of acceleration of the Notes shall be automatically annulled, waived and rescinded if the event of default or payment default triggering such Event of Default shall be remedied or cured, or waived by the holders of the Indebtedness, or the Indebtedness that gave rise to such Event of Default shall have been discharged in full, in each case, within 30 days after the declaration of acceleration with respect thereto and the annulment of the acceleration of the Notes would not conflict with any judgment or decree of a court of competent jurisdiction.
(b) If an Event of Default described in Section 6.1(a)(5) or Section 6.1(a)(6) occurs and is continuing, the principal of, and accrued and unpaid interest, if any, on all the Notes will become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.
(c) (i) If a Default for a failure to report or failure to deliver a required certificate in connection with another Default (the “Initial Default”) occurs, then at the time such Initial Default is cured, such Default for a failure to report or failure to deliver a required certificate in connection with another Default that resulted solely because of that Initial Default shall also be cured without any further action and (ii) any Default or Event of Default for the failure to comply with the time periods prescribed under Section 3.10, or otherwise to deliver any notice or certificate pursuant to any other provision of this Indenture shall be deemed to be cured upon the delivery of any such report required by Section 3.10 or such notice or certificate, as applicable, even though such delivery is not within the prescribed period specified in this Indenture. Any time period in this Indenture to cure any actual or alleged Default or Event of Default may be extended or stayed by a court of competent jurisdiction.
(d) If the Notes are accelerated or otherwise become due prior to their stated maturity date, in each case, as a result of an Event of Default (including an Event of Default described in Section 6.1(a)(5) or Section 6.1(a)(6)), the Applicable Premium or the amount by which the applicable redemption price of the Notes exceeds the principal amount of the Notes (the “Redemption Price Premium”), will also be due and payable without any further action as though such voluntary prepayment had occurred, and any such Redemption Price Premium shall constitute part of the Notes Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Holder’s lost profits as a result thereof. If the applicable Redemption Price Premium becomes due and payable, it shall be deemed to be additional Notes, and interest shall accrue on the full principal amount of the Notes (including the applicable Redemption Price Premium) from and after the triggering event, including in connection with an Event of Default described in Section 6.1(a)(5) and Section 6.1(a)(6). Any Redemption Price Premium payable pursuant to this Section 6.2(d) shall be presumed to be the liquidated damages sustained by each applicable Holder as the result of the early termination and the Company agrees that it is reasonable under the circumstances currently existing. Any applicable Redemption Price Premium shall also be payable in the event the Notes Obligations (and/or this Indenture) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means. Any Redemption Price Premium pursuant to this Section 6.2(d) shall be presumed to be the liquidated damages sustained by each holder as a result of the early prepayment and the Company and the Guarantors agree that it is reasonable under the circumstances currently existing. THE COMPANY AND EACH GUARANTOR EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. The Company expressly agrees (to the fullest extent it may lawfully do so) that: (A) the Redemption Price Premium described herein is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) such Redemption Price Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between the Holders and the Company giving specific consideration in this transaction for such agreement to pay the Redemption Price Premium; and (D) the Company shall be estopped hereafter from claiming differently than as agreed to in this Section 6.2(d). The Company expressly acknowledges that the agreement to pay the applicable Redemption Price Premium to Holders as herein described is a material inducement to Holders to enter into this Indenture.
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Section 6.3. Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal of, or premium, if any, or interest, on the Notes or to enforce the performance of any provision of the Notes, this Indenture and the Collateral Documents. The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative.
Section 6.4. Waiver of Past Defaults. The Holders of a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may, on behalf of all of the Holders, (a) waive, by their consent (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), an existing Default or Event of Default and its consequences under this Indenture except (i) a Default or Event of Default in the payment of the principal of or interest on a Note or (ii) a Default or Event of Default in respect of a provision that under Section 9.2 cannot be amended without the consent of each Holder affected and (b) rescind any such acceleration with respect to the Notes and its consequences if (1) such rescission would not conflict with any judgment or decree of a court of competent jurisdiction, (2) all existing Events of Default have been cured or waived except nonpayment of principal, premium, if any, or interest that has become due solely because of the acceleration, (3) to the extent the payment of such interest is lawful, interest on overdue installments of interest, premium, if any, and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid, (4) the Company has paid the Trustee and the Notes Collateral Agent their compensation and reimbursed the Trustee and Collateral Agent for their reasonable expenses, disbursements and advances and (5) in the event of the cure or waiver of an Event of Default of the type described in clause (4) of Section 6.1, the Trustee shall have received an Officer’s Certificate and an Opinion of Counsel stating that such Event of Default has been cured or waived. No such rescission shall affect any subsequent Default or impair any right consequent thereto. When a Default or Event of Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any consequent right.
Section 6.5. Control by Majority. Subject to the terms of the Collateral Documents, the Holders of a majority in principal amount of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or the Notes Collateral Agent or of exercising any trust or power conferred on the Trustee or the Notes Collateral Agent. However, the Trustee or Notes Collateral Agent may refuse to follow any direction that conflicts with law or this Indenture or the Notes or, subject to Sections 7.1 and 7.2, that the Trustee determines is unduly prejudicial to the rights of other Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any actions are unduly prejudicial to such Holders) or would involve the Trustee in personal liability; provided, however, that the Trustee and Notes Collateral Agent may take any other action deemed proper by the Trustee that is not inconsistent with such direction. Prior to taking any such action hereunder, each of the Trustee and Notes Collateral Agent shall be entitled to indemnification satisfactory to each of them against all fees, losses, liabilities and expenses (including attorney’s fees and expenses) that may be caused by taking or not taking such action.
Section 6.6. Limitation on Suits. Subject to Section 6.7, no Holder may pursue any remedy with respect to this Indenture or the Notes unless:
(1) such Holder has previously given the Trustee written notice that an Event of Default is continuing;
(2) Holders of at least 30% in principal amount of the outstanding Notes have requested in writing the Trustee or the Notes Collateral Agent, as applicable, to pursue the remedy;
(3) such Holders have offered in writing and, if requested, provided to the Trustee and the Notes Collateral Agent, if applicable, security and/or indemnity satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee or the Notes Collateral Agent has not complied with such request within 60 days after the receipt of the written request and the offer of security and/or indemnity; and
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(5) the Holders of a majority in principal amount of the outstanding Notes have not given the Trustee or the Notes Collateral Agent a written direction that, in the opinion of the Trustee or the Notes Collateral Agent, as applicable, is inconsistent with such request within such 60-day period.
Section 6.7. Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture (including, without limitation, Section 6.6), and subject to Section 6.5, the contractual right of any Holder to institute suit for the enforcement of payment of principal of or interest on the Notes held by such Holder, on or after the respective due dates expressed or provided for in the Notes, shall not be impaired without the consent of such Holder; provided that, for the avoidance of doubt, the amendment, supplement or modification of this Indenture in accordance with Article IX, and any remedy obtained or proceeding instituted therefor in accordance with Section 6.5, in each case shall be deemed not to impair the contractual right of any Holder to institute suit for the enforcement of payment of principal of or interest on the Notes held by such Holder.
Section 6.8. Collection Suit by Trustee. If an Event of Default specified in Section 6.1(a)(1) or (2) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount then due and owing (together with interest on any unpaid interest to the extent lawful) and the amounts provided for in Section 7.6.
Section 6.9. Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, the Notes Collateral Agent, their agents and counsel) and the Holders allowed in any Insolvency or Liquidation Proceedings or other judicial proceedings relative to the Company, their Subsidiaries or their respective creditors or properties and, unless prohibited by law or applicable regulations, may be entitled and empowered to participate as a member of any official committee of creditors appointed in such matter and may vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodian in any such Insolvency or Liquidation Proceeding or other judicial proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to each of the Trustee and Notes Collateral Agent any amount due it for the compensation, expenses, disbursements and advances of the Trustee, the Notes Collateral Agent, their agents and counsel, and any other amounts due the Trustee or the Notes Collateral Agent under Section 7.6 and Section 12.9(aa).
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, compromise, adjustment or composition or similar restructuring plan affecting the Notes or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10. Priorities.
(a) Subject to Section 12.4 and the provisions of the First Lien Intercreditor Agreement and any other Intercreditor Agreement and the Collateral Documents, if the Trustee collects any money or property pursuant to this Article VI it shall pay out the money or property in the following order:
FIRST: to the Trustee and the Notes Collateral Agent for amounts due to it under Section 7.6 and Section 12.9(aa);
SECOND: to Holders for amounts due and unpaid on the Notes for principal of, or premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal of, or premium, if any, and interest, respectively; and
THIRD: to the Company, or to the extent the Trustee collects any amount for any Guarantor, to such Guarantor or as a court of competent jurisdiction may direct in a final non-appealable judgment.
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(b) 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 Company shall send or cause to be sent to each Holder and the Trustee a notice that states the record date, the payment date and amount to be paid.
Section 6.11. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by the Company, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than 10% in outstanding principal amount of the Notes.
Article VII TRUSTEE
Section 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing and is actually known or notified in writing to a Responsible Officer of the Trustee, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent Person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b) Except during the continuance of an Event of Default that is actually known or notified in writing to a Responsible Officer of the Trustee:
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth as duties of the Trustee in this Indenture, the Notes, the Collateral Documents or the Intercreditor Agreements and no implied covenants or obligations shall be read into this Indenture or the other Note Documents against the Trustee; and
(2) in the absence of gross negligence on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates, opinions or orders furnished to the Trustee and conforming to the requirements of this Indenture or the Notes, as the case may be. However, in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such certificates and opinions to determine whether or not they conform to the requirements of this Indenture or the Notes, as the case may be (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act or its own willful misconduct, except that:
(1) this Section 7.1(c) does not limit the effect of Section 7.1;
(2) the Trustee shall not be liable for any action taken or error of judgment made in good faith by a Responsible Officer unless it is proved that the Trustee was grossly negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5; and
(4) no provision of this Indenture or the Notes shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or thereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
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(d) Every provision of this Indenture that in any way relates to the Trustee is subject to clauses (a), (b) and (c) of this Section 7.1.
(e) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 7.1.
Section 7.2. Rights of Trustee. Subject to Section 7.1:
(a) The Trustee may conclusively rely on and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, judgment, order or other paper or document (whether in its original, facsimile or other electronic form) reasonably believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document. The Trustee shall receive and retain financial reports and statements of the Company as provided herein, but shall have no duty to review or analyze such reports or statements to determine compliance with covenants or other obligations of the Company. The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such reports. The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Company’s compliance with the covenants or with respect to any reports or other documents filed with the SEC or EDGAR or the Company’s website under this Indenture, or participate in any conference calls.
(b) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate and/or an Opinion of Counsel. Notwithstanding the foregoing, no Opinion of Counsel shall be required in connection with the execution and delivery of a supplemental indenture in the form of Exhibit B hereto by Shutterstock and its Subsidiaries as required by Section 3.7(b) hereof. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate or Opinion of Counsel.
(c) The Trustee may execute any of the trusts and powers hereunder or perform any duties hereunder either directly or by or through its attorneys and agents and shall not be responsible for the acts or omissions of any agent or attorney appointed with due care by it hereunder.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers conferred upon it by this Indenture.
(e) The Trustee may consult with counsel of its selection, and the advice or opinion of counsel relating to this Indenture or the Notes shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it hereunder or under the Notes in good faith and in reliance on the advice or opinion of such counsel.
(f) The Trustee shall not be deemed to have notice of any Default or Event of Default or whether any entity or group of entities constitutes a Significant Subsidiary unless a Responsible Officer of the Trustee has actual knowledge thereof and written notice of any event which is in fact such a Default, Event of Default or of any such Significant Subsidiary is received by a Responsible Officer of the Trustee at the corporate trust office of the Trustee specified in Section 3.11, and such notice references the Notes and this Indenture.
(g) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder and under the other Note Documents, and to each agent, custodian and other Person employed to act hereunder, including the Notes Collateral Agent.
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(h) Neither the Trustee nor the Notes Collateral Agent shall be under any obligation to exercise any of the rights or powers vested in it by this Indenture or the other Note Documents at the request, order or direction of any of the Holders pursuant to the provisions of this Indenture, unless such Holders shall have offered, and if requested, provided to the Trustee and Notes Collateral Agent, if applicable, security or indemnity satisfactory to each of them against the losses, liabilities and expenses which may be incurred therein or thereby.
(i) The Trustee shall not be deemed to have knowledge of any fact or matter unless such fact or matter is actually known to a Responsible Officer of the Trustee, and the delivery of reports or other information provided to the Trustee or otherwise publicly available shall not constitute actual or constructive knowledge or notice.
(j) Whenever in the administration of this Indenture or the Notes the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder or thereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of gross negligence or willful misconduct on its part, conclusively rely upon an Officer’s Certificate.
(k) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, report, notice, request, direction, consent, order, judgment, bond, debenture, coupon or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine, during business hours and upon reasonable notice, the books, records and premises of the Company and the Restricted Subsidiaries, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(l) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
(m) The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture or the Notes.
(n) In no event shall the Trustee be liable to any Person for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(o) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by one Officer of the Company.
(p) The permissive rights of the Trustee under this Indenture and the Note Documents shall not be construed as duties.
(q) The Trustee may, as it determines appropriate in its sole discretion, appoint a separate trustee or co-trustee, and the Trustee shall not have any responsibility or liability relating to such appointment or the action or inaction by such separate or co-trustee.
(r) The Company shall provide, upon request by the Trustee, such information as is necessary to determine the nature of any income on which any tax or withholding obligations apply. The Trustee shall have the right to withhold from any payments if such is required to comply with applicable tax law, and the Trustee shall be indemnified from any liability related to tax withholding. The Company shall also provide or cause to be provided to the Trustee all information necessary to allow the Trustee to comply with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Internal Revenue Code Section 6045. In connection with any proposed transfer outside the book-entry system, the Company shall provide to the Trustee all information necessary to allow the Trustee to comply with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Internal Revenue Code Section 6045. The Trustee may rely on the information provided to it and shall have no responsibility to verify or ensure the accuracy of such information.
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(s) Neither the Trustee nor the Notes Collateral Agent shall be responsible or liable for the preparation, filing, correctness, or accuracy of any UCC financing statements, or the existence, validity, or perfection (or maintenance thereof) of any lien or security interest.
Section 7.3. Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company, the Guarantors or their respective Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar or co-paying agent may do the same with like rights. However, the Trustee must comply with Section 7.9. In addition, the Trustee shall be permitted to engage in transactions with the Company; provided, however, that if the Trustee acquires any conflicting interest, the Trustee must (i) eliminate such conflict within 90 days of acquiring such conflicting interest, (ii) apply to the SEC for permission to continue acting as Trustee or (iii) resign.
Section 7.4. Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture, the Notes or the other Note Documents, shall not be accountable for the Company’s use of the proceeds from the sale of the Notes, shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee or any money paid to the Company pursuant to the terms of this Indenture or the other Note Documents and shall not be responsible for any statement of the Company in this Indenture, the Note Documents or in any document issued in connection with the sale of the Notes or in the Notes other than the Trustee’s certificate of authentication.
Section 7.5. Notice of Defaults. If a Default or Event of Default occurs and is continuing and if a Responsible Officer has actual knowledge thereof, the Trustee shall send electronically or by first class mail to each Holder at the address set forth in the Notes Register notice of the Default or Event of Default within 60 days after it is actually known to a Responsible Officer. Except in the case of a Default or Event of Default in payment of principal of, or interest on any Note (including payments pursuant to the optional redemption or required repurchase provisions of such Note), the Trustee may withhold the notice if and so long as the Trustee in good faith determines that withholding notice is in the interests of the Holders.
Section 7.6. Compensation and Indemnity. The Company shall pay to the Trustee and the Notes Collateral Agent from time to time compensation for its services hereunder and under the Notes as the Company, the Trustee and the Notes Collateral Agent shall from time to time agree in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse each of the Trustee and the Notes Collateral Agent upon request for all reasonable out-of-pocket expenses incurred or made by it, including, but not limited to, costs of collection, costs of preparing reports, certificates and other documents, costs of preparation and mailing of notices to Holders. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the agents, counsel, accountants and experts of the Trustee and the Notes Collateral Agent. The Company and Guarantors, jointly and severally, shall indemnify the Trustee, the Notes Collateral Agent, their officers, directors, employees and agents against any and all fees, loss, liability, damages, claims, costs or expenses, including taxes (other than taxes based upon the income of the Trustee or the Notes Collateral Agent) (including reasonable attorneys’ and agents’ fees and expenses and court costs) incurred by it without willful misconduct or gross negligence, as determined by a final nonappealable order of a court of competent jurisdiction, on its part in connection with the administration of this trust and the performance of its duties hereunder, under the Notes and the other Note Documents, including the fees, costs and expenses incurred in connection with any action, claim or suit brought to enforce this Indenture (including this Section 7.6), the Notes and the other Note Documents and of defending itself against any claims (whether asserted by any Holder, the Company, any Guarantor or otherwise). The Trustee and the Notes Collateral Agent shall notify the Company promptly of any claim for which it may seek indemnity of which it has received written notice. Failure by the Trustee or the Notes Collateral Agent to so notify the Company shall not relieve the Company of their obligations hereunder. The Company shall defend the claim and the Trustee and the Notes Collateral Agent, as applicable, shall provide reasonable cooperation at the Company’s expense in the defense. The Trustee and the Notes Collateral Agent may have separate counsel and the Company shall pay the fees and expenses of such counsel; providedthat the Company shall not be required to pay the fees and expenses of such separate counsel if it assumes the Trustee’s and the Notes Collateral Agent’s, as applicable, defense, and, in the reasonable judgment of outside counsel to the Trustee or the Notes Collateral Agent, as applicable, there is no conflict of interest between the Company and the Trustee and the Notes Collateral Agent, as applicable, in connection with such defense; provided, further, that the Company shall be required to pay the reasonable fees and expenses of such counsel in evaluating such conflict.
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To secure the Company’s payment obligations in this Section 7.6, the Trustee shall have a lien prior to the Notes on all money or property held or collected by the Trustee. Such lien shall survive the satisfaction and discharge of this Indenture. The Trustee’s and the Notes Collateral Agent’s respective right to receive payment of any amounts due under this Section 7.6 shall not be subordinate to any other liability or Indebtedness of the Company.
The Company’s payment obligations pursuant to this Section 7.6 shall survive the discharge of this Indenture and the resignation or removal of the Trustee and the Notes Collateral Agent. Without prejudice to any other rights available to the Trustee or the Notes Collateral Agent under applicable law, when the Trustee or the Notes Collateral Agent incurs fees, expenses or renders services after the occurrence of a Default specified in Section 6.1(a)(5) or Section 6.1(a)(6), the fees and expenses (including the reasonable fees and expenses of its counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
Section 7.7. Replacement of Trustee.
The Trustee may resign at any time by so notifying the Company in writing not less than 30 days prior to the effective date of such resignation. The Holders of a majority in aggregate principal amount of the Notes may remove the Trustee by so notifying the removed Trustee in writing not less than 30 days prior to the effective date of such removal and may appoint a successor Trustee with the Company’s written consent, which consent will not be unreasonably withheld. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.9;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed by the Company or by the Holders of a majority in principal amount of the Notes and such Holders do not reasonably promptly appoint a successor Trustee as described in the preceding paragraph, or if a vacancy exists in the office of the Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall, at the expense of the Company, promptly transfer all property held by it as Trustee to the successor Trustee, subject to the Lien provided for in Section 7.6.
If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of at least 10% in principal amount of the Notes may petition, at the Company’s expense, any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.9, unless the Trustee’s duty to resign is stayed, any Holder, who has been a bona fide Holder of a Note for at least six months, may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.7, the Company’s obligations under Section 7.6 shall continue for the benefit of the retiring Trustee. The predecessor Trustee shall have no liability for any action or inaction of any successor Trustee.
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Section 7.8. Successor Trustee by Merger. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor to the Trustee; provided that the right to adopt the certificate of authentication of any predecessor Trustee or authenticate Notes in the name of any predecessor Trustee shall only apply to its successor or successors by merger, consolidation or conversion.
Section 7.9. Eligibility; Disqualification. There shall at all times be a Trustee hereunder that is authorized to exercise corporate trustee power. The Trustee shall have a combined capital and surplus of at least $100.0 million as set forth in its most recent published annual report of condition.
Section 7.10. Trustee’s Application for Instruction from the Company. Any application by the Trustee for written instructions from the Company may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any Officer of the Company actually receive such application, unless any such Officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Trustee shall have received written instructions in response to such application specifying the action to be taken or omitted.
Section 7.11. Collateral Documents; Intercreditor Agreements. By their acceptance of the Notes, the Holders hereby authorize and direct the Trustee and Notes Collateral Agent, as the case may be, to execute and deliver the Intercreditor Agreements and any other Collateral Documents in which the Trustee or the Notes Collateral Agent, as applicable, is named as a party, including any Collateral Documents executed after the Issue Date. It is hereby expressly acknowledged and agreed that, in doing so, the Trustee and the Notes Collateral Agent are (a) expressly authorized to make the representations attributed to Holders in any such agreements and (b) not responsible for the terms or contents of such agreements, or for the validity or enforceability thereof, or the sufficiency thereof for any purpose. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under, the Intercreditor Agreements or any other Collateral Documents, the Trustee and the Notes Collateral Agent each shall have all of the rights, immunities, indemnities and other protections granted to it under this Indenture (in addition to those that may be granted to it under the terms of such other agreement or agreements).
Section 7.12. Escrow Authorization. Each Holder, by its acceptance of a Note, (i) consents and agrees to the terms of the Escrow Agreement, including documents related thereto, as the same may be in effect or may be amended from time to time in writing by the parties thereto and (ii) authorizes and directs the Trustee to enter into the Escrow Agreement and to perform its obligations and exercise its rights thereunder in accordance therewith. The Issuer shall do or cause to be done all such acts and things as may be necessary or proper, or as may be required by the provisions of the Escrow Agreement, to assure and confirm to the Trustee the security interest contemplated by the Escrow Agreement or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and of the Notes secured hereby, according to the intent and purpose herein expressed. The Issuer shall take, or shall cause to be taken, any and all actions reasonably required to cause the creation and maintenance of, as security for the obligations of the Issuer under this Indenture and the Notes as provided in the Escrow Agreement, valid and enforceable first priority perfected Liens in and on all of the Escrowed Property, in favor of the Trustee for its benefit and for the benefit of the Holders, superior to and prior to the rights of third Persons and subject to no other Liens. The Trustee shall have no duty to file any financing or continuation statements or otherwise take any actions to perfect the Lien granted under the Escrow Agreement. The Trustee shall not be liable for the validity, perfection, priority or enforceability of the Lien granted under the Escrow Agreement.
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Article VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance; Defeasance. The Company and the Guarantors may, at their option and at any time, elect to have either Section 8.2 or Section 8.3 be applied to all outstanding Notes, and have Liens, if any, on the Collateral securing the Notes released and upon compliance with the conditions set forth in this Article VIII.
Section 8.2. Legal Defeasance and Discharge. Upon the Company’s exercise under Section 8.1 of the option applicable to this Section 8.2, the Company and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.4, be deemed to have been discharged from their obligations with respect to all outstanding Notes (including the Note Guarantees) on the date the conditions set forth in Section 8.4 are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Guarantees), which will thereafter be deemed to be “outstanding” only for the purposes of Section 8.5 and the other Sections of this Indenture referred to in clauses (1) and (2) below, and to have satisfied all of their other obligations under such Notes, the Note Guarantees, this Indenture and the Collateral Documents (and the Trustee, on written demand of and at the expense of the Company, shall execute such instruments reasonably requested by the Company acknowledging the same) and to have cured all then existing Events of Default, except for the following provisions which will survive until otherwise terminated or discharged hereunder:
(1) the rights of Holders of Notes issued under this Indenture to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due solely out of the trust referred to in Section 8.4;
(2) the Company’s obligations with respect to the Notes under Article II concerning issuing temporary Notes, registration of such Notes, mutilated, destroyed, lost or stolen Notes and Section 3.11 concerning the maintenance of an office or agency for payment and money for security payments held in trust;
(3) the rights, powers, trusts, duties and immunities of the Trustee and the Company’s or Guarantors’ obligations in connection therewith; and
(4) this Article VIII with respect to provisions relating to Legal Defeasance.
Subject to compliance with this Section 8.2, the Company may exercise their option under this Section 8.2 notwithstanding the prior exercise of their option under Section 8.3.
Section 8.3. Covenant Defeasance. Upon the Company’s exercise under Section 8.1 of the option applicable to this Section 8.3, the Company and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.4, be released from each of their obligations under the covenants contained in Section 3.2, Section 3.3, Section 3.4, Section 3.5, Section 3.6, Section 3.7, Section 3.8, Section 3.9, Section 3.10, Section 3.18, Section 3.19, Section 3.20 and Section 4.1 (except Section 4.1(a)(1) and (2)) with respect to the outstanding Notes on and after the date of the conditions set forth in Section 8.4 are satisfied and have Liens, if any, on the Collateral securing the Notes released (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. For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and Note Guarantees, The Company and the Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.1, but, except as specified in this Section 8.3, the remainder of this Indenture and such Notes and Note Guarantees will be unaffected thereby. In addition, upon the Company’s exercise under Section 8.1 of the option applicable to this Section 8.3, subject to the satisfaction of the conditions set forth in Section 8.4, Section 6.1(a)(3) (solely with respect to the defeased covenants listed above), Section 6.1(a)(4), Section 6.1(a)(5) (with respect only to a Guarantor that is a Significant Subsidiary or any group of Guarantors that taken together would constitute a Significant Subsidiary), Section 6.1(a)(6) (with respect only to a Guarantor that is a Significant Subsidiary or any group of Guarantors that taken together would constitute a Significant Subsidiary), Section 6.1(a)(7), Section 6.1(a)(8) and Section 6.1(a)(9) shall not constitute Events of Default.
