Upgrade to SI Premium - Free Trial

Form T-3 Concordia International

July 11, 2018 9:11 AM

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM T-3

FOR APPLICATION FOR QUALIFICATION OF INDENTURE UNDER
THE TRUST INDENTURE ACT OF 1939

Concordia International Corp.
(Name of Applicant)

5770 Hurontario Street, Suite 310,
Mississauga, Ontario, L5R 3G5
(Address and Phone Number of Principal Executive Offices)

SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED
 
TITLE OF CLASS
 
AMOUNT
8.000% First Lien Senior Secured Notes due 2024
 
Up to US$300,000,000 aggregate principal amount
 
Approximate Date of Proposed Public Offering:
Upon the Completion Date of the Recapitalization Transaction referred to herein.
 
CT Corporation System
111 Eighth Avenue
New York, New York 10011
(Name and Address of Agent for Service)

With a copy to:
Gregory Fernicola, Esq.
Michael Saliba, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, New York 10036
(212) 735-3000
 
Applicant hereby amends this Application for Qualification on such date or dates as may be necessary to delay its effectiveness until: (i) the 20th day after the filing of an amendment which specifically states that it shall supersede this Application for Qualification, or (ii) such date as the Securities and Exchange Commission (the “Commission”), acting pursuant to Section 307(c) of the Trust Indenture Act of 1939, may determine upon the written request of the Applicant.
 


GENERAL

1.
General Information.

Concordia International Corp. (the “Issuer”) is a corporation continued under the laws of Canada.

2.
Securities Act Exemption Applicable.

Pursuant to a recapitalization transaction (the “Recapitalization Transaction”) to be implemented pursuant to a plan of arrangement under Section 192 of the Canada Business Corporations Act (the “Arrangement”), the Issuer intends to exchange, among other things, approximately US$2.2 billion aggregate principal amount of the Issuer’s outstanding secured indebtedness (the “Secured Debt”) for cash and new secured indebtedness, comprised of new senior secured term loans and new 8.000% First Lien Senior Secured Notes due 2024 (the “Notes”), in each case, as more fully described in the Issuer’s Management Information Circular, dated May 15, 2018 (the “Information Circular”), incorporated by reference herein as Exhibit T3E. Capitalized terms used herein that are not otherwise defined herein shall have the meanings ascribed to such terms in the Information Circular.

Registration of the distribution of the Notes under the Securities Act of 1933, as amended (the “Securities Act”), is not required by reason of the exemption from registration provided by Section 3(a)(10) of the Securities Act. The Notes will be issued under the indenture (the “Indenture”) to be qualified by this Application for Qualification (this “Application”). For more detailed information on the Indenture, see Item 8 of this Application.

Section 3(a)(10) of the Securities Act provides an exemption from the registration provisions of the Securities Act for, in relevant part:

“... any security which is issued in exchange for one or more bona fide outstanding securities, claims or property interests... where the terms and conditions of such issuance are approved, after a hearing upon the fairness of such terms and conditions at which all persons to whom it is proposed to issue securities in such exchange shall have the right to appear, by any court...”

The three main elements of the Section 3(a)(10) exemption are (a) an exchange of outstanding securities, claims or property interests, (b) a fairness hearing and (c) court approval of the issuance of securities in exchange for securities, claims or property interests. As described below and in the Information Circular incorporated by reference herein as Exhibit T3E, each of these elements will be satisfied in connection with the issuance of the Notes.

(a)
Exchange.

Pursuant to the Arrangement, the Notes, among other things, will be issued in exchange for the existing Secured Debt as more fully described in the Information Circular, incorporated by reference herein as Exhibit T3E.
 
2

(b)
Fairness Hearing.