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Section 8.4. Conditions to Legal or Covenant Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.2 or Section 8.3:
(1) the Company (i) must irrevocably deposit in trust (the “defeasance trust”) with the Trustee cash in Dollars or U.S. Government Obligations or a combination thereof for the payment of principal, premium (if any), and interest on the Notes to redemption or maturity, as the case may be; provided, that upon any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee equal to the Applicable Premium calculated as of the date of the notice of redemption, with any deficit as of the Redemption Date (any such amount, the “Applicable Premium Deficit”) only required to be deposited with the Trustee on or prior to the Redemption Date. Any Applicable Premium Deficit shall be set forth in an Officer’s Certificate delivered to the Trustee at least two Business Days prior to the Redemption Date that confirms that such Applicable Premium Deficit shall be applied toward such redemption, and (ii) specify whether such Notes are being defeased to maturity or to a particular Redemption Date;
(2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee, an Opinion of Counsel, subject to customary assumptions, representations and exclusions, to the effect that beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income Tax purposes as a result of such deposit and defeasance and will be subject to U.S. federal income Tax on the same amounts and in the same manner and at the same times as beneficial owners would have been subject to U.S. federal income Tax if such deposit and defeasance had not occurred (and in the case of legal defeasance only, such Opinion of Counsel must be based on a ruling of the U.S. Internal Revenue Service or change in applicable U.S. federal income Tax law occurring after the issuance of the Notes);
(3) the Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying, defrauding or preferring any creditors of the Company; and
(4) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, subject to customary assumptions and exclusions, the beneficial owners of the Notes, in their capacity as holders of the Notes, will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(5) no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit;
(6) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under the Credit Facilities or any other material agreement or instrument (other than this Indenture) to which, the Company or any Guarantor is a party or by which the Company or any Guarantor is bound;
(7) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel (which opinion of counsel may be subject to customary assumptions and exclusions and may rely on any Officer’s Certificate as to matters of fact), each stating that all conditions precedent provided for or relating to legal defeasance or covenant defeasance, as the case may be, have been complied with.
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Section 8.5. Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions. Subject to Section 8.6, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.5, the “Trustee”) pursuant to Section 8.4 in respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agents) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium and interest, but such money need not be segregated from other funds except to the extent required by law.
The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or U.S. Government Obligations deposited pursuant to Section 8.4 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.
Notwithstanding anything in this Article VIII to the contrary, the Trustee will deliver or pay to the Company from time to time upon the request of the Company any money or U.S. Government Obligations held by it as provided in Section 8.4 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.4(1)), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.6. Repayment to the Company. Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium or interest on, any Note and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company on their written request unless an abandoned property law designates another Person or (if then held by the Company) will be discharged from such trust; and the Holder of such Note will thereafter be permitted to look only to the Company for payment thereof unless an abandoned property law designates another Person, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustees thereof, will thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company cause to be published once, in The New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 8.7. Reinstatement. If the Trustee or Paying Agent is unable to apply any money or U.S. Dollars or U.S. Government Obligations in accordance with Section 8.2 or Section 8.3, as the case may be, by reason of any order or judgment of any court or Governmental Authority enjoining, restraining or otherwise prohibiting such application, then the Company’s and the Guarantors’ obligations under this Indenture and the Notes and the Note Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.2 or Section 8.3 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.2 or Section 8.3, as the case may be; provided, however, that, if the Company make any payment of principal of, premium or interest on, any Note following the reinstatement of its obligations, the Company will be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.
Article IX AMENDMENTS
Section 9.1. Without Consent of Holders. Notwithstanding Section 9.2, the Company, any Guarantor (with respect to its Note Guarantee or this Indenture), as applicable, the Trustee, the Notes Collateral Agent and the other parties thereto, as applicable, may amend, supplement or modify this Indenture and any other Note Documents and the Company may direct the Trustee or the Notes Collateral Agent to enter, and the Trustee or the Notes Collateral Agent shall enter into an amendment to the Note Documents, without the consent of any Holder, to:
(1) cure any ambiguity, omission, mistake, defect, error or inconsistency, conform any provision to any provision under the heading “Description of the Notes” in the Offering Memorandum or reduce the minimum denomination of the Notes;
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(2) provide for the assumption by a successor Person of the obligations of the Company or a Guarantor under any Note Document or to comply with Section 4.1;
(3) provide for uncertificated Notes in addition to or in place of certificated Notes or to alter the provisions of this Indenture relating to the form of the Notes (including related definitions);
(4) add to or modify the covenants or provide for a Note Guarantee for the benefit of the Holders or surrender any right or power conferred upon the Company or any Restricted Subsidiary;
(5) make any change (including changing the CUSIP or other identifying number on any Notes) that would provide any additional rights or benefits to the Holders or that does not adversely affect the rights of any Holder in any material respect;
(6) at the Company’s election, comply with any requirement of the SEC in connection with the qualification of this Indenture under the Trust Indenture Act, if such qualification is required;
(7) make such provisions as necessary for the issuance of Additional Notes in accordance with the terms of this Indenture;
(8) provide for any Restricted Subsidiary to provide a Note Guarantee in accordance with Section 3.2 or grant a Lien in accordance with Section 3.6, to add Guarantees with respect to the Notes, to add security to or for the benefit of the Notes, or to confirm and evidence the release, termination, discharge or retaking of any Guarantee or Lien with respect to or securing the Notes when such release, termination, discharge or retaking is provided for under the Note Documents;
(9) evidence and provide for the acceptance and appointment under this Indenture of a successor Trustee, Notes Collateral Agent or successor Paying Agent hereunder pursuant to the requirements hereof or to provide for the accession by the Trustee or Notes Collateral Agent to any Note Document;
(10) to add or release Collateral from, or subordinate, the Notes Liens when permitted or required by the Note Documents;
(11) add an obligor or a Guarantor under this Indenture;
(12) make any amendment to the provisions of this Indenture relating to the transfer and legending of Notes not prohibited by this Indenture, including to facilitate the issuance and administration of Notes; provided, however, that such amendment does not materially and adversely affect the rights of Holders to transfer the Notes;
(13) mortgage, pledge, hypothecate or grant any other Lien in favor of the Notes Collateral Agent for its benefit and the benefit of the Trustee, the Holders and the holders of any future Secured Pari Passu Indebtedness, as additional security for the payment and performance of all or any portion of the Notes Obligations, in any property or assets, including any which are required to be mortgaged, pledged or hypothecated, or in which a Lien is required to be granted to or for the benefit of the Trustee or the Notes Collateral Agent pursuant to the Note Documents or otherwise;
(14) to secure additional Secured Pari Passu Indebtedness and add additional secured creditors holding other Secured Pari Passu Indebtedness so long as such Secured Pari Passu Indebtedness is not prohibited by the provisions of the Note Documents;
(15) comply with the rules and procedures of any applicable securities depositary; and
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(16) make any amendment to the provisions of this Indenture, the Guarantees and/or the Notes to eliminate the effect of any Accounting Change or in the application thereof as described in the last paragraph of the definition of “GAAP.”
The First Lien Intercreditor Agreement and the Collateral Documents may be amended without notice to or the consent of any Holder, the Trustee or the Notes Collateral Agent in connection with the entry into the First Lien Intercreditor Agreement or any other Applicable Intercreditor Arrangements or any such Collateral Documents of any class of additional secured creditors holding other Secured Pari Passu Indebtedness in a transaction permitted under this Indenture.
The Company and the Guarantors, if applicable, in the execution of any amended or supplemental indenture or amendment or supplement to the Note Documents unless such amended or supplemental indenture affects the Trustee’s or Notes Collateral Agent’s own rights, duties or immunities under this Indenture, the other Note Documents or otherwise, in which case the Trustee and Notes Collateral Agent, if applicable, may in their discretion, but will not be obligated to, enter into such amended or supplemental indenture or amendment or supplement to the Note Documents.
Section 9.2. With Consent of Holders.
(a) Except as provided in this Section 9.2, the Company, the Guarantors, the Trustee and the Notes Collateral Agent may amend, supplement or otherwise modify the Note Documents with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding, including, without limitation, consents obtained before or after a Change of Control or in connection with a purchase of, or tender offer or exchange offer for, Notes, and, subject to Section 6.4 and Section 6.7, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium, if any, or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of the Note Documents may be waived with the consent of the Holders of at least of a majority in aggregate principal amount of then outstanding Notes (including consents obtained before or after a Change of Control or in connection with a purchase of or tender offer or exchange offer for Notes). Section 2.12 and Section 14.5 shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.2. Upon the request of the Company, and upon delivery to the Trustee of evidence of the consent of the Holders as aforesaid, and upon receipt by the Trustee of the documents described in Section 9.6 and Section 14.3, the Trustee will join with the Company and the Guarantors in the execution of such amended or supplemental indenture or other amendment to the Note Documents unless such amended or supplemental indenture or other amendment to the Note Documents affects the Trustee’s own rights, duties, liabilities 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 amendment to the Note Documents.
Upon the request of the Company, and upon the filing with the Trustee and Notes Collateral Agent, as applicable, of evidence of the consent of the Holders as aforesaid, and upon receipt by the Trustee and Notes Collateral Agent of the documents described in Section 9.6 and Section 14.3, the Trustee and Notes Collateral Agent, if applicable, shall join with The Company and the Guarantors, if applicable, in the execution of any amended or supplemental indenture or amendment or supplement to the Note Documents unless such amended or supplemental indenture or amendment or supplement to the Note Documents affects the Trustee’s or Notes Collateral Agent’s own rights, duties or immunities under this Indenture, the Note Documents or otherwise, in which case the Trustee and Notes Collateral Agent, if applicable, may in their discretion, but will not be obligated to, enter into such amended or supplemental indenture or amendment or supplement to the Note Documents.
(b) Without the consent of each Holder affected, an amendment, supplement or waiver may not, with respect to any Notes issued thereunder and held by a nonconsenting Holder:
(1) reduce the principal amount of such Notes whose Holders must consent to an amendment;
(2) reduce the stated rate of or extend the stated time for payment of interest on any such Note (other than provisions relating to Section 3.5 and Section 3.9);
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(3) reduce the principal of or extend the Stated Maturity of any such Note (other than provisions relating to Section 3.5 and Section 3.9);
(4) reduce the premium payable upon the redemption of any such Note or change the time at which any such Note may be redeemed, in each case as set forth in Section 5.7;
(5) make any such Note payable in currency other than that stated in this Indenture of such Note;
(6) impair the contractual right of any Holder to institute suit for the enforcement of any payment of principal of and interest on such Holder’s Notes on or after the due dates therefor;
(7) waive a Default or Event of Default with respect to the nonpayment of principal, premium or interest (except pursuant to a rescission of acceleration of the Notes by the Holders of at least a majority in principal amount of such Notes outstanding and a waiver of the payment default that resulted from such acceleration);
(8) make any change in the amendment or waiver provisions which require the Holders’ consent described in this sentence; or
(9) make any change to or modify the ranking of the Notes or the Note Guarantees that would adversely affect the Holders.
Notwithstanding the foregoing, without the consent of the Holders of at least 66-2/3% in aggregate principal amount of the Notes then outstanding, no amendment or waiver may make any change in any Collateral Document or the provisions in this Indenture dealing with Collateral or application of trust proceeds of the Collateral, in each case with the effect of (i) releasing the Liens on all or substantially all of the Collateral which secure the Notes Obligations or (ii) changing or altering the priority of the Notes Liens in any material portion of the Collateral in any way materially adverse, taken as a whole, to the Holders, other than, in each case, as provided under the terms of this Indenture, the Collateral Documents or the Intercreditor Agreement.
It shall not be necessary for the consent of the Holders under this Indenture to approve the particular form of any proposed amendment, supplement or waiver, but it shall be 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 tender or exchange of such Holder’s Notes will not be rendered invalid by such tender or exchange.
Section 9.3. [Reserved].
Section 9.4. Revocation and Effect of Consents and Waivers.
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 of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent or waiver is not made on any Note. However, any such Holder or subsequent Holder may revoke the consent or waiver as to such Holder’s Note or portion of 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 Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described in this Section 9.4 or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record date.
Section 9.5. Notation on or Exchange of Notes. The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee shall, upon receipt of an Issuer 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.
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Section 9.6. Trustee and Notes Collateral Agent to Sign Amendments. The Trustee and Notes Collateral Agent shall sign any amended or supplemental indenture authorized pursuant to this Article IX if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee and Notes Collateral Agent. In executing any amended or supplemental indenture, the Trustee and the Notes Collateral Agent shall receive and (subject to Section 7.1 and Section 7.2) shall be fully protected in conclusively relying upon, in addition to the documents required by Section 14.3, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture or amendment or supplement to the Note Documents is authorized or permitted by this Indenture and is valid, binding and enforceable against the Company or any Guarantor, as the case may be, in accordance with its terms. Notwithstanding the foregoing, no Opinion of Counsel shall be required in connection with the execution and delivery of a supplemental indenture in the form of Exhibit B hereto by Shutterstock and its Subsidiaries as required by Section 3.7(b) hereof.
Article X GUARANTEE
Section 10.1. Guarantee. Subject to the provisions of this Article X, each Guarantor hereby fully, unconditionally and irrevocably guarantees (the “Note Guarantees”), as primary obligor and not merely as surety, jointly and severally with each other Guarantor, to each Holder, the Trustee and the Notes Collateral Agent, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes, fees, expenses, indemnities and all other Obligations and liabilities of the Company under this Indenture (including without limitation Post-Petition Interest accruing after the filing of any petition or application in bankruptcy, or the commencement of any other Insolvency or Liquidation Proceeding, reorganization or like proceeding, relating to the Company or any Guarantor whether or not a claim for post-filing or Post-Petition Interest is allowed in such proceeding and the obligations under Section 7.6 and Section 12.9(aa)) (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor agrees that the Guaranteed Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guaranteed Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness.
To evidence its Note Guarantee set forth in this Article X, each Guarantor hereby agrees that this Indenture shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
Each Guarantor hereby agrees that its Note Guarantee set forth in this Article X shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.
If an Officer whose signature is on this Indenture no longer holds that office at the time the Trustee authenticates the Note, the Note Guarantee shall be valid nevertheless.
Each Guarantor further agrees (to the extent permitted by law) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guaranteed Obligations.
Each Guarantor further agrees that its Note Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
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Except as set forth in Section 10.2, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the Guaranteed Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guaranteed Obligations; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Company; (g) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 10.2, Article VIII, Article VIII or Article XI. Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded, avoided, or must otherwise be restored by any Holder upon or in connection with the bankruptcy, insolvency or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Guaranteed Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including Post-Petition Interest accruing after the filing of any petition or application in bankruptcy or the commencement of any Insolvency or Liquidation Proceeding, reorganization or like proceeding relating to the Company or any Guarantor whether or not a claim for post-filing or Post-Petition Interest is allowed in such proceeding).
Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein and (y) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Note Guarantee.
Each Guarantor also agrees to pay any and all fees and reasonable out-of-pocket, costs and expenses (including attorneys’ fees and expenses) incurred by the Notes Collateral Agent, Trustee or the Holders in enforcing any rights under this Section 10.1.
Section 10.2. Limitation on Liability; Termination, Release and Discharge.
(a) Any term or provision of this Indenture to the contrary notwithstanding, the obligations of each Guarantor hereunder will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Note Guarantee or pursuant to its contribution obligations under this Indenture, not render the obligations of such Guarantor under its Note Guarantee subject to avoidance under applicable law as a fraudulent conveyance, fraudulent transfer or unjust preference, including under federal, foreign, state or provincial law and otherwise being void or voidable under any similar laws affecting the rights of creditors generally.
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(b) Any Note Guarantee of a Guarantor shall be automatically and unconditionally released and discharged:
(1) upon a sale, exchange, transfer or other disposition (including by way of merger, amalgamation, consolidation, dividend, distribution or otherwise) of the Capital Stock of such Subsidiary Guarantor or the sale, exchange, transfer or other disposition, of all or substantially all of the assets of the Guarantor, in each case, to any Person other than to the Company or a Restricted Subsidiary and as otherwise not prohibited by this Indenture;
(2) upon the designation in accordance with this Indenture of the Subsidiary Guarantor as an Unrestricted Subsidiary or the occurrence of any event after which the Guarantor is no longer a Restricted Subsidiary;
(3) upon defeasance or discharge of the Notes, as provided in Article VIII or Article XI;
(4) to the extent that such Guarantor is not an Immaterial Subsidiary solely due to the operation of clause (i) of the definition of “Immaterial Subsidiary,” upon the release of the guarantee referred to in such clause;
(5) such Guarantor being (or being substantially concurrently) released or discharged from all of its Guarantees of payment (i) by the Company of any Indebtedness of the Company under the Credit Agreement or (ii) in the case of a Note Guarantee made by a Guarantor (each, an “Other Guarantee”) as a result of its guarantee of other Indebtedness of the Company or a Guarantor pursuant to Section 3.7 by the Company or the applicable Guarantor of the relevant Indebtedness, except in the case of (i) or (ii), a release as a result of payment under such Guarantee (it being understood that a release subject to a contingent reinstatement is still considered a release);
(6) the merger, amalgamation or consolidation of any Guarantor with and into the Company or another Guarantor or upon the liquidation of such Guarantor, in each case, in compliance with the applicable provisions of this Indenture; or
(7) as described under Article IX or in accordance with the provisions of the Intercreditor Agreements.
(c) If as a result of a transaction permitted under this Indenture any Subsidiary Guarantor is to be released from its Note Guarantee solely as a result of becoming not wholly owned directly by the Company or one or more of its wholly owned Restricted Subsidiaries, then such Subsidiary Guarantor shall not be released from its Note Guarantee unless such transaction is consummated in good faith for fair market value with a bona fide third party that is not an Affiliate and for a bona fide business purpose (in each case, as determined by the Company in good faith).
Section 10.3. Right of Contribution. Each Guarantor hereby agrees that to the extent that any Guarantor shall have paid more than its proportionate share of any payment made on the obligations under the Note Guarantees, such Guarantor shall be entitled to seek and receive contribution from and against the Company or any other Guarantor who has not paid its proportionate share of such payment. The provisions of this Section 10.3 shall in no respect limit the obligations and liabilities of each Guarantor to the Trustee, the Notes Collateral Agent and the Holders and each Guarantor shall remain liable to the Trustee, the Notes Collateral Agent and the Holders for the full amount guaranteed by such Guarantor hereunder.
Section 10.4. No Subrogation. Notwithstanding any payment or payments made by each Guarantor hereunder, no Guarantor shall be entitled to be subrogated to any of the rights of the Trustee, the Notes Collateral Agent or any Holder against the Company or any other Guarantor or any collateral security or guarantee or right of offset held by the Trustee, the Notes Collateral Agent or any Holder for the payment of the Guaranteed Obligations, nor shall any Guarantor seek or be entitled to seek any contribution or reimbursement from the Company or any other Guarantor in respect of payments made by such Guarantor hereunder, until all amounts owed to the Trustee, the Notes Collateral Agent and the Holders by the Company on account of the Guaranteed Obligations are paid in full. If any amount shall be paid to any Guarantor on account of such subrogation rights at any time when all of the Guaranteed Obligations shall not have been paid in full, such amount shall be held by such Guarantor in trust for the Trustee, the Notes Collateral Agent and the Holders, segregated from other funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over to the Trustee in the exact form received by such Guarantor (duly indorsed by such Guarantor to the Trustee, if required), to be applied against the Guaranteed Obligations.
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Article XI SATISFACTION AND DISCHARGE
Section 11.1. Satisfaction and Discharge. This Indenture will be discharged and will cease to be of further effect as to all Notes issued hereunder, and the Liens, if any, on the Collateral securing the Notes will be released, when:
(a) either:
(1) all the Notes previously authenticated and delivered (other than certain lost, stolen or destroyed Notes and certain Notes for which provision for payment was previously made and thereafter the funds have been released to the Company) have been delivered to the Trustee for cancellation; or
(2) all such Notes not theretofore delivered to the Trustee for cancellation (i) have become due and payable by reason of the making of a notice of redemption or otherwise or (ii) will become due and payable within one year at their Stated Maturity or (iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company;
(b) the Company has deposited or caused to be deposited with the Trustee, money in Dollars or U.S. Government Obligations, or a combination thereof, as applicable, in an amount sufficient to pay and discharge the entire indebtedness on the Notes not previously delivered to the Trustee for cancellation, for principal, premium, if any, and interest to the date of deposit (in the case of Notes that have become due and payable), or to the Stated Maturity or Redemption Date, as the case may be; provided that upon any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee equal to the Applicable Premium calculated as of the date of the notice of redemption, as calculated by the Company or on behalf of the Company by such Person as the Company shall designate, with any Applicable Premium Deficit only required to be deposited with the Trustee on or prior to the date of redemption, and any Applicable Premium Deficit shall be set forth in an Officer’s Certificate delivered to the Trustee at least two Business Days prior to the deposit of such Applicable Premium Deficit that confirms that such Applicable Premium Deficit shall be applied toward such redemption;
(c) the Company has paid or caused to be paid all other sums payable under this Indenture;
(d) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent under this Article XI relating to the satisfaction and discharge of this Indenture have been complied with; providedthat any such counsel may rely on any Officer’s Certificate as to matters of fact (including as to compliance with clauses (a), (b) and (c)).
Notwithstanding the satisfaction and discharge of this Indenture, the indemnification rights of the Trustee and the Notes Collateral Agent under Section 7.6 and Section 12.9(aa) and the Company’s obligations with respect thereto and, if money has been deposited with the Trustee pursuant to clause (b) of this Section 11.1, the provisions of Section 11.2 and Section 8.6, will survive.
Section 11.2. Application of Trust Money. Subject to the provisions of Section 8.6, all money deposited with the Trustee pursuant to Section 11.1 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent for itself), as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee; provided that such money need not be segregated from other funds except to the extent required by law.
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If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with Section 11.1 by reason of any legal proceeding or by reason of any order or judgment of any court or Governmental Authority enjoining, restraining or otherwise prohibiting such application, the Company’s and any Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.1; provided that if the Company have made any payment of principal of, premium, if any, or interest on, any Notes because of the reinstatement of their obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.
Article XII COLLATERAL
Section 12.1. Collateral Documents. The due and punctual payment of the principal of, premium and interest on the Notes when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes and performance of all other Notes Obligations according to the terms hereunder or thereunder shall be secured as provided in the Collateral Documents, subject to the terms of the Intercreditor Agreements. The Trustee and the Company hereby acknowledge and agree that the Notes Collateral Agent holds the Collateral for the benefit of the Holders and the Trustee and pursuant to the terms of the Collateral Documents and the Intercreditor Agreements. Each Holder, by accepting a Note, consents and agrees to the terms of the Collateral Documents (including the provisions providing for the possession, use, release and foreclosure of Collateral) and the Intercreditor Agreements as the same may be in effect or may be amended from time to time in accordance with their terms and this Indenture and the Intercreditor Agreements, and authorizes and directs the Notes Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreements and to perform its obligations and exercise its rights thereunder in accordance therewith. The Company and the Guarantors shall, at their sole expense, take all actions (including the filing and recording of financing statements, continuation statements, amendments to financing statements and other documents) that may be required under applicable law, or that the Trustee or the Notes Collateral Agent reasonably requests in writing, in order to ensure the creation, perfection and priority (or continuance thereof) of the security interests created or intended to be created by the Collateral Documents, in each case subject to perfection exceptions set forth therein and subject to the Intercreditor Agreements.
Section 12.2. Perfection and Non-Perfection of Security Interests in Collateral. Subject to the terms of the Collateral Documents and the Intercreditor Agreements, the Company and the Guarantors shall, to the extent any liens on or security interests in the Collateral securing the Notes are not perfected on or prior to the Issue Date, use commercially reasonable efforts to have all such security interests perfected, to the extent required by this Indenture and the Collateral Documents, no later than 60 days after the Issue Date.
Section 12.3. Release of Liens
(a) The Liens securing the Note Guarantee of any Guarantors will be automatically released when such Guarantor’s Note Guarantee is released in accordance with the terms of this Indenture. In addition, the Liens securing the obligations under the Notes will be released, and the Trustee (subject to its receipt of the Officer’s Certificate as provided below) shall execute documents evidencing such release, or instruct the Notes Collateral Agent to execute, as applicable, the same at the Company’s sole cost and expense, under one or more of the following circumstances:
(i) in whole upon:
(A) payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, the Note Guarantees and the Collateral Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
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(B) satisfaction and discharge of this Indenture as set forth under Article XI; or
(C) a Legal Defeasance or Covenant Defeasance of this Indenture as set forth under Article VIII;
(ii) in whole or in part, with the consent of the requisite Holders of the Notes in accordance with Article IX including consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes;
(iii) in part, as to any asset constituting Collateral:
(A) that is sold or otherwise disposed of (I) by the Company or any of the Guarantors to any Person that is not the Company or a Guarantor to the extent not prohibited by this Indenture and the Collateral Documents, (II) if all other Liens on that asset securing the Credit Agreement Obligations then secured by that asset are released by the Credit Agreement Collateral Agent (other than as a result of the discharge in full of the Credit Agreement Obligations) or (III) in connection with the taking of an enforcement action by the Controlling Collateral Agent in respect of the Credit Agreement Obligations in accordance with the Intercreditor Agreements,
(B) that is held by a Guarantor that ceases to be a Guarantor,
(C) that becomes Excluded Property or
(D) that is otherwise released in accordance with, and as expressly provided for by the terms of this Indenture, the Intercreditor Agreement and the Collateral Documents;
(b) In the case of a release in accordance with Section 12.3(a), to the extent commercially practicable, the Company will deliver written notice of the release to the Trustee (it being understood that the failure to so notify the Trustee will not invalidate or otherwise affect the release or constitute a breach of any covenant, or a Default or Event of Default, hereunder). With respect to any release of Collateral, upon receipt of an Officer’s Certificate stating that all conditions precedent under this Indenture and the Collateral Documents and the Intercreditor Agreements, as applicable, to such release have been met and that it is proper for the Trustee or Notes Collateral Agent to execute and deliver the documents requested by the Company in connection with such release, and any necessary or proper instruments of termination, satisfaction, discharge or release prepared by the Company, the Trustee shall, or shall cause the Notes Collateral Agent to, execute, deliver or acknowledge (at the Company’s expense) such instruments or releases to evidence the release and discharge of any Collateral permitted to be released pursuant to this Indenture or the Collateral Documents or the Intercreditor Agreements. Neither the Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate, and notwithstanding any term hereof or in any Collateral Document or in the Intercreditor Agreements to the contrary, the Trustee and the Notes Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction, discharge or termination, unless and until it receives such Officer’s Certificate.
Section 12.4. Suits to Protect the Collateral. Subject to the provisions of Article VII and the Collateral Documents and the Intercreditor Agreement, the Trustee, without the consent of the Holders, on behalf of the Holders, may or may direct the Notes Collateral Agent to take all actions it determines in order to:
(a) enforce any of the terms of the Collateral Documents; and
(b) collect and receive any and all amounts payable in respect of the Obligations hereunder.
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Subject to the provisions of the Collateral Documents and the Intercreditor Agreements, the Trustee and the Notes Collateral Agent shall have the power to institute and to maintain such suits and proceedings as the Trustee may determine to prevent any impairment of the Collateral by any acts which may be unlawful or in violation of any of the Collateral Documents or this Indenture, and such suits and proceedings as the Trustee may determine to preserve or protect its interests and the interests of the Holders in the Collateral. Nothing in this Section 12.4 shall be considered to impose any such duty or obligation to act on the part of the Trustee or the Notes Collateral Agent.
Section 12.5. Authorization of Receipt of Funds by the Trustee Under the Collateral Documents. Subject to the provisions of the Intercreditor Agreements, the Trustee is authorized to receive any funds for the benefit of itself and the Holders distributed under the Collateral Documents, and to make further distributions of such funds to the Holders according to the provisions of this Indenture.
Section 12.6. Purchaser Protected. In no event shall any purchaser in good faith of any property purported to be released hereunder be bound to ascertain the authority of the Notes Collateral Agent or the Trustee to execute the release or to inquire as to the satisfaction of any conditions required by the provisions hereof for the exercise of such authority or to see to the application of any consideration given by such purchaser or other transferee; nor shall any purchaser or other transferee of any property or rights permitted by this Article XII to be sold be under any obligation to ascertain or inquire into the authority of the Company or the applicable Guarantor to make any such sale or other transfer.
Section 12.7. Powers Exercisable by Receiver or Trustee. In case the Collateral shall be in the possession of a receiver or trustee, lawfully appointed, the powers conferred in this Article XII upon the Company or a Guarantor with respect to the release, sale or other disposition of such property may be exercised by such receiver or trustee, and an instrument signed by such receiver or trustee shall be deemed the equivalent of any similar instrument of the Company or a Guarantor or of any Officer or Officers thereof required by the provisions of this Article XII; and if the Trustee shall be in the possession of the Collateral under any provision of this Indenture, then such powers may be exercised by the Trustee.
Section 12.8. Release Upon Termination of the Company’s obligations. In the event that the Company delivers to the Trustee an Officer’s Certificate certifying that (i) payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, the Notes, the Note Guarantees and the Collateral Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid or (ii) the Company shall have exercised their Legal Defeasance option or their Covenant Defeasance option, in each case in compliance with the provisions of Article VIII, the Trustee shall deliver to the Company and the Notes Collateral Agent a notice, in form reasonably satisfactory to the Notes Collateral Agent, stating that the Trustee, on behalf of the Holders, disclaims and gives up any and all rights it has in or to the Collateral (other than with respect to funds held by the Trustee pursuant to Article VIII), and any rights it has under the Collateral Documents, and upon receipt by the Notes Collateral Agent of such notice, the Notes Collateral Agent shall be deemed not to hold a Lien in the Collateral on behalf of the Trustee and shall do or cause to be done (at the expense of the Company) all acts reasonably requested by the Company to release and discharge such Lien as soon as is reasonably practicable.
Section 12.9. Notes Collateral Agent.
(a) The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Collateral Documents and the Intercreditor Agreements and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents and the Intercreditor Agreements, and consents and agrees to the terms of the Intercreditor Agreements and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 12.9. The provisions of this Section 12.9 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.4. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreements and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents and the Intercreditor Agreements, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Note Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
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(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents or the Intercreditor Agreements by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (a “Related Person”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, or any other Note Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents or the Intercreditor Agreements, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Company or any other Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, judgment, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
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(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 12.9).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture, the Company shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Notes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 12.9 (and Section 7.6) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture. If the Notes Collateral Agent consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Notes Collateral Agent and assume all of the rights and obligations of the Notes Collateral Agent under this Indenture, the Intercreditor Agreements and the Collateral Documents.
(g) U.S. Bank Trust Company, National Association, shall initially act as Notes Collateral Agent and shall be authorized to appoint co-Notes Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Collateral Documents or the Intercreditor Agreements, neither the Notes Collateral Agent nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The Notes Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Notes Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own gross negligence or willful misconduct.
(h) The Notes Collateral Agent and the Trustee are authorized and directed to (i) enter into (including by way of joinder or accession) the Collateral Documents to which it is party, whether executed on or after the Issue Date, (ii) enter into (including by way of joinder or accession) the Intercreditor Agreements, (iii) make the representations of the Holders set forth in the Collateral Documents and Intercreditor Agreements, (iv) bind the Holders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (v) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(i) If at any time or times the Trustee shall receive (i) by payment, foreclosure, realization, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Notes Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Notes Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article VI, the Trustee shall promptly turn the same over to the Notes Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Notes Collateral Agent such proceeds to be applied by the Notes Collateral Agent pursuant to the terms of this Indenture, the Collateral Documents and the Intercreditor Agreements.
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(j) The Notes Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon request from the Company, the Trustee shall notify the Notes Collateral Agent thereof and promptly shall deliver such Collateral to the Notes Collateral Agent or otherwise deal with such Collateral in accordance with the Notes Collateral Agent’s instructions.
(k) The Notes Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Grantor or is cared for, protected, or insured or has been encumbered, or that the Notes Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Grantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Notes Collateral Agent pursuant to this Indenture, any Collateral Document or the Intercreditor Agreements other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes or as otherwise provided in the Collateral Documents.
(l) If the Company or any Guarantor (i) incurs Secured Pari Passu Indebtedness at any time when no First Lien Intercreditor Agreement is in effect or at any time when Indebtedness constituting First Lien Obligations (as defined in the First Lien Intercreditor Agreement) entitled to the benefit of an existing First Lien Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent to enter into a pari passu Intercreditor Agreement in favor of a designated agent or representative for the holders of such Secured Pari Passu Indebtedness so incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such Intercreditor Agreement on substantially the same terms as the First Lien Intercreditor Agreement with such changes as are permitted by this Indenture without a consent of the Holders (at the sole expense and cost of the Company, including legal fees and expenses of the Trustee and the Notes Collateral Agent), bind the Holders on the terms set forth therein and perform and observe its obligations thereunder.
(m) If the Company or any Guarantor (i) incurs Secured Junior Indebtedness permitted under this Indenture and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent to enter into a junior Lien intercreditor agreement on terms that are market and customary in favor of a designated agent or representative for the holders of such Secured Junior Indebtedness, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement (at the sole expense and cost of the Company, including legal fees and expenses of the Trustee and the Notes Collateral Agent), bind the Holders on the terms set forth therein and perform and observe its obligations thereunder.
(n) No provision of this Indenture, the Intercreditor Agreements or any Collateral Document shall require the Notes Collateral Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders (or the Trustee in the case of the Notes Collateral Agent) if it shall have received indemnity satisfactory to the Notes Collateral Agent against potential costs and liabilities incurred by the Notes Collateral Agent relating thereto. Notwithstanding anything to the contrary contained in this Indenture, the Intercreditor Agreements or the Collateral Documents, in the event the Notes Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Notes Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the mortgages or take any such other action if the Notes Collateral Agent has determined that the Notes Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances unless the Notes Collateral Agent has received security or indemnity from the Holders in an amount and in a form all satisfactory to the Notes Collateral Agent in its sole discretion, protecting the Notes Collateral Agent from all such liability. The Notes Collateral Agent shall at any time be entitled to cease taking any action described in this Section 12.9(n) if it no longer reasonably deems any indemnity, security or undertaking from the Company or the Holders to be sufficient.
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(o) The Notes Collateral Agent (i) shall not be liable for any action taken or omitted to be taken by it in connection with this Indenture, the Intercreditor Agreements and the Collateral Documents or instrument referred to herein or therein, except to the extent that any of the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct, (ii) shall not be liable for interest on any money received by it except as the Notes Collateral Agent may agree in writing with the Company (and money held in trust by the Notes Collateral Agent need not be segregated from other funds except to the extent required by law) and (iii) may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Notes Collateral Agent shall not be construed to impose duties to act.
(p) Neither the Notes Collateral Agent nor the Trustee shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, pandemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Notes Collateral Agent nor the Trustee shall be liable for any indirect, special, punitive, incidental or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
(q) The Notes Collateral Agent does not assume any responsibility for any failure or delay in performance or any breach by the Company or any other Grantor under this Indenture, the Intercreditor Agreements and the Collateral Documents. The Notes Collateral Agent shall not be responsible to the Holders or any other Person for any recitals, statements, information, representations or warranties contained in any Note Documents or in any certificate, report, statement, or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Intercreditor Agreements or any Collateral Document; the execution, validity, genuineness, effectiveness or enforceability of the Intercreditor Agreements and any Collateral Documents of any other party thereto; the genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral, or the validity, effectiveness, enforceability, sufficiency, extent, perfection or priority of any Lien therein; the validity, enforceability or collectability of any Obligations; the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any obligor; or for any failure of any obligor to perform its Obligations under this Indenture, the Intercreditor Agreements and the Collateral Documents. The Notes Collateral Agent shall have no obligation to any Holder or any other Person to ascertain or inquire into the existence of any Default or Event of Default, the observance or performance by any obligor of any terms of this Indenture, the Intercreditor Agreements and the Collateral Documents, or the satisfaction of any conditions precedent contained in this Indenture, the Intercreditor Agreements and any Collateral Documents. The Notes Collateral Agent shall not be required to initiate or conduct any litigation or collection or other proceeding under this Indenture, the Intercreditor Agreements and the Collateral Documents unless expressly set forth hereunder or thereunder. The Notes Collateral Agent shall have the right at any time to seek instructions from the Holders with respect to the administration of the Note Documents.
(r) The parties hereto and the Holders hereby agree and acknowledge that the Notes Collateral Agent shall not assume, be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including but not limited to, any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result of this Indenture, the Intercreditor Agreements, the Collateral Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture, the Intercreditor Agreements and the Collateral Documents, the Notes Collateral Agent may hold or obtain indicia of ownership primarily to protect the security interest of the Notes Collateral Agent in the Collateral and that any such actions taken by the Notes Collateral Agent shall not be construed as or otherwise constitute any participation in the management of such Collateral.
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(s) Upon the receipt by the Notes Collateral Agent of a written request of the Company signed by one Officer of the Issuer (a “Collateral Document Order”), the Notes Collateral Agent is hereby authorized to execute and enter into, and shall execute and enter into, without the further consent of any Holder or the Trustee, any Collateral Document to be executed after the Issue Date. Such Collateral Document Order shall (i) state that it is being delivered to the Notes Collateral Agent pursuant to, and is a Collateral Document Order referred to in, this Section 12.9(s), and (ii) instruct the Notes Collateral Agent to execute and enter into such Collateral Document. Any such execution of a Collateral Document shall be at the direction and expense of the Company, upon delivery to the Notes Collateral Agent of an Officer’s Certificate stating that all conditions precedent to the execution and delivery of the Collateral Document have been satisfied. The Holders, by their acceptance of the Notes, hereby authorize and direct the Notes Collateral Agent to execute such Collateral Documents.
(t) Subject to the provisions of the applicable Collateral Documents and the Intercreditor Agreements, each Holder, by acceptance of the Notes, agrees that the Notes Collateral Agent shall execute and deliver the Intercreditor Agreements and the Collateral Documents to which it is a party (or joinders thereto) and all agreements, documents and instruments incidental thereto, and act in accordance with the terms thereof. For the avoidance of doubt, except as expressly set forth herein, the Notes Collateral Agent shall have no discretion under this Indenture, the Intercreditor Agreements or the Collateral Documents and shall not be required to make or give any determination, consent, approval, request or direction without the written direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes or the Trustee, as applicable.
(u) After the occurrence of an Event of Default, the Trustee may direct the Notes Collateral Agent in connection with any action required or permitted by this Indenture, the Collateral Documents or the Intercreditor Agreements.
(v) The Notes Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Collateral Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, for turnover to the Trustee to make further distributions of such funds to itself, the Trustee and the Holders in accordance with the provisions of Section 6.10 and the other provisions of this Indenture.
(w) Subject to the terms of the Collateral Documents, in each case that the Notes Collateral Agent may or is required hereunder or under any other Note Document to take any action (an “Action”), including without limitation to make any determination, to give consents, to exercise rights, powers or remedies, to release or sell Collateral or otherwise to act hereunder or under any other Note Document, the Notes Collateral Agent may seek direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes. The Notes Collateral Agent shall not be liable with respect to any Action taken or omitted to be taken by it in accordance with the direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes. Subject to the terms of the Collateral Documents, if the Notes Collateral Agent shall request direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes with respect to any Action, the Notes Collateral Agent shall be entitled to refrain from such Action unless and until the Notes Collateral Agent shall have received direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes, and the Notes Collateral Agent shall not incur liability to any Person by reason of so refraining.
(x) Notwithstanding anything to the contrary in this Indenture or any other Note Document, in no event shall the Notes Collateral Agent or the Trustee be responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security interests or Liens intended to be created by this Indenture or the other Note Documents (including without limitation the filing or continuation of any UCC financing or continuation statements or similar documents or instruments), nor shall the Notes Collateral Agent or the Trustee be responsible for, and neither the Notes Collateral Agent nor the Trustee makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(y) Before the Notes Collateral Agent acts or refrains from acting in each case at the request or direction of the Company or the Guarantors, it may require an Officer’s Certificate and an Opinion of Counsel, which shall conform to the provisions of Section 14.4. Notwithstanding the foregoing, no Opinion of Counsel shall be required in connection with the execution and delivery of a supplemental indenture in the form of Exhibit B hereto by Shutterstock and its Subsidiaries as required by Section 3.7(b) hereof. The Notes Collateral Agent shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion.
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(z) Notwithstanding anything to the contrary contained herein, the Notes Collateral Agent shall act pursuant to the instructions of the Holders and the Trustee solely with respect to the Collateral Documents and the Collateral.
(aa) The Company shall pay compensation to, reimburse expenses of and indemnify the Notes Collateral Agent in accordance with Section 7.6, with references in such section to “Trustee” deemed to be references to “Notes Collateral Agent.”
Section 12.10. Designations. For purposes of the provisions hereof and the Intercreditor Agreements requiring the Company to designate Indebtedness hereunder or under the Intercreditor Agreements, any such designation shall be sufficient if such requirements under such Intercreditor Agreement are satisfied.
Section 12.11. No Impairment of the Security Interests. Except as otherwise permitted under this Indenture, the Intercreditor Agreements and the Collateral Documents, neither the Company nor any of the Guarantors will be permitted to take any action, or knowingly omit to take any action, which action or omission would have the result of materially impairing the validity of the security interest with respect to the Collateral for the benefit of the Trustee, the Notes Collateral Agent and the Holders of the Notes.
Section 12.12. Insurance. The Company shall use its commercially reasonable efforts to maintain insurance, and shall use commercially reasonable efforts to cause each of its Restricted Subsidiaries to maintain insurance, with financially sound and reputable insurers (using commercially reasonable efforts to name the Notes Collateral Agent as an additional insured or loss payee, as applicable, no later than sixty (60) days after the Issue Date), with respect to such of its properties, against such risks, casualties and contingencies and in such types and amounts as are consistent with sound business practice, it being understood that this Section 12.12 shall not prevent the use of deductible or excess loss insurance and shall not prevent (i) the Company or any of its Subsidiaries from acting as a self-insurer or maintaining insurance with another Subsidiary or Subsidiaries of the Company so long as such action is consistent with sound business practice or (ii) the Company from obtaining and owning insurance policies covering activities of its Subsidiaries. Notwithstanding the foregoing, the Company and each of the Restricted Subsidiaries will not be required to take any action pursuant to this Section 12.12 unless and to the extent the same is required pursuant to the Credit Agreement.
Article XIII Escrow Matters
Section 13.1. Escrow Account
(a) On the Issue Date, the Company will enter into an escrow agreement (as amended, supplemented or modified from time to time, the “Escrow Agreement”) among the Company, the Trustee and U.S. Bank National Association, as escrow agent (in such capacity, together with its successors, the “Escrow Agent”), pursuant to which an amount equal to the gross proceeds of the offering of the Notes issued under the Indenture on the Issue Date will be deposited into a segregated escrow account (the “Escrow Account”) pending the consummation of the Merger. By its acceptance of the Notes, each Holder shall be deemed to authorize and direct the Trustee to execute, deliver and perform its obligations under the Escrow Agreement.
(b) The Escrow Account shall not include cash to fund any accrued and unpaid interest owing to Holders of the Notes, which is included in the Special Mandatory Redemption Price. The initial funds deposited in the Escrow Account, and all other funds, securities, interest, dividends, distributions, earnings and other property and payments credited to the Escrow Account in connection with the Notes (less any property and/or funds paid in accordance with the Escrow Agreement) are referred to, collectively, as the “Escrowed Property.” The Escrowed Property shall be the property of the Escrow Agent and shall be controlled by the Escrow Agent, on behalf of the Trustee and the Holders of the Notes.
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(c) In the event that the Escrowed Property is at any time insufficient to fund the Special Mandatory Redemption Price, if applicable, the Issuer shall deposit (or cause to be deposited) into the Escrow Account an amount sufficient to fully fund the Special Mandatory Redemption Price. For the avoidance of doubt, the Issuer is not hereby obligated to prefund the Escrow Account with any accrued and unpaid interest that may be payable upon a Mandatory Redemption Event.
Section 13.2. Release of Escrowed Property.
(a) The release of the proceeds in the Escrow Account to the Company to consummate the Merger (the “Escrow Release”) (the date of such release being the “Escrow Release Date”) will be subject to the satisfaction of certain conditions precedent set forth in the Escrow Agreement.
(b) The Company will only be entitled to cause the Escrow Agent to release the Escrowed Property for the Escrow Release upon delivery to the Escrow Agent and the Trustee, on or prior to the Escrow Outside Date, of an Officer’s Certificate (the “Escrow Release Officer’s Certificate”), upon which both the Escrow Agent and the Trustee shall be entitled to rely absolutely without further investigation, that the following conditions will be met substantially concurrently with or promptly following the Escrow Release on the Escrow Release Date:
(1) funds held in the Escrow Account will be used to consummate, or in connection with the consummation or financing of, the Merger,
(2) the Merger will be consummated substantially concurrently with the release of the funds from the Escrow Account and
(3) the conditions set forth in the Escrow Agreement shall have been, or substantially concurrently shall be, satisfied or waived.
Section 13.3. Special Mandatory Redemption.
If the Merger is not consummated on or prior to October 6, 2026 (the “Escrow Outside Date”), or upon the occurrence of certain other events, none of the Escrowed Property will be released to the Company to consummate the Merger but instead will be released to the Trustee for the purpose of redeeming all of the Notes pursuant to Section 5.8 hereof.
Section 13.4. Trustee Direction to Execute Escrow Agreement.
The Trustee is hereby authorized and directed to execute and deliver the Escrow Agreement. The Company shall grant the Trustee, for its benefit and the benefit of the Holders, subject to certain liens of the Escrow Agent, a first-priority security interest in the Escrow Account and the Escrowed Property to secure the payment of the Special Mandatory Redemption Price of the Notes; provided, however, that such liens and security interests shall automatically be released and terminated on the Escrow Account and Escrowed Property at such time as the Escrowed Property is released from the Escrow Account.
Article XIV Miscellaneous
Section 14.1. Notices.
Any notice, request, direction, consent or communication made pursuant to the provisions of this Indenture or the Notes shall be in writing and delivered in person, sent by facsimile, sent by electronic mail in pdf format, delivered by commercial courier service or mailed by first-class mail, postage prepaid, addressed as follows:
if to the Company:
Getty Images, Inc.
605 Fifth Avenue S, Suite 400
Seattle, WA 98104
Facsimile No.: 206-925-5622
Phone No.: 206-925-7105
Attention: General Counsel
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in each case, with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West, 395 9th Ave
New York, NY 10001
Attention: Ryan Dzierniejko
Noel Hughes
if to the Trustee, at its corporate trust office, which corporate trust office for purposes of this Indenture is at the date hereof located at:
U.S. Bank Trust Company, National Association
100 Wall St STE 600
New York, NY 10005
Attn: Global Corporate Trust
if to the Notes Collateral Agent, at its corporate trust office, which corporate trust office for purposes of this Indenture is at the date hereof located at:
U.S. Bank Trust Company, National Association
100 Wall St STE 600
New York, NY 10005
Attn: Global Corporate Trust
The Company, the Trustee or the Notes Collateral Agent by written notice to each other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication to the Company or the Guarantors shall be deemed to have been given or made as of the date so delivered if personally delivered or if delivered electronically, in pdf format; when receipt is acknowledged, if telecopied; and five calendar days after mailing if sent by registered or certified mail, postage prepaid (except that a notice of change of address shall not be deemed to have been given until actually received by the addressee). Any notice or communication to the Trustee or the Notes Collateral Agent shall be deemed delivered upon receipt.
Any notice or communication sent to a Holder shall be delivered to the Holder at the Holder’s address as it appears in the Notes Register and shall be sufficiently given if so sent within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is sent in the manner provided above, it is duly given, whether or not the addressee receives it, except that notices to the Trustee or the Notes Collateral Agent shall be effective only upon receipt.
Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event (including any notice of redemption or purchase) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to DTC (or its designee) pursuant to the standing instructions from DTC or its designee.
Section 14.2. [Reserved].
Section 14.3. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company or any of the Guarantors to the Trustee or the Notes Collateral Agent to take or refrain from taking any action under this Indenture, the Notes or the Collateral Documents, the Company or such Guarantor, as the case may be, shall furnish to the Trustee and, if such action related to a Collateral Document, the Notes Collateral Agent an Officer’s Certificate and an Opinion of Counsel (which shall include the statements set forth in Section 14.4) stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture, the Notes or the Collateral Documents relating to the proposed action have been satisfied. Notwithstanding the foregoing, no Opinion of Counsel under this Section will be required (i) in connection with the issuance of the Initial Notes on the Issue Date, (ii) in connection with a release permitted by Section 12.3 and Section 12.8 or (iii) in connection with the execution and delivery of a supplemental indenture in the form of Exhibit B hereto by Shutterstock and its Subsidiaries as required by Section 3.7(b) hereof.
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Section 14.4. Statements Required in Certificate and Opinion. Each certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture, the Notes or Collateral Documents shall include:
(1) a statement that the individual making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such individual, such covenant or condition has been complied with.
In giving such Opinion of Counsel, counsel may rely as to factual matters on an Officer’s Certificate or on certificates of public officials.