On May 2, 2018, the Ontario Superior Court of Justice (the “Court”) entered an Interim Order, which, among other things, authorized:  (i) the Issuer to send the Information Circular to the holders (the “Secured Debtholders”) of its existing Secured Debt, the holders (the “Unsecured Debtholders” and, together with the Secured Debtholders, the “Debtholders”) of its outstanding affected unsecured indebtedness (the “Unsecured Debt” and, together, with the Secured Debt, the “Existing Debt”) and holders (the “Shareholders”) of its common shares; and (ii) the holding of the following meetings (a) a meeting (the “Secured Debtholders’ Meeting”) of the Secured Debtholders, (b) a meeting (the “Unsecured Debtholders’ Meeting”) of the Unsecured Debtholders and (c) a meeting (the “Shareholders’ Meeting” and, together with the Secured Debtholders’ Meeting and the Unsecured Debtholders’ Meeting, the “Meetings”) of the Shareholders, in each case, to consider and vote upon the Arrangement to implement the Recapitalization Transaction.

On June 19, 2018, the Debtholders and the Shareholders approved the Arrangement at the Meetings. Following such approval, the Issuer applied to the Court for a Final Order approving the Arrangement. All Debtholders and Shareholders were notified of the hearing by the Information Circular and had the right to appear at such hearing and to present evidence or testimony with respect to the fairness of the Arrangement.

(c)
Court Approval.

On June 26, 2018, the Court entered a Final Order, which, among other things, approved the Arrangement as fair and reasonable, including, but not limited to, the distribution of the Notes. The Court was advised that its ruling will be the basis for claiming an exemption from registration under the Securities Act by reason of the exemption afforded by Section 3(a)(10) thereof.
 
3

AFFILIATIONS

3.
Affiliates.

(a)
For purposes of this Application only, as of the date hereof, the officers and directors of the Issuer named in response to Item 4 hereof may be deemed affiliates of the Issuer by virtue of the positions held by such persons with the Issuer. As disclosed in the Final Order (incorporated by reference herein as Exhibit T3D), a new slate of directors of the Issuer will be appointed in connection with the Recapitalization Transaction.

(b)
As of June 28, 2018, Cinven Capital Management (V) General Partner Limited (“CCMGPL”) and limited partnerships and other entities controlled by or acting jointly with CCMGPL (collectively, “Cinven”) holds voting securities of the Issuer.

Immediately following the completion of the Recapitalization Transaction, (i) one or more funds for which GSO Capital Partners LP or its affiliates acts as investment manager, advisor or sub-advisor (collectively, “GSO”), (ii) one or more funds for which Solus Alternative Asset Management LP or its affiliates acts as investment manager, advisor or sub-advisor (collectively, “Solus”) and (iii) one or more funds for which Bybrook Capital LLP or its affiliates acts as investment manager, advisor or sub-advisor (collectively, “Bybrook”), in each case, will hold voting securities of the Issuer.

As result of their ownership of such voting securities and certain governance agreements entered into or to be entered into, as applicable, by such parties and the Issuer, (i) Cinven is considered to be an affiliate of the Issuer as of June 28, 2018 and (ii) GSO, Solus and Bybrook are expected to be affiliates immediately following the completion of the Recapitalization Transaction.

See Item 5 “Principal Owners of Voting Securities” for the class and percentages of voting securities of the Issuer held by Cinven, GSO, Solus and Bybrook.

In addition, the following is a list of the other affiliates of the Issuer both as of June 28, 2018 and immediately following the completion of the Recapitalization Transaction.
 