Section 14.5. When Notes Disregarded. In determining whether the Holders of the required aggregate principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by an Issuer, any Guarantor or any Affiliate of them shall be disregarded and deemed not to be outstanding, except that, for the purpose of determining whether the Trustee or Notes Collateral Agent shall be protected in relying on any such direction, waiver or consent, only Notes which a Responsible Officer of the Trustee or Notes Collateral Agent, as applicable, actually knows are so owned shall be so disregarded. Also, subject to the foregoing, only Notes outstanding at the time shall be considered in any such determination.
Section 14.6. Rules by Trustee, Paying Agent and Registrar . The Trustee may make reasonable rules for action by, or at meetings of, Holders. The Registrar and the Paying Agent may make reasonable rules for their functions.
Section 14.7. Legal Holidays. A “Legal Holiday” is a Saturday, a Sunday or other day on which commercial banking institutions are authorized or required to be closed in New York, New York or the jurisdiction of the place of payment. If a payment date, including any Redemption Date, is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.
Section 14.8. Governing Law. THIS INDENTURE, THE NOTES, THE NOTE GUARANTEES, THE COLLATERAL DOCUMENTS AND THE INTERCREDITOR AGREEMENTS SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 14.9. Jurisdiction. The Company and the Guarantors agree that any suit, action or proceeding against the Company or any Guarantor brought by any Holder or the Trustee arising out of or based upon this Indenture, the Notes, including any Note Guarantees, the Collateral Documents or the Intercreditor Agreements may be instituted in any state or Federal court in the Borough of Manhattan, New York, New York, and any appellate court from any thereof, and each of them irrevocably submits to the exclusive jurisdiction of such courts in any suit, action or proceeding. The Company and the Guarantors irrevocably waive, to the fullest extent permitted by law, any objection to any suit, action, or proceeding that may be brought in connection with this Indenture, the Note Guarantees, the Collateral Documents, the Intercreditor Agreements or the Notes, including such actions, suits or proceedings relating to securities laws of the United States of America or any state thereof, in such courts whether on the grounds of venue, residence or domicile or on the ground that any such suit, action or proceeding has been brought in an inconvenient forum. The Company and the Guarantors agree that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Company or the Guarantors, as the case may be, and may be enforced in any court to the jurisdiction of which the Company or the Guarantors, as the case may be, are subject by a suit upon such judgment.
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Section 14.10. Waivers of Jury Trial. EACH OF THE COMPANY, THE GUARANTORS, THE TRUSTEE AND THE NOTES COLLATERAL AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, ANY NOTE GUARANTEES, THE COLLATERAL DOCUMENTS OR THE INTERCREDITOR AGREEMENTS AND FOR ANY COUNTERCLAIM THEREIN.
Section 14.11. USA PATRIOT Act. The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “USA PATRIOT Act”), the Trustee and the Notes Collateral Agent, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account. The parties to this Indenture agree that they will provide the Trustee and the Notes Collateral Agent with such information as each may request in order to satisfy the requirements of the USA PATRIOT Act.
Section 14.12. No Recourse Against Others. No past, present or future director, officer, employee, incorporator or shareholder of the Company or any of its Subsidiaries or Affiliates, as such, shall have any liability for any obligations of the Company or the Guarantors under the Notes, the Note Guarantees, the Collateral Documents, the Intercreditor Agreements or this Indenture 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 federal securities laws and it is the view of the SEC that such a waiver is against public policy.
Section 14.13. Successors All agreements of the Company and each Guarantor in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successors.
Section 14.14. Multiple Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile, pdf or other electronic transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile, pdf or other electronic methods shall be deemed to be their original signatures for all purposes.
Section 14.15. [Reserved].
Section 14.16. Table of Contents; Headings. 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 intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
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Section 14.17. Force Majeure. In no event shall the Trustee or the Notes Collateral Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, epidemics or pandemics, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility, it being understood that the Trustee and the Notes Collateral Agent shall use reasonable best efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 14.18. Severability. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 14.19. Intercreditor Agreements. Reference is made to the First Lien Intercreditor Agreement and any future Intercreditor Agreement contemplated by this Indenture. Each Holder, by its acceptance of a Note, (a) consents to the priority of Liens and payments provided for in the Intercreditor Agreements, (b) agrees that it will be bound by and will take no actions contrary to the provisions of the Intercreditor Agreements and (c) authorizes and instructs the Notes Collateral Agent and/or the Trustee, through the execution of the Intercreditor Joinder, to enter into the Intercreditor Agreements as the Notes Collateral Agent/or the Trustee and on behalf of such Holder, including without limitation, making the representations of the Holders contained therein, and including any amendments, restatements or supplements thereto providing for, inter alia, substantially the same rights, priorities and obligations referred to in the applicable Intercreditor Agreements and covering any other matters incidental thereto.
[Signature on following pages]
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed all as of the date and year first written above.
| GETTY IMAGES, INC. | ||
|---|---|---|
| By: | /s/ Chris Hoel | |
| Name: | Chris Hoel | |
| Title: | VP Finance, Chief Accounting Officer | |
| GRIFFEY MIDCO (DE), LLC | ||
| By: | /s/ Chris Hoel | |
| Name: | Chris Hoel | |
| Title: | VP Finance, Chief Accounting Officer | |
| ABE INVESTMENT HOLDINGS, INC. | ||
| By: | /s/ Chris Hoel | |
| Name: | Chris Hoel | |
| Title: | VP Finance, Chief Accounting Officer | |
| GETTY IMAGES NEWS SERVICES (PRC), INC. | ||
| By: | /s/ Chris Hoel | |
| Name: | Chris Hoel | |
| Title: | VP Finance, Chief Accounting Officer | |
| GETTY IMAGES (US), INC. | ||
| By: | /s/ Chris Hoel | |
| Name: | Chris Hoel | |
| Title: | VP Finance, Chief Accounting Officer | |
| GETTY IMAGES (SEATTLE), INC. | ||
| By: | /s/ Chris Hoel | |
| Name: | Chris Hoel | |
| Title: | VP Finance, Chief Accounting Officer |
[Signature Page to Indenture (Issuer)]
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
|---|---|---|
| By: | /s/ Christopher J. Grell | |
| Name: | Christopher J. Grell | |
| Title: | Vice President |
[Signature Page to Indenture(Trustee)]
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Notes Collateral<br>Agent | ||
|---|---|---|
| By: | /s/ Christopher J. Grell | |
| Name: | Christopher J. Grell | |
| Title: | Vice President |
[Signature Page to Indenture(Collateral Agent)]
EXHIBIT A
[FORM OF FACE OF GLOBAL RESTRICTED NOTE]
[Applicable Restricted Notes Legend and ERISA Legend]
[Depository Legend, if applicable]
[Temporary Regulation S Legend, if applicable]
| No. [___] | Principal Amount $[___________] [as revised <br><br>by the Schedule of Increases and Decreases in <br><br>Global Note attached hereto] |
|---|---|
| CUSIP NO. ____________________________^2^ | |
| ISIN NO. ____________________________^3^ |
GETTY IMAGES, INC.
10.500% Senior Secured Notes due 2030
Getty Images, Inc., a Delaware corporation, promises to pay to [Cede & Co.], or its registered assigns, the principal sum of ________________ U.S. Dollars, [as revised by the Schedule of Increases and Decreases in Global Note attached hereto], on November 15, 2030.
Interest Payment Dates: May 15 and November 15, commencing on May 15, 2026
Record Dates: May 1 and November 1
Additional provisions of this Note are set forth on the other side of this Note.
| ^2^ | SR SECD NT 144A:374276 AR4; |
|---|
SR SECD NT REG S: U3742L AF4.
| ^3^ | SR SECD NT 144A: US374276AR47; |
|---|
SR SECD NT REG S: USU3742LAF41.
A-1
IN WITNESS WHEREOF, the Company have caused this instrument to be duly executed.
| GETTY IMAGES, INC. | |
|---|---|
| By: | |
| Name: | |
| Title: |
A-2
TRUSTEE CERTIFICATE OF AUTHENTICATION
This Note is one of the Notes referred to in the within-mentioned Indenture.
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, | |
|---|---|
| as Trustee | |
| By: | |
| Authorized Signatory | |
| Dated: | __________ |
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[FORM OF REVERSE SIDE OF NOTE]
GETTY IMAGES, INC.
10.500% Senior Secured Notes due 2030
Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Indenture.
- Interest
Getty Images, Inc., a Delaware corporation, promises to pay interest on the principal amount of this Note at 10.500% per annum from October 21, 2025 until maturity. The Company will pay interest semi-annually in arrears every May 15 and November 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided, that the first Interest Payment Date shall be May 15, 2026. The Company shall pay interest on overdue principal at the rate specified herein, and they shall pay interest on overdue installments of interest at the same rate to the extent lawful. Interest on the Notes will be computed on the basis of a 360-day year comprised of twelve 30-day months.
- Method of Payment
By no later than 10:00 a.m. (New York City time) on the date on which any principal of, premium, if any, or interest on any Note is due and payable, the Company shall deposit with the Paying Agent a sum sufficient in immediately available funds to pay such principal, premium and interest when due. Interest on any Note which is payable, and is timely paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered at the close of business on the preceding May 1 and November 1 at the office or agency of the Company maintained for such purpose pursuant to Section 2.3 of the Indenture. The principal of (and premium, if any) and interest on the Notes shall be payable at the office or agency of the Paying Agent or Registrar designated by the Company maintained for such purpose (which shall initially be the office of the Trustee maintained for such purpose), or at such other office or agency of the Company as may be maintained for such purpose pursuant to Section 2.3 of the Indenture; provided, however, that, at the option of the Paying Agent, each installment of interest may be paid by (i) check mailed to addresses of the Persons entitled thereto as such addresses shall appear on the Notes Register or (ii) wire transfer to an account located in the United States maintained by the payee, subject to the third to last sentence of this paragraph. Payments in respect of Notes represented by a Global Note (including principal, premium, if any, and interest) will be made by wire transfer of immediately available funds to the accounts specified by The Depository Trust Company or any successor depository. Payments in respect of Notes represented by Definitive Notes (including principal, premium, if any, and interest) held by a Holder of at least $1 aggregate principal amount of Notes represented by Definitive Notes will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 15 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion). If an Interest Payment Date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.
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- Paying Agent and Registrar
The Company initially appoints U.S. Bank Trust Company, National Association, as trustee (the “Trustee”) as Registrar and Paying Agent for the Notes. The Company may change any Registrar or Paying Agent without prior notice to the Holders. The Company or any Guarantor may act as Paying Agent, Registrar or transfer agent.
- Indenture
The Company issued the Notes under an Indenture dated as of October 21, 2025 (as it may be amended or supplemented from time to time in accordance with the terms thereof, the “Indenture”), among the Company, the Guarantors party thereto and the Trustee and Notes Collateral Agent. The terms of the Notes include those stated in the Indenture. The Notes are subject to all terms and provisions of the Indenture, and Holders are referred to the Indenture for a statement of those terms. In the event of a conflict between the terms of the Notes and the terms of the Indenture, the terms of the Indenture shall prevail.
- Guarantees
To guarantee the due and punctual payment of the principal, premium, if any, and interest on the Notes and all other amounts payable by the Company under the Indenture and the Notes when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Guarantors will unconditionally guarantee (and future guarantors, jointly and severally with the Guarantors, will fully and unconditionally Guarantee) such obligations on a senior basis pursuant to the terms of the Indenture.
- Optional Redemption
(a) At any time prior to November 15, 2027, the Company may redeem the Notes in whole or in part, at its option, upon not less than 10 nor more than 60 days’ prior notice by electronic delivery or by first class mail, postage prepaid, with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register, at a redemption price equal to 100% of the principal amount of such Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any, to, but excluding, the date of redemption (the “Redemption Date”), subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date.
(b) At any time and from time to time on or prior to November 15, 2027, the Company may redeem Notes with the net cash proceeds received by the Company from any Equity Offering at a redemption price equal to 110.500% of the principal amount of such Notes, plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date, in an aggregate principal amount for all such redemptions not to exceed 40% of the original aggregate principal amount of the Notes issued under the Indenture on the Issue Date (together with Additional Notes); provided that (1) in each case the redemption takes place not later than 180 days after the closing of the related Equity Offering, and (2) not less than 50% of the aggregate principal amount of the Notes issued under the Indenture on the Issue Date remains outstanding immediately thereafter (excluding Notes held by the Company or any of its Restricted Subsidiaries), unless all such Notes are redeemed substantially concurrently. The Trustee shall select the Notes to be purchased in the manner described under Sections 5.1 through 5.6 of the Indenture.
(c) [Reserved].
A-5
(d) At any time and from time to time on or after November 15, 2027, the Company may redeem the Notes in whole or in part, at its option, upon not less than 10 nor more than 60 days’ notice by electronic delivery or by first class mail, postage prepaid, with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register at a redemption price equal to the percentage of principal amount set forth below plus accrued and unpaid interest, if any, on the Notes redeemed, to, but excluding, the applicable Redemption Date, if redeemed during the twelve-month period beginning on November 15 of the year indicated below:
| Year | Percentage | ||
|---|---|---|---|
| 2027 | 105.250 | % | |
| 2028 | 102.625 | % | |
| 2029 and thereafter | 100.000 | % |
(e) Notwithstanding the foregoing, in connection with any tender offer for the Notes, including a Change of Control Offer or Asset Disposition Offer, if Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in such tender offer and the Company, or any third party making such a tender offer in lieu of the Company, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Company or such third party will have the right upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase date, to redeem all Notes that remain outstanding following such purchase at a redemption price equal to the price offered to each other Holder (excluding any early tender or incentive fee) in such tender offer plus, to the extent not included in the tender offer payment, accrued and unpaid interest, if any, thereon, to, but excluding, the date of such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the outstanding Notes have validly tendered and not validly withdrawn such Notes in a tender offer, including a Change of Control Offer or Asset Disposition Offer. Notes owned by the Company or its Affiliates or by funds controlled or managed by any Affiliate of the Company, or any successor thereof, shall be deemed to be outstanding for the purposes of such tender offer.
(f) Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable Redemption Date.
(g) Any redemption pursuant to this paragraph 6 shall be made pursuant to the provisions of Sections 5.1 through 5.7 of the Indenture.
Except as set forth in Section 5.8 of the Indenture, the Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes; provided, however, that under certain circumstances, the Company may be required to offer to purchase the Notes under Section 3.5 and Section 3.9 of the Indenture. The Company, its equity holders, including the Investor, its Affiliates and members of management may at any time and from time to time seek to purchase the Notes in the open market, by tender offer or otherwise.
- Special Mandatory Redemption.
In the event that (i) the Escrow Outside Date occurs and the Escrow Agent shall not have received an Escrow Release Officer’s Certificate on or prior to such date, (ii) the Issuer informs the Escrow Agent and the Trustee in writing that, in the reasonable judgment of the Issuer, the Merger will not be consummated on or prior to the Escrow Outside Date or (iii) the Issuer informs the Escrow Agent and the Trustee in writing that the Merger Agreement has been terminated prior to the Escrow Outside Date, as described under Section 5.8 of the Indenture, the Issuer shall redeem all of the Notes (the “Special Mandatory Redemption”) at a price equal to 100.0% of the initial issue price of the Notes, plus accrued and unpaid interest on the Notes to, but excluding, the Special Mandatory 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.
A-6
Any Special Mandatory Redemption made pursuant to this paragraph 7 and Section 5.8 of the Indenture shall be made pursuant to the procedures set forth in the Indenture and the Escrow Agreement, except to the extent inconsistent with Section 5.8 of the Indenture.
- Repurchase Provisions
If a Change of Control occurs, unless a third party makes a Change of Control Offer or the Company has previously or concurrently delivered a redemption notice with respect to all outstanding Notes as described under Section 5.7 of the Indenture, each Holder will have the right to require the Company to repurchase from each Holder all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to but excluding the date of purchase; provided that if the repurchase date is on or after the record date and on or before the corresponding interest payment date, then Holders in whose names the Notes are registered at the close of business on such record date will receive the interest due on the repurchase date as provided in, and subject to the terms of, the Indenture.
Upon certain Asset Dispositions, the Company may be required to use the Excess Proceeds from such Asset Dispositions to offer to purchase the maximum aggregate principal amount of Notes (that is $2,000 or an integral multiple of $1,000 in excess thereof) and, at the Company’s option, Pari Passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in Section 3.5 and in Article V of the Indenture.
- Denominations; Transfer; Exchange
The Notes shall be issuable only in fully registered form in minimum denominations of principal amount of $2,000 and any integral multiple of $1,000 in excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay a sum sufficient to cover any tax and fees required by law or permitted by the Indenture. The Registrar need not register the transfer of or exchange of any Note (A) for a period beginning (1) 15 days before the mailing of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such mailing or (2) 15 days before an Interest Payment Date and ending on such Interest Payment Date or (B) called for redemption, except the unredeemed portion of any Note being redeemed in part.
- Persons Deemed Owners
The registered Holder of this Note may be treated as the owner of it for all purposes.
- Discharge and Defeasance
Subject to certain exceptions and conditions set forth in the Indenture, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to redemption or maturity, as the case may be.
A-7
- Amendment, Supplement, Waiver
Subject to certain exceptions contained in the Indenture, the Indenture, the Notes, the Collateral Documents or the Intercreditor Agreements may be amended, supplemented or otherwise modified or a Default thereunder may be waived, with the consent of the Holders of a majority in aggregate principal amount of the outstanding Notes. Without notice to or the consent of any Holder, the Company, the Guarantors and the Trustee may amend or supplement the Indenture, the Notes, the Collateral Documents or the Intercreditor Agreements as provided in the Indenture.
- Defaults and Remedies
If an Event of Default (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company) occurs and is continuing, the Trustee by written notice to the Company, or the Holders of at least 30% in principal amount of the outstanding Notes by written notice to the Company and the Trustee may declare the principal of, and accrued and unpaid interest, if any, on all the Notes to be due and payable immediately. Upon the effectiveness of such declaration, such principal and accrued and unpaid, interest, if any, will be due and payable immediately. If a bankruptcy, insolvency or reorganization of the Company occurs and is continuing, the principal of, and accrued and unpaid interest, if any, on all the Notes will become and be due and payable without any declaration or other act on the part of the Trustee or any Holders. Under certain circumstances, the Holders of a majority in principal amount of the outstanding Notes may rescind any such acceleration with respect to the Notes and its consequences.
- Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company, the Guarantors or their respective Affiliates with the same rights it would have if it were not Trustee. In addition, the Trustee shall be permitted to engage in transactions with the Company.
- No Recourse Against Others
No past, present or future director, officer, employee, incorporator or shareholder of the Company or any of its Subsidiaries or Affiliates, as such, shall have any liability for any obligations of the Company or the Guarantors under the Notes, the Note Guarantees, the Collateral Documents, the Intercreditor Agreements or the Indenture 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 federal securities laws and it is the view of the SEC that such a waiver is against public policy.
- Authentication
This Note shall not be valid until an authorized signatory of the Trustee (or an authenticating agent acting on its behalf) manually signs the certificate of authentication on the other side of this Note.
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- Abbreviations
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with rights of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to Minors Act).
- CUSIP and ISIN Numbers
The Company have caused CUSIP and ISIN numbers, if applicable, to be printed on the Notes and has directed the Trustee to use CUSIP and ISIN numbers, if applicable, in notices of redemption or purchase as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption or purchase and reliance may be placed only on the other identification numbers placed thereon.
- Governing Law
This Note shall be governed by, and construed in accordance with, the laws of the State of New York.
The Company will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture. Requests may be made to:
Getty Images, Inc.
605 Fifth Avenue S, Suite 400
Seattle, WA 98104
Facsimile No.: 206-925-5622
Phone No.: 206-925-7105
Attention: General Counsel
- Security
This Note will be secured by the Collateral on the terms and subject to the conditions set forth in the Indenture and the Collateral Documents. The Trustee and the Notes Collateral Agent, as the case may be, hold a security interest in the Collateral for the benefit of themselves and the Holders of the Notes, in each case pursuant to the Collateral Documents and the Intercreditor Agreements. Each Holder, by accepting this Note, consents and agrees to the terms of the Collateral Documents (including the provisions providing for the foreclosure and release of Collateral) and the Intercreditor Agreements as the same may be in effect or may be amended from time to time in accordance with their terms and the Indenture and authorizes and directs the Notes Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreements, and to perform its obligations and exercise its rights thereunder in accordance therewith.
A-9
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
(Print or type assignee’s name, address and zip code)
(Insert assignee’s social security or tax I.D. No.)
and irrevocably appoint ___________ agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Date: Your Signature:
Signature Guarantee:
(Signature must be guaranteed)
Sign exactly as your name appears on the other side of this Note.
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
The undersigned hereby certifies that it £ is / £ is not an Affiliate of the Company and that, to its knowledge, the proposed transferee £ is / £ is not an Affiliate of the Company.
In connection with any transfer or exchange of any of the Notes evidenced by this certificate occurring prior to the date that is one year after the later of the date of original issuance of such Notes and the last date, if any, on which such Notes were owned by the Company or any Affiliate of the Company, the undersigned confirms that such Notes are being:
CHECK ONE BOX BELOW:
| (1) | ☐ | acquired for the undersigned’s own account, without transfer; or |
|---|---|---|
| (2) | ☐ | transferred to the Company; or |
| (3) | ☐ | transferred pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”); or |
| (4) | ☐ | transferred pursuant to an effective registration statement under the Securities Act; or |
| (5) | ☐ | transferred pursuant to and in compliance with Regulation S under the Securities Act; or |
| (6) | ☐ | transferred to an Institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), (7) or (8) under the Securities Act), that has furnished to the Trustee a signed letter containing certain representations and agreements (the form of which letter appears in Exhibit E of the Indenture, respectively); or |
| (7) | ☐ | transferred pursuant to another available exemption from the registration requirements of the Securities Act. |
A-10
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any person other than the registered Holder thereof; provided, however, that if box (5), (6) or (7) is checked, the Company may require, prior to registering any such transfer of the Notes, in its sole discretion, such legal opinions, certifications and other information as the Company may reasonably request to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, such as the exemption provided by Rule 144 under such Act.
| Signature | |
|---|---|
| Signature Guarantee: | |
| (Signature must be guaranteed) | Signature |
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
TO BE COMPLETED BY PURCHASER IF BOX (1) OR (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
| Dated: |
|---|
A-11
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTES
The following increases or decreases in this Global Note have been made:
| Date of Exchange | Amount of <br><br>decrease in <br><br>Principal Amount <br><br>of this Global Note | Amount of <br><br>increase in <br><br>Principal Amount <br><br>of this Global Note | Principal Amount <br><br>of this Global Note <br><br>following such <br><br>decrease or <br><br>increase | Signature of <br><br>authorized <br><br>signatory of <br><br>Trustee or Notes <br><br>Custodian |
|---|
A-12
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Note purchased by the Company pursuant to Section 3.5 or 3.9 of the Indenture, check either box:
Section 3.5 ☐ Section 3.9 ☐
If you want to elect to have only part of this Note purchased by the Company pursuant to Section 3.5 or 3.9 of the Indenture, state the amount in principal amount (must be in minimum denominations of $2,000 or an integral multiple of $1,000 in excess thereof): $___________________________________ and specify the denomination or denominations (which shall not be less than the minimum authorized denomination) of the Notes to be issued to the Holder for the portion of the within Note not being repurchased (in the absence of any such specification, one such Note will be issued for the portion not being repurchased): _________________.
Date: __________ Your Signature ____________________________________________________
(Sign exactly as your name appears on the other side of the Note)
Signature Guarantee: _______________________________________________________________
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
A-13
EXHIBIT B
Form of Supplemental Indenture to Add Guarantors
[ ] SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of [ ], 20[ ], by and among Getty Images, Inc., a Delaware corporation (the “Company”), the parties that are signatories hereto as Guarantors (each, a “Guaranteeing Subsidiary” and, collectively, the “Guaranteeing Subsidiaries”), U.S. Bank Trust Company, National Association, as Trustee and Notes Collateral Agent under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, each of the Company, the Guarantors party thereto, the Trustee and the Notes Collateral Agent have heretofore executed and delivered an indenture dated as of October 21, 2025 (as amended, supplemented, waived or otherwise modified, the “Indenture”), providing for the issuance of an aggregate principal amount of $628,400,000 of 10.500% Senior Secured Notes due 2030 (the “Notes”) of the Company;
WHEREAS, the Indenture provides that each Guaranteeing Subsidiary shall execute and deliver to the Trustee and the Notes Collateral Agent a supplemental indenture pursuant to which such Guaranteeing Subsidiary shall unconditionally guarantee, on a joint and several basis with the other Guarantors, all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the “Note Guarantee”), each on the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Company, any Guarantor, the Trustee and the Notes Collateral Agent are authorized to execute and deliver this Supplemental Indenture to amend or supplement the Indenture, without the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the Guaranteeing Subsidiar[y/ies], the Trustee and the Notes Collateral Agent mutually covenant and agree for the benefit of the Trustee, the Notes Collateral Agent and the Holders of the Notes as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recitals hereto are used herein as therein defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
ARTICLE II
AGREEMENT TO BE BOUND; GUARANTEE
SECTION 2.1. Agreement to be Bound. Each of the Guaranteeing Subsidiaries hereby agrees to become a party to the Indenture as a Guarantor and as such will have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture.