4

 
Name
 
Place of incorporation
 
Percentage of voting
securities owned
 
Abcur AB
(Company No: 556701-3957)
 
Sweden
 
100%
 
ABM Pharma Limited
(Registered No: 1647329)
 
New Zealand
 
100%
 
AMCo (Germany) GmbH
(Registered No: HRB133043)
 
Germany
 
100%
 
Amdipharm AG
(Registered No: CH270.3.013.095-5)
 
Switzerland
 
100%
 
Amdipharm BV
(Registered No: 24341987)
 
Netherlands
 
100%
 
Amdipharm Coöperatief U.A.
(Registered No: 51903512)
 
Netherlands
 
99%1
 
Amdipharm Holdings, S.á R.L.
(Registered No: B105086)
 
Luxembourg
 
100%
 
Amdipharm Limited
(Registered No: 364596)
 
Ireland
 
100%
 
Amdipharm Marketing Limited
(Registered No: 6062056)
 
United Kingdom
 
100%
 
Amdipharm Mercury (Australia) Pty Limited
(Company No: 118106684 (ACN))
 
Australia
 
100%
 
Amdipharm Mercury Holdco UK Ltd
(Company No: 08189816)
 
United Kingdom
 
100%
 
Amdipharm Mercury (Hong Kong) Limited
(Company No: 662544)
 
Hong Kong
 
99%2
 
Amdipharm Mercury International Limited
(Registered No: 88638)
 
New Jersey
 
100%
 
Amdipharm Mercury Midco UK Ltd
(Company No: 08177295)
 
United Kingdom
 
100%
 
Amdipharm Mercury UK Ltd
(Company No: 08169596)
 
United Kingdom
 
100%
 
Amdipharm Sales and Marketing Limited (Registered No: 88737)
 
New Jersey
 
100%
 
Amdipharm UK Limited
(Registered No: 04606340)
 
United Kingdom
 
100%
 
Boucher & Muir (New Zealand) Limited (Registered No: 1771492)
 
New Zealand
 
100%
 
Boucher & Muir (PNG) Pty Limited
(Registered No: 1-30858)
 
Papua New Guinea
 
100%
 
Boucher & Muir Pty Limited
(Registered No: 000140474)
 
Australia
 
100%3
 
Canberra Analytical Laboratories Pty Limited
(Registered No: 060976909)
 
Australia
 
100%


1 1% held by Amdipharm Mercury International Limited (Jersey).
 
2 1% held by Mercury Pharmaceuticals Ltd (England and Wales).
 
3 88% held by Mercury Pharma Group Limited and 12% held by Concordia International (Australia) Pty Ltd.
 
5

 
Concordia Healthcare (Canada) Limited
(Business No: 10441996)
 
Canada
 
100%
 
Concordia Holdings (Jersey) Limited
(Registered No: 119695)
 
New Jersey
 
100%
 
Concordia International (Australia) Pty Limited (fka Boucher & Muir (Holdings) Pty Limited)
(Registered No: 000688237)
 
Australia
 
100%
 
Concordia International (France), S.á R.L. (fka AMCo France S.á R.L.)
(Registered No: 810 882 514 R.C.S. Nanterre)
 
France
 
100%
 
Concordia International (India) Services Private Limited (fka Amdipharm Mercury Services Private Limited)
(Company No: U74990MH1999FTC120396 fka 11-120396)
 
India
 
99.98%4
 
Concordia International (Italy), S.R.L. (fka AMCo (Italy), S.R.L.)
(Registered No: 2055279)
 
Italy
 
100%
 
Concordia International (Netherlands) B.V. (fka Amdipharm International B.V.) (Registered No: 51903792)
 
Netherlands
 
100%
 
Concordia International Rx (Ireland) Limited (fka Mercury Pharma Overseas Limited )*
(Company No: 43819)
 
Ireland
 
100%
 
Concordia International Rx (UK) Limited (fka Amdipharm Mercury Company Limited)
(Company No: 04678629)
 
United Kingdom
 
100%
 
Concordia Investment Holdings (UK) Limited
(Registered No: 09821116)
 
United Kingdom
 
100%
 
Concordia Investments (Jersey) Limited
(Registered No: 119697)
 
New Jersey
 
100%
 
Concordia Labs Inc.
(Registered No: 5370963)
 
United States
 
100%
 
Concordia Laboratories Inc., S.á R.L.
(Registered No: B200376)
 
Luxembourg
 
100%
 
Concordia Pharma (RSA) Pty Limited (fka Amdipharm Mercury RSA Pty Limited)
(Registered No: 2014/155659/07)
 
South Africa
 
100%


4 0.02% held by Goldshield Healthcare Pvt Ltd (India).
 