B-1
SECTION 2.2. Guarantee. Each of the Guaranteeing Subsidiaries agrees, on a joint and several basis with the other Guarantors, to fully, unconditionally and irrevocably Guarantee to each Holder of the Notes, the Trustee and the Notes Collateral Agent the Guaranteed Obligations pursuant to Article X of the Indenture on a senior basis.
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Notices. All notices and other communications to the Guaranteeing Subsidiaries shall be given as provided for in the Indenture, at the address for the Guarantors set forth in the Indenture.
SECTION 3.2. Merger and Consolidation. Each Guaranteeing Subsidiary shall not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge or amalgamate with or into, another Person (other than the Company or any Restricted Subsidiary that is a Guarantor or becomes a Guarantor concurrently with the transaction) except in accordance with Section 4.1(i) of the Indenture.
SECTION 3.3. Release of Guarantee. The Note Guarantees hereunder may be released in accordance with Section 10.2 of the Indenture.
SECTION 3.4. Parties. Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained.
SECTION 3.5. Governing Law. This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
SECTION 3.6. Severability. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
SECTION 3.7. Benefits Acknowledged. Each Guaranteeing Subsidiary’s Note Guarantee is subject to the terms and conditions set forth in the Indenture. Each Guaranteeing Subsidiary acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
SECTION 3.8. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
SECTION 3.9. The Trustee and the Notes Collateral Agent. Neither the Trustee nor the Notes Collateral Agent make any representation or warranty as to the validity or sufficiency of this Supplemental Indenture or with respect to the recitals contained herein, all of which recitals are made solely by the other parties hereto.
B-2
SECTION 3.10. Counterparts. The parties hereto may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile, pdf or other electronic transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile, pdf or other electronic means shall be deemed to be their original signatures for all purposes.
SECTION 3.11. Execution and Delivery. Each Guaranteeing Subsidiary agrees that its Note Guarantee shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of any such Note Guarantee.
SECTION 3.12. Headings. The headings of the Articles and the Sections in this Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
| [GUARANTEEING SUBSIDIARIES] | |
|---|---|
| as a Guarantor | |
| GETTY IMAGES, INC. | |
| By: | |
| Name: | |
| Title: | |
| By: | |
| Name: | |
| Title: | |
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION | |
| as Trustee and Notes Collateral Agent | |
| By: | |
| Name: | |
| Title: |
B-3
EXHIBIT C
[Reserved]
C-1
EXHIBIT D
Form of Certificate to be Delivered in Connectionwith Transfers Pursuant to Regulation S
[Date]
Getty Images, Inc.
605 Fifth Avenue S, Suite 400
Seattle, WA 98104
Attention: General Counsel
U.S. Bank Trust Company, National Association
100 Wall St STE 600
New York, NY 10005
Attention: Global Corporate Trust
| Re: | Getty Images, Inc., (the “Company”). |
|---|
10.500% Senior Secured Notes due 2030 (the “Notes”)
Ladies and Gentlemen:
In connection with our proposed sale of $[_____________] aggregate principal amount of the Notes, we confirm that such sale has been effected pursuant to and in accordance with Regulation S under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we represent that:
(a) the offer of the Notes was not made to a person in the United States;
(b) either (i) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (ii) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S, as applicable; and
(d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the provisions of Rule 903(b)(2), Rule 903(b)(3) or Rule 904(b)(1) of Regulation S are applicable thereto, we confirm that such sale has been made in accordance with the applicable provisions of Rule 903(b)(2), Rule 903(b)(3) or Rule 904(b)(1), as the case may be.
D-1
We also hereby certify that we [are][are not] an Affiliate of the Company and, to our knowledge, the transferee of the Notes [is][is not] an Affiliate of the Company.
The Trustee and the Company are entitled to conclusively rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S.
| Very truly yours, | |
|---|---|
| [Name of Transferor] | |
| BY: | |
| Authorized Signature |
D-2
EXHIBIT E
Form of Certificate to be Delivered in Connectionwith Transfers to IAIs
[Date]
Getty Images, Inc.
605 Fifth Avenue S, Suite 400
Seattle, WA 98104
Attention: General Counsel
U.S. Bank Trust Company, National Association
100 Wall St STE 600
New York, NY 10005
Attention: Global Corporate Trust
| Re: | Getty Images, Inc. (the “Company”). |
|---|
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[_____________] principal amount of the 10.500% Senior Secured Notes due 2030 (the “Notes”) of the Company.
Upon transfer, the Notes would be registered in the name of the new beneficial owner as follows:
Name:
Address:
Taxpayer ID Number:
The undersigned represents and warrants to you that:
We are an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), (7), (8), (9), (12) or (13) under the Securities Act of 1933, as amended (the “Securities Act”)) purchasing for our own account or for the account of such an institutional “accredited investor,”, and we are acquiring the Notes not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act. We have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risk of our investment in the Notes and we invest in or purchase securities similar to the Notes in the normal course of our business. We and any accounts for which we are acting are each able to bear the economic risk of our or its investment.
E-1
We understand that the Notes have not been registered under the Securities Act and, unless so registered, may not be sold except as permitted in the following sentence. We agree on our own behalf and on behalf of any investor account for which we are purchasing Notes to offer, sell or otherwise transfer such Notes prior to the date that is one year after the later of the date of original issue and the last date on which the Company or any affiliate of the Company was the owner of such Notes (or any predecessor thereto) (the “Resale Restriction Termination Date”) only (a) to the Company or any Subsidiary thereof, (b) pursuant to an effective registration statement under the Securities Act, (c) in a transaction complying with the requirements of Rule 144A under the Securities Act, to a person we reasonably believe is a “qualified institutional buyer” under Rule 144A of the Securities Act (a “QIB”) that is purchasing for its own account or for the account of a QIB and to whom notice is given that the transfer is being made in reliance on Rule 144A, (d) pursuant to offers and sales to non-U.S. persons that occur outside the United States within the meaning of Regulation S under the Securities Act, (e) to an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3), (7), (8), (9), (12) or (13) under the Securities Act that is not a QIB and that is purchasing for its own account or for the account of another institutional “accredited investor,” to an affiliate of such institutional “accredited investor,” in each case for investment purposes and not with a view to or for offer or sale in connection with any distribution in violation of the Securities Act or (f) pursuant to any other available exemption from the registration requirements of the Securities Act, subject in each of the foregoing cases to any requirement of law that the disposition of our property or the property of such investor account or accounts be at all times within our or their control and in compliance with any applicable state securities laws. The foregoing restrictions on resale will not apply subsequent to the Resale Restriction Termination Date. If any resale or other transfer of the Notes is proposed to be made pursuant to clause (e) above prior to the Resale Restriction Termination Date, the transferor shall deliver a letter from the transferee substantially in the form of this letter to the Company and the Trustee, which shall provide, among other things, that the transferee is an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), (7), (8), (9), (12) or (13) under the Securities Act) and that it is acquiring such Notes for investment purposes and not for distribution in violation of the Securities Act. Each purchaser acknowledges that the Company and the Trustee reserve the right prior to any offer, sale or other transfer prior to the Resale Termination Date of the Notes pursuant to clauses (d), (e) or (f) above to require the delivery of an opinion of counsel, certifications and/or other information satisfactory to the Company.
We [are][are not] an Affiliate of the Company.
| TRANSFEREE: |
|---|
| BY: |
E-2
EXHIBIT F
Form of Special Mandatory Redemption Notice
TO THE HOLDERS OF THE
10.500% SENIOR SECURED NOTES DUE 2030
Getty Images, INC.
(CUSIP Nos. 144A:374276 AR4 (144A) / U3742L AF4 (Reg S))
(ISIN Nos. US374276AR47 (144A) / USU3742LAF41 (Reg S))
NOTICE IS HEREBY GIVEN that Getty Images, Inc., a Delaware corporation (the “Issuer”), pursuant to the Indenture, dated as of October 21, 2025 (the “Indenture”), among the Issuer, the guarantors party thereto, and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), and notes collateral agent (the “Notes Collateral Agent”), will redeem all of its outstanding 10.500% Senior Secured Notes due 2030 (the “Notes”) on [___________] (the “Special Mandatory Redemption Date”) pursuant to Section 5.8(a) of the Indenture and paragraph 7 of the Notes. The redemption price for each Note will be 100% of the initial issue price of the Notes (or $1,000 per $1,000 principal amount thereof), plus accrued and unpaid interest thereon to, but excluding, the Special Mandatory Redemption Date (the “Special Mandatory Redemption Price”). Capitalized terms used herein (but otherwise not defined) shall have such meanings as set forth in the Indenture.
Unless the Issuer defaults in payment of the Special Mandatory Redemption Price, interest on the Notes called for redemption shall cease to accrue on and after the Special Mandatory Redemption Date.
In order to receive the redemption payment, the Notes called for redemption must be surrendered to U.S. Bank Trust Company, National Association, as Paying Agent. Notes to be redeemed must be surrendered for payment: (a) in book-entry form in accordance with the procedures of The Depository Trust Company (“DTC”); or (b) by delivering the Notes to be redeemed to the Paying Agent at:
[U.S. Bank National Association
Global Corporate Trust Services
60 Livingston Avenue
St. Paul, MN 55107 | EP-MN-WS3C
Attention: Corporate Trust Services; Barbara Nastro
Administrator Phone: (212) 361-2525
Email: barbara.nastro@usbank.com]
The method of delivery of the Notes is at the election and risk of the Holder. If delivered by mail, certified or registered mail, properly insured, is recommended.
No representation is being made as to the correctness of the CUSIP numbers either as printed on the Notes or as contained in this notice. Holders should rely only on the other identification numbers printed on the Notes.
IMPORTANT NOTICE
For holders of Notes who have not established an exemption, paymentsmade upon the redemption of the Notes may be subject to U.S. federal withholding of [24]% of the payments to be made, as and to the extentrequired by the provisions of the U.S. Internal Revenue Code. To establish an exemption from such withholding, holders of Notes shouldsubmit a completed and signed Internal Revenue Service Form W-9 (or applicable Form W-8) when surrendering their Notes for payment.
Date: [ ]
By: Getty Images, INC.
F-1
Exhibit 4.7
Getty Images, Inc.
$628,400,000 10.500% Senior Secured Notes due 2030
ESCROW AND SECURITY AGREEMENT
THIS ESCROW AND SECURITY AGREEMENT (the “Agreement”), dated as of October 21, 2025, is by and among U.S. Bank National Association, a national banking association, as escrow agent and securities intermediary (in such capacities, the “Escrow Agent”), U.S. Bank Trust Company, National Association, as trustee under the Indenture (as defined herein) (in such capacity, the “Trustee”) and Getty Images, Inc. a Delaware corporation (the “Issuer”), a subsidiary of Getty Images Holdings, Inc., a Delaware corporation (the “Parent”). The parties hereto agree that this Agreement constitutes a security agreement and a securities account control agreement, including, without limitation, for purposes of Articles 8 and 9 of the UCC (as defined below).
RECITALS
WHEREAS, pursuant to Sections 4.26 and 5.22(a) of that certain Agreement and Plan of Merger, dated as of January 6, 2025 (the “Merger Agreement”), by and among, inter alios, Parent and Shutterstock, Inc., a Delaware corporation (“Shutterstock”), (i) Parent has represented and warranted that at the closing date of the transactions contemplated therein, Parent will have immediately available funds sufficient for Parent to consummate the Transactions (as defined in the Merger Agreement), including such funds for the Financing Uses (as defined in the Merger Agreement) and (ii) Parent has covenanted that Parent shall, at its sole expense, use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary to ensure it will have at Closing (as defined in the Merger Agreement) immediately available funds sufficient for the Financing Uses;
WHEREAS, this Agreement is being entered into in connection with that certain Purchase Agreement, dated as of October 6, 2025 (the “Purchase Agreement”), by and among the Issuer, the guarantors listed on Schedule 2 thereto (the “Guarantors”), and J.P. Morgan Securities LLC, as representative of the several initial purchasers named on Schedule 1 thereto (the “Initial Purchasers”) (for the avoidance of doubt, U.S. Bank National Association is not a party to the Purchase Agreement, shall have no duties or obligations thereunder and shall not be deemed to have knowledge of its terms), and in connection with that certain Indenture, dated as of the date hereof (the “Indenture”), by and among the Issuer, the Guarantors and the Trustee, governing the Notes (as defined below);
WHEREAS, pursuant to the terms of the Indenture and the Purchase Agreement, the Issuer is issuing and selling $628,400,000 aggregate principal amount of 10.500% Senior Secured Notes due 2030 (the “Notes”, and such issuance and sale the “Offering”) to the Initial Purchasers, and, pursuant to the terms of the Indenture, the payment of principal, premium, if any, and interest on the Notes will be fully and unconditionally guaranteed on a senior secured basis pursuant to the Guarantees (as defined below) of the Guarantors;
WHEREAS, pursuant to the terms of the Purchase Agreement, concurrently with the closing of the sale of the Notes, the Issuer will deposit (or cause to be deposited) with the Escrow Agent, as hereinafter provided, (a) the net proceeds of the Offering (such net proceeds equivalent to the aggregate proceeds of the offering less any discount to the Initial Purchasers) (the “Net Proceeds”) and (b) a cash amount equal to the difference between the aggregate gross proceeds of the offering less the Net Proceeds (the “Gross-Up Amount”), each into the Escrow Account (as defined below) and each in the form of immediately available funds in U.S. dollars (the Net Proceeds and the Gross-Up Amount collectively, the “Escrow Funds”);
WHEREAS, the Escrow Funds deposited with the Escrow Agent in the Escrow Account, in addition to any other financing arrangements, will be used (a) upon satisfaction of the escrow conditions set forth in Section 3, by the Issuer and/or Parent to fund the Financing Uses and other ancillary transactions to occur in connection therewith, including related fees and expenses, or (b) if the escrow conditions set forth in Section 3 are not satisfied (i) to pay the aggregate Special Mandatory Redemption Price (as defined below) for all outstanding Notes and (ii) if any excess remains, to pay expenses incurred by the Trustee and expenses incurred by the Escrow Agent hereunder;
WHEREAS, pursuant to the terms of the Purchase Agreement, as security for its obligations under the Notes and the Indenture, by this Agreement the Issuer will grant to the Trustee, for the sole and exclusive benefit of the Trustee and the Holders of the Notes, a first-priority security interest in and Lien on the Escrow Account and the Collateral (as defined below);
WHEREAS, the Issuer wishes to appoint U.S. Bank National Association, a national banking association, as Escrow Agent for the Escrow Account, and U.S. Bank National Association is willing to accept such appointment and to act as Escrow Agent for the Escrow Account, in each case upon the terms and subject to the conditions of this Agreement; and
WHEREAS, the parties have entered into this Agreement in order to set forth the conditions upon which, and the manner in which, funds will be held in and disbursed from the Escrow Account and released from the security interest and Lien described above.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Defined Terms.
All terms used but not defined herein shall have the meanings ascribed to them in the Indenture. In addition to any other defined terms used herein, the following terms shall constitute defined terms for purposes of this Agreement and shall have the meanings set forth below:
“Acceleration Notice” has the meaning set forth in Section 3(d).
“Agreement” has the meaning set forth in the preamble hereto.
“Business Day” has the meaning set forth in the Indenture.
“Cash Equivalents” has the meaning set forth in the Indenture.
“Collateral” has the meaning set forth in Section 6(a)(v).
“Default” has the meaning set forth in the Indenture.
“Default Amount” has the meaning set forth in Section 3(d).
“Deficient FundsNotice” has the meaning set forth in Section 2(b)(v).
“Eligible Investment” means cash items, U.S. government securities and investments in money market funds that comply with the risk limiting conditions of Rule 2a-7 (or any successor rule) of the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, that in each case are Cash Equivalents or Investment Grade Securities.
2
“Entitlement Holder” has the meaning set forth in Section 2(b)(iii).
“Escrow Account” has the meaning set forth in Section 2(b)(i).
“Escrow Agent” has the meaning set forth in the preamble hereto.
“Escrow Funds” has the meaning set forth in the recitals hereto.
“Escrow RedemptionNotice” has the meaning set forth in Section 3(b).
“Escrow Release Conditions” has the meaning set forth in Section 3(a).
“Escrow Release Date” has the meaning set forth in Section 3(a).
“Escrowed Property” has the meaning set forth in Section 2(b)(ii).
“Event of Default” has the meaning set forth in the Indenture.
“Fee letter” has the meaning set forth in Section 2(c)(i).
“First Lien Documents” has the meaning set forth in the Indenture.
“Guarantees” has the meaning set forth in the Indenture.
“Gross-Up Amount” has the meaning set forth in the recitals hereto.
“Guarantor” has the meaning set forth in the recitals hereto.
“Holder” has the meaning set forth in the Indenture.
“Indemnified Person” has the meaning set forth in Section 5.
“Indenture” has the meaning set forth in the recitals hereto.
“Initial Purchasers” has the meaning set forth in the recitals hereto.
“Investment GradeSecurities” has the meaning set forth in the Indenture.
“Issue Date” means October 21, 2025.
“Issuer” has the meaning set forth in the preamble hereto.
“Lien” has the meaning set forth in the Indenture.
“Mandatory RedemptionEvent” has the meaning set forth in Section 3(b).
“Merger” means the proposed merger between Parent and Shutterstock pursuant to the Merger Agreement and the Transactions (as defined therein) contemplated thereby.
“Merger Agreement” has the meaning set forth in the recitals hereto.
“Net Proceeds” has the meaning set forth in the recitals hereto.
“Notes” has the meaning set forth in the recitals hereto.
3
“Offering” has the meaning set forth in the recitals hereto.
“Offering Memorandum” means that certain Offering Memorandum relating to the offering of the Notes, dated October 6, 2025.
“Outside Date” means October 6, 2026.
“Parent” has the meaning set forth in the preamble hereto.
“Person” has the meaning set forth in the Indenture.
“Purchase Agreement” has the meaning set forth in the recitals hereto.
“Release” has the meaning set forth in Section 3(a).
“Release Request” has the meaning set forth in Section 3(a).
“Representative Officer” means any officer of the Escrow Agent who has direct responsibility for the administration of this Agreement and shall also mean any other officer of the Escrow Agent to whom any matter related to this Agreement is referred because of such person’s knowledge of and familiarity with the particular subject matter.
“Required EscrowAmount” means $628,400,000.
“Secured Obligations” has the meaning set forth in Section 6(a)(v).
“Shutterstock” has the meaning set forth in the recitals hereto.
“Special MandatoryRedemption” means the obligation of the Issuer to redeem all of the Notes pursuant to Section 5.8(a) of the Indenture.
“Special MandatoryRedemption Date” means the date specified in an Escrow Redemption Notice to redeem all the Notes that is not more than three (3) Business Days following the date of a Mandatory Redemption Event.
“Special MandatoryRedemption Price” means a price equal to 100% of the initial issue price of the Notes to be redeemed on any Special Mandatory Redemption Date, plus accrued and unpaid interest from the Issue Date, or from the most recent date to which interest has been paid or provided for, to, but not including, the date of such redemption.
“Trustee” has the meaning set forth in the preamble hereto.
“Trustee Instruction” has the meaning set forth in Section 6(f).
“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York.
Section 2. Escrow Account; Escrow Agent.
(a) Appointmentof the Escrow Agent. The Issuer hereby appoints U.S. Bank National Association as Escrow Agent in accordance with the terms and conditions set forth herein, and U.S. Bank National Association hereby accepts such appointment subject to the terms and conditions set forth herein. The Escrow Agent represents that as of the date hereof, it has an office in the United States which satisfies the requirements of clause (1) and (2) of Article 4 of the Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary (the “Hague Convention”).
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(b) Establishmentof Escrow Account.
(i) Concurrently with the execution and delivery hereof, (A) the Escrow Agent shall establish a segregated escrow account entitled “Getty Images Escrow Account”, Account Number 296355000 (the “Escrow Account”), which shall not be commingled with any other property, and (B)(x) the Initial Purchasers, at the direction of the Issuer (which direction is hereby given), shall deposit the Net Proceeds, and (y) the Issuer shall deposit the Gross-Up Amount, in each case with the Escrow Agent, for credit to the Escrow Account. The Issuer, the Trustee and the Escrow Agent hereby agree that the “securities intermediary’s jurisdiction” of the Escrow Agent is the State of New York for purposes of the UCC, including Section 9-305 and Section 8-110 thereof. As permitted by Article 4 of the Hague Convention, the parties hereto agree that the law of the State of New York shall govern the Escrow Account and the issues specified in Article 2(1) of the Hague Convention. The provisions of the immediately preceding sentence shall be construed as, and shall constitute, an amendment to all account agreements governing the Escrow Account, notwithstanding any provision of the account agreement to the contrary.
(ii) The Escrow Agent shall accept the Escrow Funds and shall hold such funds and the proceeds thereof in the Escrow Account. All amounts so deposited and any interest on, and any dividends, distributions, earnings and other payments or proceeds in respect of, any such deposits or invested amounts, less any amounts or property released pursuant to the terms of this Agreement, shall constitute the “Escrowed Property.” The Escrow Agent shall invest any portion of the Escrowed Property that is cash in any Eligible Investments maturing on or before the Outside Date, as may be directed by the Issuer in writing from time to time. If the Escrow Agent does not receive written directions from the Issuer, the Escrowed Property will remain uninvested in cash. In selecting any Eligible Investments for investment, the Issuer shall determine that the proceeds thereof at maturity or withdrawal, which may occur at any time prior to the Outside Date, when added to the balance of the Escrowed Property without the reinvestment thereof or sale prior to maturity, provide funds to the Escrow Agent in an amount sufficient to pay the Special Mandatory Redemption Price. All such property shall be held in the Escrow Account until disbursed in accordance with the terms hereof. The Escrow Account and all property credited thereto, including the Escrowed Property, shall be under the “control” (within the meaning of Sections 8-106 and 9-106 of the UCC) of the Trustee for the benefit of itself and the Holders of the Notes. All securities or other property underlying any financial assets and which are credited to such Escrow Account shall be registered in the name of the Escrow Agent, or endorsed to the Escrow Agent or in blank.
(iii) The obligation and liability of the Escrow Agent to make the payments and transfers required by this Agreement shall be limited to the Escrowed Property. The Escrow Agent shall not be liable for any loss resulting from any investment made pursuant to this Agreement in compliance with the provisions hereof, from the sale or liquidation of any Eligible Investment required pursuant to the terms hereof, or any shortfall in the value of the Escrowed Property that might result therefrom. The Escrow Agent is hereby authorized, in making or disposing of any investment permitted by this Agreement, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or any such affiliate is acting as agent of the Escrow Agent or for any third person or dealing as principal for its own account. The parties acknowledge that the Escrow Agent is not providing investment supervision, recommendations, or advice. The Escrow Agent agrees, subject to the terms of this Agreement, that the Trustee is the entitlement holder (as defined in Section 8-102(7) of the UCC) (the “entitlementholder”) with respect to the Escrow Account and is entitled to exercise the rights that comprise any financial asset and which is credited to such Escrow Account.
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(iv) Notwithstanding anything to the contrary herein, the Escrow Agent shall have no duty to prepare or file any federal or state tax report or return with respect to any funds held pursuant to this Agreement or any income earned thereon, except for the delivery and filing of tax information reporting forms required to be delivered and filed with the Internal Revenue Service and any other reporting required by applicable law. Any interest and other income from investment of the Escrowed Property shall, as of the end of each calendar year and to the extent required by the Internal Revenue Service, be reported as having been earned by the Issuer, whether or not such income was disbursed during such calendar year. With respect to the preparation, delivery and filing of such required tax information reporting forms and all matters pertaining to the reporting of earnings on funds held under this Agreement, the Escrow Agent shall be entitled to request and receive written instructions from the Issuer, and the Escrow Agent shall be entitled to rely conclusively and without further inquiry on such written instructions. With respect to any other payments made under this Agreement, the Escrow Agent shall not be deemed the payer and shall have no responsibility for performing tax reporting. The Escrow Agent’s function of making such payments is solely ministerial and upon express direction of the parties as provided for in this Agreement. To the extent that the Escrow Agent becomes liable for the payment of any taxes in respect of income derived from the investment of the Escrowed Property, the Escrow Agent shall satisfy such liability to the extent possible from the Escrow Account. The Issuer shall indemnify, defend and hold the Escrow Agent harmless from and against any tax, late payment, interest, penalty or other cost or expense that may be assessed against the Escrow Agent on or with respect to the Escrowed Property and the investment thereof unless such tax, late payment, interest, penalty or other expense was finally adjudicated to have been directly caused by the fraud, gross negligence or willful misconduct of the Escrow Agent. The indemnification provided by this Section 2(b)(iv) is in addition to the indemnification provided in Section 5 and shall survive the resignation or removal of the Escrow Agent and the termination of this Agreement.
(v) In the event that the Escrowed Property does not equal or exceed the Required Escrow Amount, the Escrow Agent shall notify the Issuer and the Trustee as soon as possible (such notice, the “Deficient Funds Notice”). If a Deficient Funds Notice is issued by the Escrow Agent, then as soon as possible (and prior to the acceleration of the Notes in accordance with the terms of the Indenture), the Issuer shall deposit (or cause to be deposited) with the Escrow Agent in the Escrow Account as additional Escrowed Property an amount of cash in U.S. dollars that would cause the value of the Escrowed Property, when taken together with the Escrowed Property then being held in the Escrow Account at such time, to exceed the Required Escrow Amount.
(c) EscrowAgent Compensation; Expense Reimbursement.
(i) The Issuer shall pay the Escrow Agent fees as separately agreed between the Issuer and the Escrow Agent pursuant to that certain fee letter, dated as of September 12, 2025 (the “Fee Letter”) by and between U.S. Bank Global Corporate Trust and the Issuer.
(ii) Except as set forth in Section 3(b) and Section 3(d), the Escrow Agent shall be paid any such expenses owed to it directly by or on behalf of the Issuer and shall not disburse from the Escrow Account any such amounts, nor shall the Escrow Agent have any interest in the Escrow Account with respect to such amounts. The provisions of this clause (c) shall survive the termination of this Agreement and survive the resignation or removal of the Escrow Agent.
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(d) Substitutionof Escrow Agent. The Escrow Agent may resign by giving no less than 60 days’ prior written notice to the Issuer and the Trustee. Such resignation shall take effect upon the later to occur of (i) delivery of all Escrowed Property maintained by the Escrow Agent hereunder and copies of all books, records and other documents in the Escrow Agent’s possession relating to the Escrowed Property or this Agreement, in each case to a successor escrow agent mutually approved by the Issuer and the Trustee (which approvals shall not be unreasonably withheld or delayed) and to an account under the control of the Trustee; provided that the “securities intermediary’s jurisdiction” of such successor escrow agent shall be the State of New York for purposes of the UCC, including Section 9-305 and Section 8-110 thereof, and as permitted by Article 4 of the Hague Convention, the law of the State of New York shall govern the Escrow Account and the issues specified in Article 2(1) of the Hague Convention. Such provisions of the immediately preceding sentence shall be an amendment to all account agreements governing the Escrow Account, notwithstanding any provision of such account agreement to the contrary, and (ii) the Issuer, the Trustee and such successor escrow agent entering into this Agreement or any written successor enter into an agreement no less favorable to the interests of the Holders of the Notes and the Trustee than this Agreement. The Escrow Agent shall thereupon be discharged of all obligations under this Agreement and shall have no further duties, obligations or responsibilities in connection herewith. If a successor escrow agent has not been appointed or has not accepted such appointment within 30 days after notice of resignation is given to the Issuer and the Trustee, the Escrow Agent may apply at the expense of the Issuer to a court of competent jurisdiction for the appointment of a successor escrow agent. Any corporation or association into which the Escrow Agent may be converted or merged, or with which it may be consolidated, or to which it may sell all or substantially all of its corporate trust business will automatically become the successor Escrow Agent under this Agreement.
Section 3. Release of Escrowed Property.
(a) If at any time on or prior to the Outside Date, the Issuer delivers to the Escrow Agent and the Trustee an officer’s certificate substantially in the form set forth on Annex I hereto (a “Release Request”) certifying that the following conditions (the “Escrow Release Conditions”) are met or, as applicable, will be met substantially concurrently with or promptly following the release of the Escrowed Property from the Escrow Account (the “Release”; the date of the release, the “Escrow Release Date”):
| (1) | the funds held in the Escrow Account will be used to consummate, or in connection with the consummation or financing of, the Merger; |
|---|---|
| (2) | the Merger will be consummated substantially concurrently with the release of the funds from the Escrow Account; |
| --- | --- |
| (3) | no Default or Event of Default (as each such term is defined in the Indenture) has occurred and is continuing or would result from<br>the release of such funds; and |
| --- | --- |
| (4) | the Escrowed Property will be applied in the manner described under the caption “Use of Proceeds” in the Offering Memorandum. |
| --- | --- |
then the Escrow Agent shall, solely to the extent no Trustee Instruction has been delivered by the Trustee to the Escrow Agent, liquidate all Escrowed Property then held by it and shall pay the Escrowed Property then held by it to or for the account of (and at the direction of) the Issuer as directed and in the manner set forth in the Release Request, in each case by wire transfer of immediately available funds in accordance with the instructions set forth in Schedule A of the Release Request at the time set forth in such Release Request. Upon the Release, the Escrowed Property will be paid out from the Escrow Account in accordance with this Agreement and the Release Request and the Escrow Account will be reduced to zero. If the Release Request is delivered prior to 10:00 a.m. (New York City time) on the Escrow Release Date specified in the Release Request, the Escrow Agent shall make such wire transfer of immediately available funds on the Escrow Release Date. If the Release Request is delivered after 10:00 a.m. (New York City time) on the Escrow Release Date specified in the Release Request, the Escrow Agent shall endeavor to make such wire transfer of immediately available funds on the Escrow Release Date but shall make such wire transfer no later than the immediately following Business Day.
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(b) If the Escrow Agent and the Trustee receive a written notice, substantially in the form set forth in Annex II hereto (an “EscrowRedemption Notice”), from the Issuer to the effect that (i) the Merger Agreement has been terminated on or prior to the Outside Date or (ii) that in the reasonable judgment of the Issuer, the Merger will not be consummated on or prior to the Outside Date (each of (i) and (ii) a “Mandatory Redemption Event”), which notice shall set forth the Special Mandatory Redemption Date (which shall be a date that is no later than the third (3^rd^) Business Day following the Mandatory Redemption Event) and the Special Mandatory Redemption Price, then, solely to the extent no Trustee Instruction has been delivered by the Trustee to the Escrow Agent, the Escrow Agent shall as soon as practicable thereafter liquidate all Escrowed Property then held by it and pay to the Trustee, to the extent of the proceeds of such liquidated Escrowed Property, an amount in cash in U.S. dollars equal to the Special Mandatory Redemption Price (or, if less, all such proceeds) by wire transfer or via internal transfer of immediately available funds in accordance with the instructions set forth in the Escrow Redemption Notice no later than 12:00 p.m. (New York City time) on such Special Mandatory Redemption Date. The Escrow Redemption Notice shall be delivered promptly (and in no event later than one (1) Business Day) following the occurrence of any event specified in subclause (i) or subclause (ii) above.
Concurrently, or as soon as practicable thereafter, with such release to the Trustee, the Escrow Agent shall, solely to the extent no Trustee Instruction has been delivered by the Trustee to the Escrow Agent, to the extent of any excess Escrowed Property remaining after payment of the Special Mandatory Redemption Price:
(i) FIRST, pay, on a pro rata basis, to the Escrow Agent any amount owed at such time, if any, pursuant to Section 5 hereof and to the Trustee for any amounts owed to it pursuant to Section 7.6 of the Indenture; and
(ii) SECOND, pay any remaining amount of such excess Escrowed Property, after indefeasible payment in full of all the obligations under the Indenture, to the Issuer promptly (in such amount and pursuant to such wire instructions as the Issuer shall notify the Escrow Agent in the Escrow Redemption Notice) or as a court of competent jurisdiction may direct, in each case by wire transfer or via internal transfer of immediately available funds in accordance with the instructions and amounts set forth in the Escrow Redemption Notice.
(c) If an Escrow Redemption Notice or an Acceleration Notice delivered pursuant to this Section 3 reveals, or as of 4:00 p.m. (New York City time) on October 6, 2026 it is the case, that the amount of cash in U.S. dollars that constitutes the Escrowed Property in the Escrow Account will be insufficient to pay the Special Mandatory Redemption Price or the Default Amount, as applicable, then no later than 10:00 a.m. (New York City time) on the Special Mandatory Redemption Date (in the case of an Escrow Redemption Notice), the date of the Acceleration Notice (in the case of an Acceleration Notice) or October 7, 2025, as applicable, the Issuer shall deposit (or cause to be deposited) with the Escrow Agent in the Escrow Account as additional Escrowed Property an amount of cash in U.S. dollars that, when taken together with the Escrowed Property then being held in the Escrow Account at such time, will be equal to the Special Mandatory Redemption Price or the Default Amount, as applicable (which, for the avoidance of doubt, will include the amount of accrued and unpaid interest (as specified in the Indenture) due on the Notes). Further to the avoidance of doubt, the Escrow Account will not otherwise (outside of the situation described in this Section 3(c)) be prefunded with cash to pay accrued and unpaid interest on the Notes.
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(d) Notwithstanding clauses (a), (b) and (c) above, if the Escrow Agent receives a written notice from the Trustee substantially in the form set forth in Annex III hereto (an “Acceleration Notice”) to the effect that the principal of, and accrued and unpaid interest on, the Notes (collectively, the “Default Amount”) has become immediately due and payable pursuant to Section 6.2 of the Indenture, the Escrow Agent shall liquidate all Escrowed Property then held by it within one (1) Business Day, and shall release to the Trustee for immediate payment to the Holders of the Notes in accordance with Section 6.10 of the Indenture and, to the extent of the proceeds of such liquidated Escrowed Property, an amount of Escrowed Property sufficient to pay the Default Amount (or, if less, all such proceeds). Concurrently with such release to the Trustee, the Escrow Agent shall, to the extent the Escrowed Property exceeds cash equal to the Default Amount:
(i) FIRST, pay, on a pro rata basis, to the Escrow Agent any amount owed at such time, if any, pursuant to Section 2(c) hereof and Section 5 hereof and to the Trustee any amounts owed to it pursuant to Section 7.6 of the Indenture; and
(ii) SECOND, pay any remaining amount of such excess Escrowed Property to the Issuer,
in each case by wire transfer or via internal transfer of immediately available funds in accordance with the instructions and amounts set forth in Schedule A to Annex III hereto.
(e) In the event that (A) a Release Request has not been delivered by the Issuer pursuant to Section 3(a), (B) an Escrow Redemption Notice has not been delivered by the Issuer pursuant to this Section 3(b) and (C) an Acceleration Notice has not been delivered to the Escrow Agent pursuant to Section 3(d), in each case, on or prior to the Outside Date, then the Escrow Agent shall, without the need for direction or instruction from the Issuer or the Trustee, liquidate all Escrowed Property then held by it and pay to the Trustee an amount in cash in U.S. dollars equal to the Special Mandatory Redemption Price on the Special Mandatory Redemption Date (or, if less, all such proceeds) by wire transfer or via internal transfer of immediately available funds in accordance with the instructions set forth in the Escrow Redemption Notice no later than 12:00 p.m. (New York City time) on October 7, 2026 (which is the Business Day following the Outside Date). Concurrently with such release to the Trustee, the Escrow Agent shall, to the extent the Escrowed Property exceeds cash equal to the Special Mandatory Redemption Price:
(i) FIRST, pay, on a pro rata basis, to the Escrow Agent any amount owed at such time, if any, pursuant to Section 2(c) hereof, and Section 5 hereof and to the Trustee any amounts owed to it pursuant to Section 7.6 of the Indenture; and
(ii) SECOND, pay any remaining amount of such excess Escrowed Property to the Issuer,
in each case by wire transfer or via internal transfer of immediately available funds.
Notwithstanding anything contained herein to the contrary and without limiting the other rights of the Trustee hereunder, in no event shall the Escrow Agent (including, without limitation, in its capacity as securities intermediary) accept the direction of any party other than the Trustee following delivery by Trustee to Escrow Agent of a Trustee Instruction.
Section 4. Limitation of Escrow Agent’s Liability; Responsibilities of Escrow Agent.
The Escrow Agent’s responsibility and liability under this Agreement shall be limited as follows:
(a) the Escrow Agent does not represent, warrant or guaranty to the Trustee or the Holders of the Notes from time to time the performance of the Issuer;
(b) the Escrow Agent shall have no responsibility to the Issuer, the Trustee or the Holders of the Notes from time to time as a consequence of performance or nonperformance by the Escrow Agent hereunder, except for any fraud, gross negligence, bad faith or willful misconduct of the Escrow Agent as finally determined by a court of competent jurisdiction;
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(c) the Issuer shall remain solely responsible for all aspects of the Issuer’s business and conduct;
(d) the Escrow Agent shall not be obligated to supervise, inspect or inform the Issuer or any third party of any matter referred to above; and
(e) the Escrow Agent shall not be required to, and shall not, expend or risk any of its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder.
In no event shall the Escrow Agent be liable (i) for relying upon any judicial or administrative order or judgment, upon the advice of, or any opinion of, counsel or upon any certification, instruction, notice, or other writing delivered to it by the Issuer or the Trustee in compliance with the provisions of this Agreement, (ii) for acting in accordance with or relying upon any instruction, notice, demand, certificate or document believed by it in good faith to be genuine and to have been signed or presented by the proper person, (iii) for any indirect, consequential, punitive, incidental or special damages (including but not limited to loss of profit) regardless of whether the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action or (iv) for the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians; provided, that such nominees, correspondents, designees, subagents or subcustodians were chosen with due care by the Escrow Agent.
The rights and powers granted to the Escrow Agent hereunder are being granted in order to preserve and protect the Trustee’s and the Holders’ security interest in and to the Collateral granted hereby and shall not be interpreted to, and shall not, impose any duties (whether express or implied, and including fiduciary duties) on the Escrow Agent in connection therewith other than those imposed under applicable law. The Escrow Agent shall exercise the same degree of care in the custody and preservation of the Collateral in its possession as it exercises toward its own similar property and which in the reasonable judgment of the Issuer is sufficient, and shall not be deemed to owe any fiduciary duty to the Issuer, the Trustee, the Holders or any other party.
At any time the Escrow Agent may, prior to the delivery by the Trustee of any Trustee Instruction to the Escrow Agent, request in writing an instruction in writing from the Issuer (other than any disbursement pursuant to Section 3) (which such request and instruction shall each also be shared with the Trustee concurrently) and the Escrow Agent may, at its own option, include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations hereunder; provided that any such proposal or action shall not be in contravention of the terms of the Indenture. The Escrow Agent shall not be liable to the Issuer for acting without the Issuer’s consent in accordance with such a proposal on or after the date specified therein if (i) the specified date is at least ten (10) Business Days after the Issuer receives the Escrow Agent’s request for instructions and its proposed course of action, and (ii) prior to so acting, the Escrow Agent has not received the written instructions requested from the Issuer.
The Escrow Agent may act pursuant to the advice of counsel chosen by it with respect to any matter relating to this Agreement, subject to the proposal of a course of action to be taken in lieu of written instructions received from the Issuer or the Trustee, and the reasonable fees and expenses of such counsel shall be paid by the Issuer, and the Escrow Agent shall not be liable for any action taken or omitted in accordance with such advice.
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In the event of any ambiguity in the provisions of this Agreement with respect to any funds, securities or property deposited hereunder, or instruction, notice or certification delivered hereunder, the Escrow Agent shall be entitled to refrain from complying with any and all claims, demands or instructions with respect to such funds, securities or property, and the Escrow Agent shall not be or become liable for its failure or refusal to comply with conflicting claims, demands or instructions, which such “ambiguity” and “conflicts” subject to the reasonable commercial judgment of the Escrow Agent acting upon the reasonable advice of counsel. The Escrow Agent shall be entitled to refuse to act until either any such conflicting or adverse claims or demands shall have been finally determined by a court of competent jurisdiction or settled by agreement between the conflicting claimants as evidenced in a writing reasonably satisfactory to the Escrow Agent, or the Escrow Agent shall have received security or an indemnity satisfactory to the Escrow Agent sufficient to save the Escrow Agent harmless from and against any and all loss, liability or expense which the Escrow Agent may incur by reason of its acting. The Escrow Agent may in addition elect in its sole option to commence an interpleader action or seek other judicial relief or orders as the Escrow Agent may deem necessary.
No provision of this Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder outside of such duties performed fraudulently or with gross negligence, bad faith or willful misconduct.
The Escrow Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Escrow Agent (including, but not limited to, any act or provision of any present or future law or regulation or governmental authority, any act of God, terrorism or war, epidemics, cyberhacking, pandemics, the failure or malfunction of communication or computer systems, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility).
Section 5. Indemnity.
The Issuer shall indemnify, hold harmless and defend the Trustee and the Escrow Agent and their respective directors, officers, agents, employees and controlling persons (each, an “Indemnified Person”) from and against any and all claims, actions, obligations, liabilities and expenses, including reasonable defense costs, reasonable investigative fees and costs, reasonable legal fees, and claims for damages, arising from the Trustee’s or the Escrow Agent’s performance or nonperformance, or in connection with the Escrow Agent’s acceptance of appointment as the Escrow Agent, under this Agreement, including enforcement of this Section 5, except to the extent that such liability, expense or claim shall have been caused by the fraud, gross negligence, bad faith or willful misconduct of any such Indemnified Person, as determined by a court of competent jurisdiction in a final and non-appealable judgment. The provisions of this Section 5 shall survive any termination, satisfaction or discharge of this Agreement as well as the resignation or removal of the Escrow Agent and the Trustee, as applicable.
Section 6. Grant of Security Interest; Instructions to Escrow Agent.
(a) It is the intention of the parties hereto that this Agreement create a true escrow, and the Issuer has no ownership of, or rights in, the Escrow Account or the Escrowed Property other than the limited contractual right to receive the Escrowed Property under the circumstances described in Section 3 hereof. Notwithstanding the intention of the parties set forth in the foregoing sentence, this Agreement shall also constitute a security agreement under the UCC and other applicable law. In furtherance of the foregoing, the Issuer hereby irrevocably grants a security interest in and lien on, and pledge, assign, transfer and set over to the Trustee for its own benefit and the benefit of the Holders of the Notes, all of its right, title and interest in:
(i) the Escrow Funds, the Escrowed Property, the Escrow Account, and all “financial assets” (as such term is defined in Section 8-102(a) of the UCC) and other property now or hereafter placed or deposited in, or delivered to the Escrow Agent for placement or deposit in, the Escrow Account, including, without limitation, all funds held therein, and all Eligible Investments held by (or otherwise maintained in the name of) the Escrow Agent pursuant to Section 2;
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(ii) all “security entitlements” (as such term is defined in Section 8-102(a) of the UCC) from time to time credited to the Escrow Account;
(iii) all claims and rights of whatever nature which the Issuer may now have or hereafter acquire against any third party in respect of any of the Collateral described in this Section 6 (including any claims or rights in respect of any security entitlements credited to an account of the Escrow Agent maintained at The Depository Trust Company or any other clearing corporation) or any other “securities intermediary” (as such terms are defined in Section 8-102(a) of the UCC);
(iv) all rights which the Issuer has under this Agreement and all rights it may now have or hereafter acquire against the Escrow Agent in respect of its holding and managing all or any part of any of the foregoing, together with all books and records, credit files, computer files, programs, printouts and other computer materials and records to the extent related thereto and any “general intangibles” (as defined in Article 9 of the New York UCC) at any time to the extent evidencing or to the extent relating to any of the foregoing; and
(v) all “proceeds” (as such term is defined in Section 9-102(a) of the UCC) of any of the foregoing;
(collectively, the “Collateral”), in order to secure payment of the Special Mandatory Redemption Price and all obligations and indebtedness of the Issuer under the Indenture, the Notes and any other obligation, now or hereafter arising, of every kind and nature, owed by the Issuer under the Indenture or the Notes to the Holders of the Notes or to the Trustee or any predecessor Trustee (collectively, the “Secured Obligations”) until the release of such lien and security interest pursuant to this Section 6. The Escrow Agent hereby acknowledges the Trustee’s security interest and lien as set forth above. Except as set forth in Section 6(i) below, the Issuer shall not grant or cause or permit any other person to obtain a security interest, encumbrance, lien or other claim, direct or indirect, in the Issuer’s right, title or interest in the Escrow Account or any Collateral.
(b) The Issuer and the Trustee hereby irrevocably instruct the Escrow Agent to, and the Escrow Agent shall:
(i) maintain the Escrow Account for the sole and exclusive benefit of the Trustee on its own behalf and on behalf of the Holders of the Notes to the extent specifically required herein; treat all property in the Escrow Account as “financial assets” (as defined in Section 8-102(a) of the UCC); take all steps reasonably specified in writing by the Issuer pursuant to this Section 6 to cause the Trustee to enjoy a continuous perfected first-priority security interest under the UCC, any other applicable statutory or case law or regulation of the State of New York and any applicable law or regulation of the United States in the Collateral; and except as otherwise required by law, maintain the Collateral free and clear of all liens, security interests, safekeeping or other charges, demands and claims of any nature now or hereafter existing in favor of anyone other than the Trustee; and
(ii) promptly notify the Trustee if a Representative Officer of the Escrow Agent receives written notice that any Person other than the Trustee has or purports to have a lien or security interest upon any portion of the Collateral.
In addition to requesting disbursement of amounts held in the Escrow Account pursuant to and in accordance with Section 3, upon an Event of Default and for so long as such Event of Default continues, the Trustee may exercise in respect of the Collateral, in addition to other rights and remedies provided for herein or otherwise available to it, all the rights and remedies of a secured party under the UCC or other applicable law.
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The lien and security interest provided for in this Section 6 shall automatically terminate and cease as to, and shall not extend or apply to, and the Trustee and the Escrow Agent shall release the security interest hereunder in, any funds disbursed by the Escrow Agent to or for the account of (and at the direction of) the Issuer in accordance with Section 3 of this Agreement. The Escrow Agent shall not have any right to receive compensation from the Trustee and shall have no authority to obligate the Trustee or to compromise or pledge its security interest hereunder. Accordingly, the Escrow Agent is hereby directed to cooperate with the Trustee in the exercise of its rights in the Collateral provided for herein.
(c) Any money collected by the Trustee pursuant to the second to last paragraph of Section 6(b) shall be applied as provided in Section 3(d). Neither the Trustee nor the Escrow Agent shall have any liability for any shortfall in the payment of the Special Mandatory Redemption Price.
(d) The security interest of the Trustee granted pursuant hereto shall at all times be valid, perfected and enforceable as a first-priority security interest. The Issuer will take all steps necessary to maintain the security interest created by this Agreement as a perfected first-priority security interest and will execute and deliver or cause to be executed and delivered, or use its reasonable best efforts to procure, all assignments, instruments and other documents, deliver any instruments to the Trustee and take any other actions that are necessary or desirable, and shall direct the Trustee in writing to take all actions necessary on its part, to perfect, continue the perfection of, or protect the first priority of the Trustee’s security interest in and to the Collateral, to protect the Collateral against the rights, claims, or interests of third persons or to effect the purposes of this Agreement. The Issuer represents and warrants that its legal name is that set forth on the signature pages hereof and it is duly organized and is validly existing as a Delaware corporation and is not incorporated under the laws of any other jurisdiction, and during the term of this Agreement, the Issuer will not change its legal name or jurisdiction of incorporation without giving the Trustee 30 days’ prior written notice. The Issuer also hereby authorizes the Trustee to file any financing or continuation statements with respect to the Collateral in such jurisdictions and filing offices and containing such description of Collateral as are reasonably necessary in order to perfect the security interest granted herein without the Issuer’s signature (to the extent permitted by applicable law), and any such filing is hereby authorized to be made by the Holders of the Notes or their counsel on behalf of the Trustee. The Issuer shall pay all reasonable costs incurred in connection with any of the foregoing, it being understood that the Trustee shall have no duty to determine whether to file or record any document or instrument relating to the Collateral. Notwithstanding the authorizations set forth in clause (b) or this clause (d), neither the Trustee nor the Escrow Agent shall have any duty or obligation to file or record any document or otherwise to see to the grant or perfection of any security interest granted hereunder and the Issuer agrees to file or to cause to be filed all such UCC financing statements, including all UCC-1 and/or UCC-3 financing statements, in such jurisdictions and filing offices and containing such description of the Collateral as is necessary in order to perfect the security interest granted herein.
(e) The Issuer hereby appoints the Trustee as attorney-in-fact with full power of substitution to do any act that the Issuer is obligated hereby to do in connection with the Collateral, and the Trustee may, but shall not be obligated to, exercise such rights as the Issuer might exercise with respect to the Collateral and take any action in the Issuer’s name to protect the Trustee’s security interest hereunder.
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(f) Notwithstanding anything herein to the contrary, if at any time the Escrow Agent shall receive any “entitlement order” (as such term is defined in Section 8-102(a)(8) of the UCC) or any other instructions issued by the Trustee directing the disposition of funds in the Escrow Account (any such “entitlement order” or instruction, a “Trustee Instruction”) or otherwise related to the Escrow Account, the Escrow Agent shall comply with any such entitlement order or instructions without further consent by the Issuer or any other person. The Escrow Agent shall notify the Issuer as soon as reasonably practicable upon receipt of any Trustee Instruction. The Trustee authorizes the Escrow Agent to, prior to the delivery by the Trustee to the Escrow Agent of a Trustee Instruction, accept instructions of the Issuer with respect to the Escrow Account (solely to the extent the Issuer is expressly permitted to deliver such instruction hereunder). Notwithstanding anything contained herein to the contrary, in no event shall the Escrow Agent be required to verify the satisfaction of any conditions precedent with respect to the delivery of any Trustee Instruction (including, without limitation, whether any default, Event of Default or similar event has occurred and/or is continuing). In the event of any conflict between an instruction or communication by the Issuer to the Escrow Agent in connection herewith and any Trustee Instruction that has not been expressly cancelled or revoked by the Trustee, the terms of the Trustee Instruction shall govern.