6

 
Concordia Pharmaceuticals Inc., S.á R.L.
(Registered No: B200344)
 
Luxembourg
 
100%
 
Concordia Pharmaceuticals (US) Inc. (fka Concordia Healthcare USA Inc.)
(Registered No: 5319733)
 
United States
 
100%
 
Emerge Medical Pty Limited
(Registered No: 090908517)
 
Australia
 
100%
 
Focus Pharmaceuticals Limited
(Company No: 04522142)
 
United Kingdom
 
100%
 
Focus Pharma Holdings Limited (Company No: 06317129)
 
United Kingdom
 
100%
 
Goldshield Healthcare Private Limited
(Company No: 11-147317)
 
India
 
99.99%5
 
Mercury Pharma (Generics) Limited
(Company No: 02760679)
 
United Kingdom
 
100%
 
Mercury Pharma Group Ltd
(Company No: 02330913)
 
United Kingdom
 
100%
 
Mercury Pharma International Limited *
(Company No: 20440)
 
Ireland
 
100%
 
Mercury Pharmaceuticals (Ireland) Limited*
(Company No: 325288)
 
Ireland
 
100%
 
Mercury Pharmaceuticals Ltd
(Company No: 02619880)
 
United Kingdom
 
100%
 
Mercurypharm Limited (Company No: 241807)
 
Ireland
 
100%
 
Midas Bidco Ltd
(Company No: 06883921)
 
United Kingdom
 
100%
 
Pinnacle Biologics B.V.
(Registered No: 34291517)
 
Netherlands
 
100%
 
Pinnacle Biologics, Inc.
(Registered No: 4470877)
 
United States
 
100%
 
Pinnacle Biopharma India Private Limited
(Registered No: 24100MH2013PTC242310)
 
India
 
99%6
 
Primegen Limited
(Registered No: 09129663)
 
United Kingdom
 
100%
 
Southpac Healthcare Ltd
(Registered No: 14775)
 
Papua New Guinea
 
50%7
 
Concordia Financing (Jersey) Limited
(Registered No: 119696)
 
Jersey
 
100%
 
Compagnie Biologiques Pinnacle
(Business No: 1167506378)
 
Canada
 
100%


5 0.01% held by Mercury Pharmaceuticals Ltd (England and Wales).
 
6 1% held by unrelated party.
 
7 50% held by an unrelated party (Pharmaceutical Supplies and Services (PNG) Ltd.).
 
7

MANAGEMENT AND CONTROL

4.
Directors and Executive Officers.

The names of the directors and executive officers of the Issuer, as of the date hereof, are set forth below. The mailing address for each director and executive officer is: c/o 5770 Hurontario Street, Suite 310, Mississauga, Ontario, Canada L5R 3G5, and each person’s telephone number is (905) 842-5150.
 
 
NAME
 
TITLE
 
Graeme Duncan
 
Chief Executive Officer
 
Adeel Ahmad
 
Chief Financial Officer
 
Guy Clark
 
Chief Corporate Development Officer
 
Francesco Tallarico
 
Chief Legal Officer and Secretary
 
Karl Belk
 
Chief Operations Officer
 
Simon Tucker
 
President, International Segment
 
Paul Burden
 
President, United Kingdom and Ireland Division
 
Vikram Kamath
 
Vice President, Finance and Group Controller
 
Jeridean Young
 
Vice President, Tax and Treasury
 
Randy Benson
 
Director
 
Douglas Deeth
 
Director
 
Rochelle Fuhrmann
 
Director
 
Itzhak Krinsky
 
Director
 
Francis (Frank) Perier, Jr.
 