(g) The Escrow Agent represents that the Escrow Agent is a “securities intermediary” (as such term is defined in Section 8-102(a)(14) of the UCC) and that the Escrow Account is a “securities account” (as such term is defined in Section 8-501 of the UCC).
(h) The Issuer hereby represents that the arrangements established under this Section 6 constitute “control” (within the meanings of Sections 8-106 and 9-106 of the UCC) by the Trustee of the Escrow Account. The Escrow Agent and the Issuer have not entered and will not enter into any other agreement with respect to control of the Escrow Account or purporting to limit or condition the obligation of the Escrow Agent to comply with any orders or instructions of the Trustee with respect to the Escrow Account as set forth in this Section 6. In the event of any conflict with respect to control over the Escrow Account between this Agreement (or any portion hereof) and any other agreement now existing or hereafter entered into, the terms of this Agreement shall prevail.
(i) The Escrow Agent hereby agrees that any security interest in, lien on, or encumbrance, claim or right of setoff against, the Escrow Account or any funds therein that it now has or subsequently obtains shall be subordinate to the security interest of the Trustee in the Escrowed Property in the Escrow Account and any or all funds therein or credited thereto. Except as otherwise set forth herein, the Escrow Agent agrees not to exercise any present or future right of recoupment or set-off against the Escrow Account or to assert against the Escrow Account any present or future security interest, banker’s lien or any other lien or claim (including claim for penalties) that the Escrow Agent may at any time have against or in the Escrow Account or any funds therein.
Section 7. Termination.
This Agreement and the security interest in the Escrowed Property evidenced by this Agreement shall terminate automatically and be of no further force or effect upon the distribution of all Escrowed Property in accordance with Section 3 hereof and the advance written consent of the Trustee to the termination hereof; provided, however, that the obligations of the Issuer under Section 2(c) and Section 5 (and any existing claims thereunder) shall survive termination of this Agreement and the resignation or removal of the Escrow Agent. At such time, upon the written request of the Issuer, the Escrow Agent shall deliver to the Issuer all of the Escrowed Property hereunder that has not been disbursed or applied by the Escrow Agent in accordance with the terms of this Agreement and the Indenture. Such delivery shall be without warranty by or recourse to the Escrow Agent in its capacity as such and shall be at the sole expense of the Issuer. Following the termination of this Agreement, the Trustee (i) shall file or authorize the Issuer to file terminations of any financing statements filed in connection with this Agreement and (ii) deliver to the Issuer any other reasonably requested documentation to reflect the release of the Collateral.
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Section 8. Security Interest Absolute.
All rights of the Trustee for its own benefit and the benefit of the Holders of the Notes and security interests hereunder, and all obligations of the Issuer hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Indenture or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Secured Obligations, or any other amendment or waiver of or any consent to any departure from the Indenture;
(c) any exchange, surrender, release or non-perfection of any Liens on any other collateral for all or any of the Secured Obligations; or
(d) to the extent permitted by applicable law, any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Issuer in respect of the Secured Obligations or of this Agreement.
Section 9. Miscellaneous.
(a) Waiver. Any party hereto may specifically waive any breach of this Agreement by any other party, but no such waiver shall be deemed to have been given unless such waiver is in writing, signed by the waiving party and specifically designating the breach waived, nor shall any such waiver constitute a continuing waiver of similar or other breaches.
(b) Invalidity. If for any reason whatsoever any one or more of the provisions of this Agreement shall be held or deemed to be inoperative, unenforceable or invalid in a particular case or in all cases, such circumstances shall not have the effect of rendering any of the other provisions of this Agreement inoperative, unenforceable or invalid, and the inoperative, unenforceable or invalid provision shall be construed as if it were written so as to effectuate, to the maximum extent possible, the parties’ intent.
(c) Assignment. This Agreement is personal to the parties hereto, and the rights and duties of the Issuer hereunder shall not be assignable except with the prior written consent of the other parties. Notwithstanding the foregoing, this Agreement shall inure to and be binding upon the parties and their successors and permitted assigns.
(d) Benefit. This Agreement shall be binding upon the parties hereto and their successors and permitted assigns. Nothing in this Agreement, express or implied, shall give to any person, other than the parties hereto and their successors hereunder, any benefit or any legal or equitable right, remedy or claim under this Agreement.
(e) EntireAgreement; Amendments. This Agreement, the Fee Letter and the Indenture contain the entire agreement among the parties with respect to the subject matter hereof and supersede any and all prior agreements, understandings and commitments, whether oral or written. Any amendment to this Agreement is required to be executed by each party hereto. Any consent to any departure by the Issuer from any provision of this Agreement shall be effective only if made or duly given in compliance with all of the terms and provisions (including the provisions relating to amendments) of the Indenture (assuming for such purposes that this Agreement is a Note Document, mutatis mutandis), and neither the Escrow Agent nor the Trustee shall be deemed, by any act, delay, indulgence, omission or otherwise, to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default or in any breach of any of the terms and conditions hereof; provided, for the avoidance of doubt and without limitation, that the parties hereto may amend or supplement this Agreement without the consent of any Holder in order to cure any ambiguity, omission, mistake, defect or inconsistency as determined by the Issuer in good faith. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any rights or remedies provided by law.
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(f) Notices. Subject to the second sentence of this paragraph (f), all notices and other communications required or permitted to be given or made under this Agreement shall be in writing and shall be deemed to have been duly given and received (i) on the day of delivery; (ii) three (3) Business Days following the day sent, when sent by United States certified mail, postage and certification fee prepaid, return receipt requested, addressed as set forth below; (iii) when transmitted by email or facsimile to the e-mail address or telephone number set forth below with oral or written confirmation of receipt by the recipient; or (iv) one (1) Business Day following the day timely delivered to a next-day air courier addressed as set forth below. Notices to the Trustee and Escrow Agent shall not be considered received until actually received, except for notice via e-mail transmission, which such notice shall be effective only when the Trustee or Escrow Agent, as recipient, by return e-mail or notice delivered by other method (including oral notice confirmed later in writing or posted mail) acknowledges having received the e-mail:
To the Escrow Agent:
U.S. Bank National Association 60 Livingston Ave
EP-MN-WS3C
St. Paul, MN 55107
Attention: Barbara Nastro
Phone: (212) 361-2525
Email: barbara.nastro@usbank.com
To the Trustee:
U.S. Bank Trust Company, National Association
Global Corporate Trust Services
100 Wall Street Suite 600
New York, NY 10005
Attention: Corporate Trust Services; Christopher Grell
Administrator Phone: (212) 951-6990
Email: christopher.grell@usbank.com
To the Issuer:
c/o Getty Images Holdings, Inc.
605 5th Ave South, Ste 400
Seattle, WA 98104
Phone: (206) 925-5000
Attention: Kjelti Kellough, Senior Vice President,
General Counsel & Corporate Secretary
Email: [*]
16
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West, Floor 30
New York, New York 10001
Phone: +44 20-7519-7600
Attention: Noel K. Hughes
Email: noel.hughes@skadden.com
or at such other address as the specified entity most recently may have designated in writing in accordance with this Section 9(f).
(g) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by email, facsimile or other electronic transmission (e.g., a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart thereof. All notices, approvals, consents, requests and any communications hereunder must be in writing, provided that any communication sent to the Trustee or the Escrow Agent hereunder that is required to be signed must be in the form of a document that is signed manually or by way of a digital signature provided by DocuSign, AdobeSign or such other digital signature provider as specified in writing to the Trustee and this Agreement by the authorized representative of the Issuer.
(h) Choiceof Law; Submission to Jurisdiction. THIS AGREEMENT, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE PARTIES TO THIS AGREEMENT HEREBY AGREE THAT JURISDICTION OVER SUCH PARTIES AND OVER THE SUBJECT MATTER OF ANY ACTION OR PROCEEDING ARISING UNDER THIS AGREEMENT MAY BE EXERCISED BY A COMPETENT COURT OF THE CITY AND STATE OF NEW YORK, OR BY A COMPETENT UNITED STATES COURT, SITTING IN NEW YORK CITY. EACH OF THE ISSUER, THE TRUSTEE AND THE ESCROW AGENT HEREBY SUBMITS TO THE PERSONAL JURISDICTION OF SUCH COURTS. EACH OF THE PARTIES HERETO WAIVES THE RIGHT TO A TRIAL BY JURY. THE ISSUER HEREBY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENT TO SERVICE OF PROCESS BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO THEM AT THE ADDRESS LAST SPECIFIED FOR NOTICES HEREUNDER, AND SUCH SERVICE SHALL BE DEEMED COMPLETED TEN (10) CALENDAR DAYS AFTER THE SAME IS SO MAILED. FOR PURPOSES OF THE UCC, NEW YORK SHALL BE THE ESCROW AGENT’S JURISDICTION (INCLUDING WITH RESPECT TO ITS CAPACITY AS SECURITIES INTERMEDIARY).
(i) Representationsand Warranties of Issuer. The Issuer hereby represents and warrants that this Agreement has been duly authorized, executed and delivered on its behalf and constitutes their legal, valid and binding obligation, enforceable in accordance with its terms (except as the enforcement thereof may be limited by bankruptcy, reorganization, insolvency (including, without limitation, all laws relating to fraudulent transfers), moratorium or other laws relating to or affecting creditors’ rights and remedies generally and except as the enforcement thereof is subject to equitable principles regardless of whether enforcement is considered in a proceeding at law or in equity). The execution, delivery and performance of this Agreement by the Issuer does not violate any applicable law or regulation to which the Issuer is subject and does not require the consent of any governmental or other regulatory body to which the Issuer is subject, except for such consents and approvals as have been obtained and are in full force and effect as of the date hereof. The Issuer is, with respect to the Collateral delivered pursuant to this Agreement, the beneficial owner of such Collateral, free and clear of any Lien or claims of any Person (except for the security interest granted under this Agreement) and is the only “entitlement holder” (as defined in Section 8- 102(a)(7) of the UCC) of the Escrow Account and the “financial assets” (as defined in Section 8- 102(a) of the UCC).
17
(j) Representationsand Warranties of Escrow Agent and the Trustee. The Escrow Agent hereby represents and warrants that this Agreement has been duly authorized, executed and delivered on its behalf. The Trustee hereby represents and warrants that the person executing this Agreement is duly authorized to so execute this Agreement, and that this Agreement has been duly executed and delivered on its behalf.
(k) NoAdverse Interpretation of Other Agreements. This Agreement may not be used to interpret another pledge, security or debt agreement of the Issuer or any of its subsidiaries or affiliates. No such pledge, security or debt agreement may be used to interpret this Agreement.
(l) Interpretationof Agreement. All terms not defined herein or in the Indenture shall have the meaning set forth in the UCC, except where the context otherwise requires. To the extent a term or provision of this Agreement relating to the Trustee or the Issuer conflicts with the Indenture, the Indenture shall control with respect to the subject matter of such term or provision. Acceptance of or acquiescence in a course of performance rendered under this Agreement shall not be relevant to determine the meaning of this Agreement even though the accepting or acquiescing party had knowledge of the nature of the performance and opportunity for objection.
(m) Survivalof Provisions. All representations, warranties and covenants of the Issuer contained herein shall survive the execution and delivery of this Agreement, and shall terminate only upon the termination of this Agreement.
(n) PatriotAct. To help the government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify and record information that identifies each person who opens an account. For a non-individual person such as a business entity, a charity, a trust or other legal entity, the Escrow Agent will ask for documentation to verify its formation and existence as a legal entity. The Escrow Agent may also ask to see financial statements, licenses, identification and authorization documents from individuals claiming authority to represent the entity or other relevant documentation.
(o) SecurityAdvice. The Issuer acknowledges that regulations of the Comptroller of the Currency grant the Issuer the right to receive brokerage confirmations of the security transactions as they occur. The Issuer specifically waives such notification to the extent permitted by law and will receive periodic cash transaction statements that will detail all investment transactions.
(p) Call-BackProcedures. Concurrently with the execution of this Agreement, the Issuer shall deliver to the Escrow Agent authorized signers’ forms in the form of Schedule I to this Agreement. Once delivered to the Escrow Agent, Schedule I may be revised, supplemented or rescinded only in writing signed by an authorized representative of the applicable party in the manner set forth therein. Such revisions, supplements or rescissions shall be effective on the next Business Day after delivery thereof (or, if delivered after 2:00 p.m. (New York City time), on the second Business Day after delivery thereof) to the Escrow Agent at its notice address set forth in Section 9(f) (or, if earlier, when countersigned by the Escrow Agent). If a revised Schedule I or a rescission of, or supplement to, an existing Schedule I is delivered to the Escrow Agent by an entity that is a successor-in-interest to the Issuer, such document shall be accompanied by additional documentation reasonably requested by the Escrow Agent showing that such entity has succeeded to the rights and responsibilities of the applicable party (which, for the avoidance of doubt, shall be deemed to be satisfactory to the Escrow Agent if in the form of a certificate of merger of the applicable entity). The Issuer agrees that the security procedures set forth in this clause (p) are commercially reasonable. The Issuer understands that the Escrow Agent’s inability to receive or confirm funds transfer instructions may result in a delay in accomplishing such funds transfer, and agrees that the Escrow Agent shall not be liable for any loss caused by any such delay, except to the extent that such loss shall have been caused by the fraud, gross negligence or willful misconduct of the Escrow Agent as finally determined by a court of competent jurisdiction.
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(q)Escrowed PropertyValue. Notwithstanding anything to the contrary herein, the Escrowed Property may be used to pay any amounts due hereunder; provided that, after giving effect to any such payments (other than any payments in accordance with Section 3 hereof), the amount available to be immediately withdrawn from the Escrow Account would be equal to or in excess of $661,391,000.
(r) Compliancewith Indenture. Notwithstanding anything to the contrary herein, in no event shall this Agreement require or permit any action that would be in contravention of the Indenture.
[Signature Pages Follow]
19
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the day first above written.
| U.S. BANK NATIONAL ASSOCIATION, as Escrow Agent (including, without limitation, in its capacity as securities intermediary) | ||
|---|---|---|
| By: | /s/ Christopher J. Grell | |
| Name: | Christopher J. Grell | |
| Title: | Vice President | |
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, not in its individual capacity but solely as Trustee | ||
| By: | /s/ Christopher J. Grell | |
| Name: | Christopher J. Grell | |
| Title: | Vice President |
[Signature Page to Escrow Agreement]
| Getty Images, Inc., as Issuer | ||
|---|---|---|
| By: | /s/ Kjelti Kellough | |
| Name: | Kjelti Kellough | |
| Title: | Senior Vice President, General Counsel & Corporate Secretary |
[Signature Page to Escrow Agreement]
ANNEX I
FORM OF RELEASE REQUEST
[ ] RELEASE REQUEST
$628,400,000
10.500% SENIOR SECURED NOTES DUE 2030
[●], 202[6]
U.S. Bank National Association, as Escrow Agent
U.S. Bank Trust Company, National Association, as Trustee
Global Corporate Trust Services
100 Wall Street, Suite 600
New York, NY 10005
Attention: Corporate Trust Services;
Administrator Attention: Christopher J. Grell
U.S. Bank Trust Company, National Association, as Trustee
Global Corporate Trust
100 Wall Street, Suite 600
New York, NY 10005
Attention: Corporate Trust Services; Christopher J. Grell
Re: Release Request Officer’s Certificate
Ladies and Gentlemen:
We refer to the Escrow Agreement, dated as of October 21, 2025 (the “Escrow Agreement”), among you (the “Escrow Agent”), the Trustee under the Indenture (as defined therein) and Getty Images, Inc. (the “Issuer”). Capitalized terms used herein shall have the meaning given in the Escrow Agreement (including those terms defined by reference to the Indenture referred to therein).
This Officer’s Certificate constitutes a Release Request under the Escrow Agreement. The Issuer hereby notifies you and certifies to you as follows pursuant to Section 3(a) of the Escrow Agreement:
| (1) | the funds held in the Escrow Account will be used to consummate, or in connection with the consummation<br>or financing of, the Merger; |
|---|---|
| (2) | the Merger will be consummated substantially concurrently with the release of the funds from the Escrow<br>Account; |
| --- | --- |
| (3) | no Default or Event of Default (as each such term is defined in the Indenture) has occurred and is continuing<br>or would result from the release of such funds; and |
| --- | --- |
| (4) | the Escrowed Property will be applied in the manner described under the caption “Use of Proceeds”<br>in the Offering Memorandum. |
| --- | --- |
The Issuer hereby notifies you and certifies to you that the release of the entire amount of funds from the Escrow Account is currently permitted in accordance with Section 3(a) of the Escrow Agreement and requests that you release such amounts on [DATE] as set forth on Schedule A hereto. The Escrow Agent is entitled to rely on the foregoing in disbursing Escrowed Property as specified in this Release Request.
[Signature page follows]
Annex I-1
| Getty Images, Inc., as Issuer | |
|---|---|
| By: | |
| Name: | |
| Title: |
[Signature page to Escrow Release Request]
Annex I-2
Schedule A
WIRE INSTRUCTIONS
________________________________________________
Name of Bank:
ABA Number of Bank:
Account Number at Bank:
Name of Account
ANNEX II
FORM OF ESCROW REDEMPTION NOTICE
[ISSUER LETTERHEAD]
10.500% SENIOR SECURED NOTES DUE 2030
[●], 2026
U.S. Bank National Association, as Escrow Agent
U.S. Bank Trust Company, National Association, as Trustee
Global Corporate Trust Services
100 Wall Street, Suite 600
New York, NY 10005
Attention: Corporate Trust Services; Christopher J. Grell
Administrator Attention:
U.S. Bank Trust Company, National Association, as Trustee
Global Corporate Trust Services
100 Wall Street, Suite 600
New York, NY 10005
Attention: Corporate Trust Services; Christopher J. Grell
Re: Escrow Redemption Notice
Ladies and Gentlemen:
We refer to the Escrow Agreement, dated as of October 21, 2025 (the “Escrow Agreement”), among you (the “Escrow Agent”), the Trustee under the Indenture (as defined therein) and Getty Images, Inc. (the “Issuer”). Capitalized terms used herein shall have the meaning given in the Escrow Agreement.
This notice constitutes an Escrow Redemption Notice under the Escrow Agreement, and the undersigned hereby certifies to you pursuant to Section 3(b) of the Escrow Agreement that (a) the Issuer informs the Escrow Agent in writing that [the Merger Agreement has been terminated on or prior to the Outside Date][, in the reasonable judgment of the Issuer, the Merger will not be consummated on or prior to the Outside Date] and the Special Mandatory Redemption is to occur and (b) the Special Mandatory Redemption Date and Special Mandatory Redemption Price are as follows:
| Special Mandatory Redemption Date | [●], 2026 |
|---|---|
| Special Mandatory Redemption Price (excluding Accrued and Unpaid Interest) | $[●] for all outstanding Notes |
| Accrued and Unpaid Interest | $[●] |
Annex II-1
The Issuer hereby requests that you pay to the Trustee the Special Mandatory Redemption Price (or if less, all amounts on deposit in the Escrow Account) in accordance with the instructions set forth below:
U.S. Bank Trust Company, National Association, as Trustee
| Proceeds to be delivered | $[●] |
|---|
U.S. Bank National Association
U.S. Bank N.A.
ABA 091000022
BNF US BANK TFM ESCROW
| Beneficiary Account Number: | [*] |
|---|---|
| Beneficiary Account Address: | [*] |
| [*] |
Ref: 0176269NS/[ ]
The Issuer hereby further requests that, concurrently with the release of the Special Mandatory Redemption Price (or if less, all amounts on deposit in the Escrow Account) to the Trustee pursuant to Section 3(b) of the Escrow Agreement, you release out of any excess Escrowed Property such amounts on [DATE] as set forth on Schedule A hereto.
Annex II-2
The Escrow Agent is entitled to rely on the foregoing in disbursing Escrowed Property as specified in this notice.
| Getty Images, Inc., as Issuer | |
|---|---|
| By: | |
| Name: | |
| Title: |
Annex II-3
Schedule A
WIRE INSTRUCTIONS
FIRST, U.S. Bank National Association, as Escrow Agent
| Proceeds to be delivered: | $[●] |
|---|
U.S. Bank National Association
U.S. Bank N.A.
ABA 091000022
BNF US BANK TFM ESCROW
Beneficiary Account Number: [*]
Ref: [*]
and, [ ] as counsel to theTrustee and Escrow Agent
| Proceeds to be delivered: | $[●] |
|---|
US Bank
Routing No.
Acct:
Account No:
Swift Code
Ref: File No.
SECOND, [●]
| Proceeds to be delivered: | $[●] |
|---|---|
| Name of Bank: | [●] |
| ABA Number of Bank: | [●] |
Account Number at Bank:
Name of Account:
Reference:
Annex II-4
ANNEX III
FORM OF ACCELERATION NOTICE
[TRUSTEE LETTERHEAD]
10.500% SENIOR SECURED NOTES DUE 2030
[●], 202[6]
U.S. Bank National Association, as Escrow Agent
100 Wall Street, Suite 600
New York, NY 10005
Attention: Christopher J. Grell
Re: Acceleration Notice
Ladies and Gentlemen:
We refer to the Escrow Agreement, dated as of October 21, 2025 (the “Escrow Agreement”), among you (the “Escrow Agent”), the Trustee under the Indenture (as defined therein) and Getty Images, Inc. (the “Issuer”). Capitalized terms used herein shall have the meaning given in the Escrow Agreement.
This notice constitutes an Acceleration Notice under the Escrow Agreement, and the undersigned hereby certifies to you pursuant to Section 3(d) of the Escrow Agreement that the Default Amount has become immediately due and payable pursuant to Section 6.2 of the Indenture.
The Trustee hereby requests that you liquidate the Escrowed Property and pay to the Trustee for payment to the Holders of the Notes, to the extent of the proceeds of such liquidated Escrowed Property, an amount of U.S. dollars in cash sufficient to pay the Default Amount (or, if less, all such proceeds) pursuant to Section 3(e) of the Escrow Agreement, in accordance with the instructions set forth below:
U.S. Bank Trust Company, National Association, as Trustee
| Proceeds to be delivered | $[●] |
|---|
U.S. Bank National Association
U.S. Bank N.A.
ABA 091000022
BNF US BANK TFM ESCROW
| Beneficiary Account Number: | [*] |
|---|---|
| Beneficiary Account Address: | [*] |
| [*] |
Ref: 0176269NS/[ ]
The Trustee hereby further requests that, concurrently with the release to the Trustee of the amount described above pursuant to Section 3(d) of the Escrow Agreement, you release out of any excess Escrowed Property such amounts on [DATE] as set forth on Schedule A hereto.
Annex III-1
The Escrow Agent is entitled to rely on the foregoing in disbursing Escrowed Property as specified in this notice.
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, not in its individual capacity but solely as Trustee | |
|---|---|
| By: | |
| Name: | |
| Title: |
[Signature Page to Acceleration Notice]
Annex III-2
Schedule A
WIRE INSTRUCTIONS
FIRST, U.S. Bank National Association, as Escrow Agent
| Proceeds to be delivered: | $[●] |
|---|
U.S. Bank National Association
U.S. Bank N.A.
ABA 091000022
BNF US BANK TFM ESCROW
Beneficiary Account Number: [*]
Ref: [*]
and, Thompson Hine LLP as counsel to theTrustee and Escrow Agent
| Proceeds to be delivered: | $[●] |
|---|
US Bank
Routing No. 101000187
Acct: Stinson LLP
Account No:
Swift Code – [*]
Ref: File No. [*]
Annex III-3
SCHEDULE I
Reference is made to the Escrow Agreement, by and among Getty Images, Inc. (the “Issuer”), U.S. Bank Trust Company, National Association, as Trustee, and US Bank National Association, a national banking association, as escrow agent and securities intermediary (in such capacities the “Escrow Agent”) dated as of October 21, 2025 (the “ Escrow Agreement”). Capitalized terms used herein and not defined shall have the meanings given them in the Escrow Agreement.
1. Designation of Authorized Persons:
| 1(a) | The Issuer hereby designates each of the persons listed in Part A below as its authorized person(s)<br>(each, an “Authorized Person”) for purposes of the Escrow Agreement, and confirms that the title, contact information<br>and specimen signature of each such Authorized Person as set forth in Part A are true and correct. Each Authorized Person is authorized<br>to initiate and approve transactions of all types for the Escrow Account established under the Escrow Agreement. |
|---|---|
| 1(b) | The Issuer may, at any time, amend Schedule I by signing and delivering to the Escrow Agent<br>an amended Schedule I. Any such amended Schedule I shall not be effective unless and until the Escrow Agent acknowledges<br>such amendment by countersigning the amended Schedule I. The Escrow Agent shall be entitled to a reasonable time to act to<br>implement any changes on an amended Schedule I. |
| --- | --- |
| 2. | Authentication Procedures for Escrow Redemption Notice and Release Request |
| --- | --- |
| 2(a) | The Escrow Agent is authorized to follow and rely upon any Escrow Redemption Notice or Release Request<br>delivered to the Escrow Agent. The Escrow Agent shall have no duty or obligation to verify that the person who signs the Escrow Redemption<br>Notice or Release Request on behalf of the Issuer is, in fact, duly authorized to give instructions on behalf of the Issuer, other than<br>to verify that the name and signature of the person signing the Escrow Redemption Notice or Release Request appears to be the same as<br>the name and signature of an Authorized Person in Part A below. The Issuer acknowledges and agrees that it is fully informed of the<br>protections and risks associated with the various methods of transmitting an Escrow Redemption Notice or Release Request to the Escrow<br>Agent, and that there may be more secure methods of transmitting an Escrow Redemption Notice or Release Request other than the method<br>selected by the Issuer. The Escrow Agent shall have no responsibility or liability for any losses or damages of any nature that may arise<br>from (i) any action taken or not taken by the Escrow Agent in reliance on an Escrow Redemption Notice or Release Request, (ii) as a result<br>of the Issuer’s reliance upon or use of any particular method of delivering instructions to the Escrow Agent, including the risk<br>of interception of such instruction and misuse by third parties or (iii) any officer or Authorized Person of the Issuer named in an incumbency<br>certificate or Part A below prior to actual receipt by the Escrow Agent of a more current incumbency certificate or an updated Part A<br>and a reasonable time for the Escrow Agent to act upon such updated or more current certificate or Part A. |
|---|
Sch. I-1
| 2(b) | The Issuer and the Escrow Agent hereby agree that the following security procedures shall be used to verify<br>the authenticity of an Escrow Redemption Notice or Release Request delivered to the Escrow Agent under the Escrow Agreement: |
|---|---|
| (i) | The Escrow Redemption Notice or Release Request must include the name and signature of an Authorized Person<br>of the Issuer. The Escrow Agent will check that the name and signature of the person identified on the Escrow Redemption Notice or Release<br>Request appears to be the same as the name and signature of an Authorized Person of the Issuer; |
| --- | --- |
| (ii) | The Escrow Agent will make a telephone call to an Authorized Person of the Issuer (which Authorized Person<br>may be the same person as the Authorized Person who signed the Escrow Redemption Notice or Release Request) at any telephone number for<br>such Authorized Person as set forth in Part B in order to obtain oral confirmation of delivery of the Escrow Redemption Notice or<br>Release Request; and |
| --- | --- |
| (iii) | If the Escrow Redemption Notice or Release Request is sent to the Escrow Agent by email, the Escrow Agent<br>also shall review such email address to verify that the Escrow Redemption Notice or Release Request appears to have been emailed from<br>an email address for an Authorized Person of the Issuer as set forth in Part A (or from an email address for a person authorized<br>under Part C to email an Escrow Redemption Notice or Release Request to the Escrow Agent on behalf of the Authorized Persons). |
| --- | --- |
| 2(c) | The Issuer acknowledges and agrees that given the Issuer’s particular circumstances, including the<br>nature of its business, the size, type and frequency of its instructions, transactions and files, internal procedures and systems, the<br>alternative security procedures offered by the Escrow Agent (e.g., in-person delivery to the Escrow Agent) and the security procedures<br>in general use by other customers and banks similarly situated, the security procedures set forth in this Section 2 are a commercially<br>reasonable method of verifying the authenticity of a payment order in an Escrow Redemption Notice or Release Request. |
| --- | --- |
| 2(d) | The Escrow Agent is authorized to execute, and the Issuer expressly agrees to be bound by any payment<br>order in an Escrow Redemption Notice or Release Request issued in its name (and associated funds transfer) (i) that is accepted by the<br>Escrow Agent in accordance with the security procedures set forth in this Section 2, whether or not authorized by the Issuer and/or<br>(ii) that is authorized by or on behalf of the Issuer or for which the Issuer is otherwise bound under the law of agency, whether or not<br>the security procedures set forth in this Section 2 were followed, and to debit any relevant account of the Escrow Agent for the<br>amount of the payment order. Any action taken by the Escrow Agent pursuant to this paragraph prior to the Escrow Agent’s actual<br>receipt and acknowledgement of a notice of revocation, cancellation or amendment of an Escrow Redemption Notice or Release Request shall<br>not be affected by such notice. |
| --- | --- |
| 2(e) | The security procedures set forth in this Section 2 are intended to verify the authenticity of a<br>payment order in an Escrow Redemption Notice or a Release Request provided to the Escrow Agent and are not designed to, and do not, detect<br>errors in the transmission or content of any payment order. The Escrow Agent is not responsible for detecting an error in a payment order,<br>regardless of whether any party believes the error was apparent, and the Escrow Agent is not liable for any damages arising from any failure<br>to detect an error. |
| --- | --- |
| 2(f) | When instructed to credit or pay a party by both name and a unique numeric or alphanumeric identifier<br>(e.g., ABA number or account number), the Escrow Agent, and any other banks participating in the funds transfer, may rely solely<br>on the numerical identifier, even if it identifies a party different than the party named. The Issuer agrees to be bound by the rules<br>of any funds transfer network used in connection with any payment order accepted by the Escrow Agent hereunder. |
| --- | --- |
| 2(g) | The Escrow Agent shall not be obliged to make any payment<br>requested in an Escrow Redemption Notice or Release Request if it is unable to validate the authenticity of the request by the security<br>procedures set forth in this Section 2. The Escrow Agent’s inability to confirm a payment order may result in a delay or failure<br>to act on that payment order. Notwithstanding anything else in the Escrow Agreement, the Escrow Agent shall not be required to treat<br>a payment order as having been received until the Escrow Agent has authenticated it pursuant to the security procedures in this Section 2<br>and shall not be liable or responsible for any losses or liability arising in connection with such delay or failure to act. |
| --- | --- |
Sch. I-2
SCHEDULE I
Part A
Part A
Name, Title, Telephone Number, Email Address and Specimen Signature
for Person(s) designated to provide direction, including funds transfer instructions, and
to otherwise act on behalf of the Issuer
| Name | Title | Telephone Number | Email Address | Specimen Signature |
|---|---|---|---|---|
| Steven Kanner | Vice President, Investor Relations & Treasury | [*] | [*] | |
| Kjelti Kellough | Senior Vice President, General Counsel & Corporate Secretary | [*] | [*] | |
| Jennifer Leyden | Chief Financial Officer | [*] | [*] |
Sch. I-A-1
SCHEDULE I
Part B
Part B
Name, Title, Telephone Number and Email Address for
Person(s) designated to confirm funds transfer instructions
| Name | Title | Telephone Number | Email Address |
|---|---|---|---|
| Steven<br> Kanner | Vice<br> President, Investor Relations & Treasury | [*] | [*] |
| Kjelti<br> Kellough | Senior<br> Vice President, General Counsel & Corporate Secretary | [*] | [*] |
| Jennifer<br> Leyden | Chief<br> Financial Officer | [*] | [*] |
Sch. I-B-1
SCHEDULE I
Part C
Part C
Personal Information of Authorized Persons
Name, Country of Citizenship and Country of Residence
| Name | Country of Citizenship | Country of Residence |
|---|---|---|
| Steven Kanner | United States of America | United States of America |
| Kjelti Kellough | United States of America | United States of America |
| Jennifer Leyden | United States of America | United States of America |
Additional Email Addresses:
The following additional email addresses may also be used by the Escrow Agent to verify the email address used to send any Escrow Redemption Notice or Release Request to the Escrow Agent:
Email 1: [ ]
Sch. I-C-1
COMPLETE BELOW TO UPDATE SCHEDULE I
The Issuer may amend this Schedule I by signing and delivering to the Escrow Agent such amended Schedule I. Any amendment to Schedule I shall be effective once signed by the Issuer and the Escrow Agent and shall entirely supersede and replace any prior Schedule I to the Escrow Agreement.
| [ ] | |
|---|---|
| By: | |
| Name: | |
| Title: | |
| Date: |
ACKNOWLEDGED:
U.S. Bank National Association
(as Escrow Agent)
| By: | |
|---|---|
| Name: | |
| Title: | |
| Date: |
Internal Use Only:
| ☐ | Updated details of Authorized Persons completed in full |
|---|---|
| ☐ | Signed by a representative of Issuer per relevant board resolutions/certificate of incumbency on file (if relevant). |
| --- | --- |
| ☐ | Call-back performed to Issuer to confirm authenticity of updated Schedule I: |
| --- | --- |
Person Called:
Date of Call:
Time of Call:
Telephone number used for call-back: (must be a No. already on filefor Issuer)
Reviewed by (name):
Signature:
Date:
Exhibit 99.1
Getty Images Announces Final Results of Exchange Offer and ConsentSolicitation
October 20, 2025
Getty Images Holdings, Inc. (NYSE: GETY) (“Getty Images”) announced today the final results of the previously announced offer by Getty Images, Inc. (the “Issuer”), an indirect wholly owned subsidiary of Getty Images, to exchange (the “Exchange Offer”) any and all of the Issuer’s issued and outstanding unsecured 9.750% Senior Notes due 2027 (the “Old Notes”) for newly issued unsecured 14.000% Senior Notes due 2028 (the “New Notes”) of the Issuer and the related solicitation of consents (the “Consent Solicitation”) to certain proposed amendments to the terms of the indenture governing the Old Notes. The Exchange Offer and Consent Solicitation were made pursuant to the terms of and subject to the conditions set forth in a confidential Offering Memorandum and Consent Solicitation Statement, dated September 18, 2025 (the “Offering Memorandum”).
According to Accuratus Tax and CA Services LLC, using the commercial names “Bondholder Communications Group” or “BondCom”, the information and exchange agent for the Exchange Offer and Consent Solicitation (the “Information and Exchange Agent”), as of 5:00 p.m., New York City time, on October 17, 2025 (the Expiration Time”), the principal amount of Old Notes set forth in the table below had been validly tendered and not validly withdrawn (and consents thereby deemed validly given and not validly revoked) in the Exchange Offer and the Consent Solicitation:
| Old Notes to be<br><br> Exchanged | CUSIP / ISIN <br><br>Nos. of Old Notes | Aggregate Principal <br><br>Amount Tendered and<br><br> Accepted | Percent of Old Notes<br><br> Tendered and Accepted <br><br>and Consents Delivered <br><br>At Expiration |
|---|---|---|---|
| 9.750% Senior Notes due 2027 | 144A CUSIP: 374276AJ2<br><br> <br>144A ISIN: US374276AJ21<br><br> <br>Reg S CUSIP: U3742LAA5<br><br> <br>Reg S ISIN: USU3742LAA53 | $294,686,000 | 98.23% |
The Issuer has accepted all tendered Old Notes. As a result, the Issuer will issue New Notes in an aggregate principal amount of $294,686,000 in exchange for the tendered Old Notes. The settlement date for the Exchange Offer is expected to be October 21, 2025. Following the settlement date, $5,314,000 aggregate principal amount of Old Notes will remain outstanding.
No Offer or Solicitation
This press release is for informational purposes only and is neither an offer to purchase nor a solicitation of an offer to sell the New Notes. The Exchange Offer and Consent Solicitation were only made pursuant to the Offering Memorandum. The Exchange Offer was not made to holders of Old Notes in any jurisdiction in which the making or acceptance thereof would not be in compliance with the securities, blue sky or other laws of such jurisdiction.
The complete terms and conditions of the exchange offer and a related consent solicitation were set forth in the Offering Memorandum.
No Registration
The New Notes will not be registered under the Securities Act, or any other applicable securities laws and, unless so registered, the New Notes may not be offered, sold, pledged or otherwise transferred within the United States or to or for the account of any U.S. person, except pursuant to an exemption from the registration requirements thereof. Accordingly, the New Notes are being offered and issued only (i) to persons reasonably believed to be “qualified institutional buyers” (as defined in Rule 144A under the Securities Act) and (ii) to non-“U.S. persons” who are outside the United States (as defined in Regulation S under the Securities Act).
Forward Looking Statements
Certain statements included in this press release that are not historical facts are forward-looking statements for purposes of the safe harbor provisions under the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of the words such as “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” “should,” “would,” “plan,” “project,” “forecast,” “predict,” “potential,” “seem,” “seek,” “future,” “outlook,” “target” or similar expressions that predict or indicate future events or trends or that are not statements of historical matters. These forward-looking statements include, but are not limited to, statements regarding estimates and forecasts of other financial and performance metrics and projections of market opportunity, the entry into the third supplemental indenture and implementation of the proposed amendments, the settlement of the Exchange Offer and Consent Solicitation, the issuance of the New Notes and the payment of the total consideration and accrued and unpaid interest. These statements are based on various assumptions, whether or not identified in this press release, and on the current expectations of the management of Getty Images and the Issuer and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on by any investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of Getty Images and the Issuer.
These forward-looking statements are subject to a number of risks and uncertainties, including: the risks and uncertainties associated with the Exchange Offer, the risk of termination of the Exchange Offer and any adverse effects on Getty Images and the Issuer of any such termination and other risks and uncertainties identified in “Item 1A. Risk Factors” of Getty Images’ most recently filed Annual Report on Form 10-K (the “2024 Form 10-K”). If any of these risks materialize or our assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements.
These and other factors that could cause actual results to differ from those implied by the forward-looking statements in this press release are more fully described under the heading “Item 1A Risk Factors” in the 2024 Form 10-K and in our other filings with the SEC. The risks described under the heading “Item 1A Risk Factors” in the 2024 Form 10-K and other filings with the SEC are not exhaustive. New risk factors emerge from time to time and it is not possible to predict all such risk factors, nor can Getty Images or the Issuer assess the impact of all such risk factors on their business or the extent to which any factor or combination of factors may cause actual results to differ materially from those contained in any forward-looking statements. All forward looking statements attributable to Getty Images or the Issuer or persons acting on their behalf are expressly qualified in their entirety by the foregoing cautionary statements. Getty Images and the Issuer undertake no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
2
In addition, the statements of belief and similar statements reflect the beliefs and opinions of Getty Images and the Issuer on the relevant subject. These statements are based upon information available to Getty Images and the Issuer, as applicable, as of the date of this press release, and while they believe such information forms a reasonable basis for such statements, such information may be limited or incomplete, and statements should not be read to indicate that Getty Images and the Issuer have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain and you are cautioned not to unduly rely upon these statements.
About Getty Images
Getty Images (NYSE: GETY) is a preeminent global visual content creator and marketplace that offers a full range of content solutions to meet the needs of any customer around the globe, no matter their size. Through its Getty Images, iStock and Unsplash brands, websites and APIs, Getty Images serves customers in almost every country in the world and is the first-place people turn to discover, purchase and share powerful visual content from the world’s best photographers and videographers. Getty Images works with almost 600,000 content creators and more than 355 content partners to deliver this powerful and comprehensive content. Each year Getty Images covers more than 160,000 news, sport and entertainment events providing depth and breadth of coverage that is unmatched. Getty Images maintains one of the largest and best privately-owned photographic archives in the world with millions of images dating back to the beginning of photography.
Through its best-in-class creative library and Custom Content solutions, Getty Images helps customers elevate their creativity and entire end-to-end creative process to find the right visual for any need. With the adoption and distribution of generative AI technologies and tools trained on permissioned content that include indemnification and perpetual, worldwide usage rights, Getty Images and iStock customers can use text to image generation to ideate and create commercially safe compelling visuals, further expanding Getty Images capabilities to deliver exactly what customers are looking for.
For company news and announcements, visit our Newsroom.
Investor Contact Getty Images:
Steven Kanner
Investorrelations@gettyimages.com
Media Contact Getty Images:
Julia Holmes
Julia.Holmes@gettyimages.com
3
Exhibit 99.2
Getty Images Announces Settlement of Exchange Offer and ConsentSolicitation and Closing of $628,400,000 10.500% Senior Secured Notes Offering
NEW YORK, Oct. 21, 2025 (GLOBE NEWSWIRE) -- Getty Images Holdings, Inc. (NYSE: GETY) (“Getty Images”) announced today the settlement of the previously announced offer by Getty Images, Inc. (the “Issuer”), an indirect wholly owned subsidiary of Getty Images, to exchange (the “Exchange Offer”) any and all of the Issuer’s issued and outstanding unsecured 9.750% Senior Notes due 2027 (the “Old Notes”) for newly issued unsecured 14.000% Senior Notes due 2028 (the “New Notes”) of the Issuer, and the related solicitation of consents (the “Consent Solicitation”) to certain proposed amendments to the terms of the indenture governing the Old Notes (the “Proposed Amendments”).
On October 21, 2025 (the “Settlement Date”), $294,686,000 aggregate principal amount of Old Notes validly tendered (and not validly withdrawn) and were accepted for exchange by the Issuer, and the exchange of such principal amount of Old Notes for $294,686,000 aggregate principal amount of New Notes, issued to the exchanging holders (the “Holders”) , was settled. Following the consummation of the Exchange Offer, $5,314,000 aggregate principal amount of Old Notes remain outstanding. The New Notes were issued pursuant to an indenture, as supplemented by the first supplemental indenture thereto, each dated the date hereof and each by and among the Issuer, the guarantors party thereto and Wilmington Trust, National Association as trustee.
In connection with the Issuer’s acceptance of tendered Old Notes on the Settlement Date, the Issuer confirmed it had received the consents of at least a majority of the outstanding principal amount of Old Notes (the “Requisite Consents”), and in connection therewith, on the Settlement Date, the Issuer entered into a supplemental indenture effecting the Proposed Amendments to the indenture governing the Old Notes (the “Third Supplemental Indenture”), dated the date hereof, by and among the Issuer, the guarantors party thereto and Wilmington Trust, National Association, as trustee. The Third Supplemental Indenture became effective upon execution and is operative as of the date hereof, following (i) payment by the Issuer of the Total Consideration to the Holders and (ii) notification to Wilmington Trust, National Association that such payment was made.
Getty Images also announced the closing of the previously announced private offering of $628,400,000 aggregate principal amount of 10.500% Senior Secured Notes due 2030 (the “Senior Secured Notes”) offered to certain initial purchasers by the Issuer. The Senior Secured Notes are senior secured obligations of the Issuer and are jointly and severally guaranteed on a senior secured first lien basis by the same guarantors that provide guarantees for the Issuer’s outstanding 11.250% Senior Secured Notes due 2030 and its secured credit facility. The Issuer (i) issued such aggregate principal amount of Senior Secured Notes pursuant to an indenture, dated as of October 21, 2025 (the “Senior Secured Notes Indenture”), by and among the Issuer, the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and notes collateral agent, and (ii) entered into an escrow agreement, dated as of October 21, 2025 (the “Escrow Agreement”), by and among the Issuer and U.S. Bank National Association, as escrow agent (in such capacity, the “Escrow Agent”), and U.S. Bank Trust Company, National Association, as trustee.
Pursuant to the terms of the Escrow Agreement, the Issuer has caused to be deposited an amount equal to the gross proceeds of the offering of the Senior Secured Notes in an escrow account, secured by a first-priority security interest in the escrow account and all funds deposited therein in favor of the Escrow Agent. Upon release from escrow, Getty Images and the Issuer intend to use such escrowed proceeds furnished by the offering of Senior Secured Notes to pay approximately $350,000,000 of fees, expenses and cash consideration to holders of Shutterstock common stock payable in connection with the Merger (as defined below) and to use the remaining proceeds to refinance certain indebtedness of Shutterstock and pay fees and expenses in connection with this offering.
The offering of the Senior Secured Notes was made in connection with Getty Images’ previously announced proposed merger of equals (the “Merger”) with Shutterstock, Inc. (“Shutterstock”), creating a premier visual company, pursuant to that certain Agreement and Plan of Merger, dated as of January 6, 2025 (the “Merger Agreement”) by and among, inter alios, Getty Images and Shutterstock. In the event that (i) the Merger Agreement is terminated or not consummated on or prior to October 6, 2026, or (ii) the Issuer informs the Escrow Agent that in the reasonable judgment of the Issuer, the Merger will not be consummated on or prior to October 6, 2026, the Senior Secured Notes will be redeemed in accordance with a special mandatory redemption at a redemption price equal to 100% of the issue price of the Senior Secured Notes plus accrued and unpaid interest, if any, from the date of issuance or the most recent date to which interest has been paid or provided for, to, but not including, the date of such redemption.
No Offer or Solicitation
This press release is for informational purposes only and is neither an offer to sell, nor a solicitation of an offer to purchase, the New Notes or Senior Secured Notes or any other securities, nor an offer to purchase, nor a solicitation of an offer to sell, the Old Notes or any other securities. The Exchange Offer and Consent Solicitation were only made pursuant to the Exchange Offering Memorandum (as defined below) and the offering of Senior Secured Notes was only made pursuant to the Secured Notes Offering Memorandum (as defined below). Neither the Exchange Offer nor the offer and sale of Senior Secured Notes were made in any jurisdiction in which the making or acceptance thereof would not be in compliance with the securities, blue sky or other laws of such jurisdiction.
The complete terms and conditions of the Exchange Offer and related Consent Solicitation were set forth in a confidential offering memorandum and consent solicitation statement, dated as of September 18, 2025, (the “Exchange Offering Memorandum”). The complete terms and conditions of the offering of Senior Secured Notes were set forth in a confidential offering memorandum, dated as of October 6, 2025 (the “Secured Notes Offering Memorandum”).
No Registration
The New Notes and Senior Secured Notes have not and will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), or any other applicable securities laws and, unless so registered, the New Notes and Senior Secured Notes may not be offered, sold, pledged or otherwise transferred, except pursuant to an exemption from the registration requirements of the Securities Act. Accordingly, the New Notes and Senior Secured Notes have been offered and issued only (i) to persons reasonably believed to be “qualified institutional buyers” (as defined in Rule 144A under the Securities Act) and (ii) to non-“U.S. persons” who are outside the United States (as defined in Regulation S under the Securities Act).
2
Forward Looking Statements
Certain statements included in this press release that are not historical facts are forward-looking statements for purposes of the safe harbor provisions under the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of the words such as “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” “should,” “would,” “plan,” “project,” “forecast,” “predict,” “potential,” “seem,” “seek,” “future,” “outlook,” “target” or similar expressions that predict or indicate future events or trends or that are not statements of historical matters. These forward-looking statements include, but are not limited to, statements regarding estimates and forecasts of other financial and performance metrics and projections of market opportunity, the application of the proceeds from the offering of the Senior Secured Notes, the compliance with the terms and conditions of the Escrow Agreement, the consummation of the Merger and compliance with the terms and conditions of the Merger Agreement. These statements are based on various assumptions, whether or not identified in this press release, and on the current expectations of the management of Getty Images and the Issuer and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on by any investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of Getty Images and the Issuer.
These forward-looking statements are subject to a number of risks and uncertainties, including the risks and uncertainties associated with the Exchange Offer and Consent Solicitation and offering and sale of the Senior Secured Notes and other risks and uncertainties identified in “Item 1A. Risk Factors” of Getty Images’ most recently filed Annual Report on Form 10-K (the “2024 Form 10-K”). If any of these risks materialize or our assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements.
These and other factors that could cause actual results to differ from those implied by the forward-looking statements in this press release are more fully described under the heading “Item 1A. Risk Factors” in the 2024 Form 10-K and in our other filings with the SEC. The risks described under the heading “Item 1A Risk Factors” in the 2024 Form 10-K and other filings with the SEC are not exhaustive. New risk factors emerge from time to time and it is not possible to predict all such risk factors, nor can Getty Images or the Issuer assess the impact of all such risk factors on their business or the extent to which any factor or combination of factors may cause actual results to differ materially from those contained in any forward-looking statements. All forward looking statements attributable to Getty Images or the Issuer or persons acting on their behalf are expressly qualified in their entirety by the foregoing cautionary statements. Getty Images and the Issuer undertake no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
In addition, the statements of belief and similar statements reflect the beliefs and opinions of Getty Images and the Issuer on the relevant subject. These statements are based upon information available to Getty Images and the Issuer, as applicable, as of the date of this press release, and while they believe such information forms a reasonable basis for such statements, such information may be limited or incomplete, and statements should not be read to indicate that Getty Images and the Issuer have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain and you are cautioned not to unduly rely upon these statements.
3
About Getty Images
Getty Images (NYSE: GETY) is a preeminent global visual content creator and marketplace that offers a full range of content solutions to meet the needs of any customer around the globe, no matter their size. Through its Getty Images, iStock and Unsplash brands, websites and APIs, Getty Images serves customers in almost every country in the world and is the first place people turn to discover, purchase and share powerful visual content from the world’s best photographers and videographers. Getty Images works with almost 600,000 content creators and more than 355 content partners to deliver this powerful and comprehensive content. Each year Getty Images covers more than 160,000 news, sport and entertainment events providing depth and breadth of coverage that is unmatched. Getty Images maintains one of the largest and best privately-owned photographic archives in the world with millions of images dating back to the beginning of photography.
Through its best-in-class creative library and Custom Content solutions, Getty Images helps customers elevate their creativity and entire end-to-end creative process to find the right visual for any need. With the adoption and distribution of generative AI technologies and tools trained on permissioned content that include indemnification and perpetual, worldwide usage rights, Getty Images and iStock customers can use text to image generation to ideate and create commercially safe compelling visuals, further expanding Getty Images capabilities to deliver exactly what customers are looking for.
For company news and announcements, visit our Newsroom.
Investor Contact Getty Images:
Steven Kanner
Investorrelations@gettyimages.com
Media Contact Getty Images:
Julia Holmes
Julia.Holmes@gettyimages.com
4