Director
 
Patrick Vink
 
Director
 
As disclosed in the Information Circular (incorporated by reference herein as Exhibit T3E), a new slate of directors of the Issuer will be appointed in connection with the Recapitalization Transaction.

5.
Principal Owners of Voting Securities.

The Issuer furnishes the following information as to each person owning 10% or more of the voting securities of the Issuer as of June 28, 2018:
 
NAME AND COMPLETE
MAILING ADDRESS
TITLE OF CLASS
 OWNED
 
AMOUNT OWNED
   
PERCENTAGE OF
VOTING
SECURITIES OWNED
 
Cinven(1)
 
Common Shares
   
7,233,338(2)
 
   
14.1 %(2)
 
(1)
The mailing address of Cinven  is East Wing, Trafalgar Court Les Banques, St Peter Port Guernsey, GY1 3PP.

(2)
Based on a report generated using the System for Electronic Disclosure by Insiders (SEDI).

The Issuer furnishes the following information as to each person expected to own 10% or more of the voting securities of the Issuer as of immediately following the completion of the Recapitalization Transaction:
 
NAME AND COMPLETE
MAILING ADDRESS
 
TITLE OF CLASS OWNED
 
PERCENTAGE OF VOTING
SECURITIES TO BE OWNED
 
GSO(1)
 
Class A Special Shares and Limited Voting Shares
   
35.7 %
Solus(1)
 
Class B Special Shares and Limited Voting Shares
   
17.2 %
Bybrook(1)
 
Limited Voting Shares
   
14.0 %
 
(1)
The complete mailing address of (i) GSO is c/o GSO Capital Partners LP, 345 Park Avenue, New York, NY 10154, (ii) Solus is 410 Park Aveune, 11th Floor, New York, NY 10022, Attention: [email protected] and (iii) Bybrook is c/o Bybrook Capital LLP, Pollen House, 10-12 Cork Street, London W1S 3NP.
 
8

UNDERWRITERS

6.
Underwriters.

(a)
The following chart sets forth the name and mailing address of each person who, within three years prior to the date of filing this Application, acted as an underwriter of securities of the Issuer which are outstanding on the date of filing this Application:
 
 
Underwriter’s Name and
Mailing Address
Security Underwritten
 
Goldman, Sachs & Co. LLC (f/k/a Goldman, Sachs & Co.)
200 West Street, 29th Floor
New York, New York 10282
9.000% First Lien Senior Secured Notes due 2022
9.500% Senior Notes due 2022
8,000,000 Common Shares
 
Credit Suisse Securities (USA) LLC
11 Madison Avenue, 24th Floor
New York, New York 10010
9.500% Senior Notes due 2022
8,000,000 Common Shares
 
Jefferies LLC
520 Madison Avenue, 10th Floor
New York, New York 10022
9.500% Senior Notes due 2022
8,000,000 Common Shares
 
RBC Capital Markets, LLC
200 Vesey Street
3 World Financial Center, 8th Floor
New York, New York 10281
9.500% Senior Notes due 2022
8,000,000 Common Shares
 
(b)
There are no underwriters of the securities proposed to be offered in the Recapitalization Transaction.
 
9

CAPITAL SECURITIES

7.
Capitalization.

(a)
As of June 28, 2018, the Issuer had the following capitalization:
 
Title of Class
 
Amount
Authorized
   
Amount Outstanding
 
Common shares
 
Unlimited
     
51,283,800
 
9.000% First Lien Senior Secured Notes due 2022
 
$
350,000,000
   
$
350,000,000
 
9.500% Senior Notes due 2022
 
$
790,000,000
   
$
790,000,000
 
7.000% Senior Notes due 2023
 
$
735,000,000
   
$
735,000,000
 
 
(b)
Holders of the Issuer’s common shares are entitled to one vote for each common  share registered in such Holder’s name.
 
10

INDENTURE SECURITIES

8.
Analysis of Indenture Provisions.

The Notes will be issued under the Indenture, among the Issuer, the guarantors specified below, and GLAS Trust Company LLC (the “Trustee”). The following is a general description of certain provisions of the Indenture, and the description is qualified in its entirety by reference to the Form of Indenture relating to the Notes filed as Exhibit T3C hereto. Unless otherwise specified herein, all capitalized and otherwise undefined terms in this section shall have the meanings ascribed to them in the Indenture.

(a)
Event of Default

Each of the following constitutes an event of default under the Indenture:

(1)
default in the payment of principal of (or premium, if any, on) any Note when due and payable (whether at Stated  Maturity or upon repurchase, acceleration, optional redemption or otherwise);

(2)
default in the payment of any interest upon any Note when it becomes due and payable, and continuance of such default for a period of 30 days;

(3)
except as permitted under the Indenture, any Note Guarantee of any Significant Subsidiary required to be a Guarantor pursuant to the Indenture (or any group of Restricted Subsidiaries required to be Guarantors pursuant to the Indenture that, taken together, would constitute a Significant Subsidiary) shall for any reason cease to be, or it shall be asserted by any such Guarantor or the Issuer not to be, in full force and effect and enforceable in accordance with its terms;

(4)
default in the performance, or breach, of any covenant or agreement of the Issuer or any Guarantor in the Indenture or any of the Collateral Documents (other than a covenant or agreement a default in whose performance or whose breach is specifically addressed in clause (1), (2) or (3) above), and continuance of such default or breach for a period of 60 days after written notice thereof has been given to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding Notes;

(5)
a default or defaults under any bonds, debentures, notes or other evidences of Debt (other than the Notes) by the Issuer or any Restricted Subsidiary having, individually or in the aggregate, a principal or similar amount outstanding of at least $50 million (or its foreign currency equivalent), whether such Debt now exists or shall hereafter be created, which default or defaults (A) shall have resulted in the acceleration of the maturity of such Debt prior to its express maturity or (B) shall constitute a failure to pay principal of at least $50 million (or its foreign currency equivalent) on such Debt when due and payable after the expiration of any applicable grace period with respect thereto;
 
11

(6)
the entry against the Issuer or any Restricted Subsidiary that is a Significant Subsidiary of a final judgment or final judgments for the payment of money in an aggregate amount in excess of $50 million (or its foreign currency equivalent), by a court or courts of competent jurisdiction, which judgment or judgments are not covered by insurance and remain undischarged, unwaived, unstayed, unbonded or unsatisfied for a period of 60 consecutive days;

(7)
the Issuer or any Significant Subsidiary or any group of Restricted Subsidiaries of the Issuer that, taken together, would constitute a Significant Subsidiary, other than in connection with solvent reconstructions or reorganizations otherwise permitted under the Indenture, pursuant to or within the meaning of any Bankruptcy Law:

(A)
commences proceedings to be adjudicated bankrupt or insolvent;

(B)
consents to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition, application or answer or consent seeking an arrangement of debt, reorganization (including by way of voluntary arrangement, scheme of arrangement or otherwise), liquidation, dissolution, examinership, winding-up or relief under applicable Bankruptcy Law (including the making of a proposal or the filing of a notice of intention to make a proposal);

(C)
applies for or consents to the appointment of a custodian, examiner, receiver, interim receiver, receiver and manager, liquidator, administrative receiver, administrator, compulsory manager, assignee, trustee, sequestrator or other similar official of it or for all or substantially all of its property and assets;

(D)
makes a general assignment for the benefit of its creditors or takes any comparable action under any foreign laws relating to insolvency;

(E)
generally is not paying its debts as they become due or admits in writing its inability to pay its debts when due;

(F)
commences any proceedings in relation to any reconstruction (Sw. företagsrekonstruktion) under the Swedish Act on Reconstruction (Sw. Lag om företagsrekonstruktion (1996:764)), bankruptcy (Sw. konkurs) under the Swedish Bankruptcy Act (Sw. Konkurslag (1987:672)) or winding-up or dissolution (Sw. likvidation) under the Swedish Companies Act; or

(G)
takes any corporate action in furtherance of any such actions in this clause (7);

(8)
an involuntary case or proceeding shall be commenced or an involuntary petition, application or other originating process shall be filed with a court of competent jurisdiction under any Bankruptcy Law that seeks:
 
12

(A)
to adjudicate the Issuer, any Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, bankrupt or insolvent;

(B)
the appointment of a custodian, examiner, receiver, interim receiver, receiver and manager, liquidator, assignee, administrative receiver, administrator, compulsory manager, trustee, sequestrator or other similar official for the Issuer, any Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property and assets of the Issuer, any Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary;

(C)
the liquidation, administration, dissolution, examinership, readjustment of debt, reorganization or winding-up of the Issuer, any Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary; or

(D)
any reconstruction (Sw. företagsrekonstruktion) under the Swedish Act on Reconstruction (Sw. Lag om företagsrekonstruktion (1996:764)), bankruptcy (Sw. konkurs) under the Swedish Bankruptcy Act (Sw. Konkurslag (1987:672)) or winding-up or dissolution (Sw. likvidation) under the Swedish Companies Act in respect of any Swedish Guarantor;

(E)
and such case, proceeding, petition, application or other process shall continue undismissed and unstayed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered; or

(9)
any Collateral Document shall for any reason be asserted in writing by the Issuer or any Guarantor not to be a legal, valid and binding obligation of such party thereto or any security interest purported to be created by any Collateral Document relating to a material portion of the Collateral with a Fair Market Value in excess of $50 million shall cease to be, or shall be asserted in writing by the Issuer or a Guarantor not to be, a valid and perfected security interest (having the priority required by the Indenture or the relevant Collateral Document and subject to such limitations and restrictions as are set forth in the Indenture or the Collateral Documents).

If an Event of Default arising from certain events of bankruptcy or insolvency occurs with respect to the Issuer, and is continuing, the principal of, premium, if any, and accrued and paid interest, if any, on all the Notes shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. If any other Event of Default occurs and is continuing, the Trustee by written notice to the Issuer, specifying the Event of Default, or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes by written notice to the Issuer and the Trustee, may, and the Trustee at the written request of such Holders shall, declare the principal of, premium, if any, and accrued and unpaid interest, if any, on all the Notes to be due and payable immediately. Upon such a declaration, such principal, premium, if any, and accrued and unpaid interest, if any, shall be due and payable immediately.
 
13

In the event of a declaration of acceleration of the Notes solely because an Event of Default described in clause (5) above has occurred and is continuing, the declaration of acceleration of the Notes shall be automatically rescinded and annulled if: (1) the default triggering such Event of Default pursuant to clause (5) above shall be remedied or cured by the Issuer or any of its Restricted Subsidiaries or waived by the holders of the relevant Debt within 20 Business Days after the declaration of acceleration with respect thereto; and (2) (A) the rescission and annulment of the acceleration of the Notes would not conflict with any judgment or decree of a court of competent jurisdiction obtained by the Trustee for the payment of principal, premium, if any, or interest, if any, due on the Notes and (B) all existing Events of Default, except nonpayment of principal, premium, if any, or interest, if any, on the Notes that became due solely because of the acceleration of the Notes, have been cured or waived.

The Holders of a majority in aggregate principal amount of the outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or the Collateral Agent or for exercising any trust or power conferred on the Trustee or the Collateral Agent. However, the Trustee or the Collateral Agent may refuse to follow any direction that conflicts with applicable law or the Indenture, the Notes or any Note Guarantee, or that the Trustee or the Collateral Agent determines in good faith is unduly prejudicial to the rights of any other Holder (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any such direction is unduly prejudicial to any such other Holder) or that would involve the Trustee or the Collateral Agent in personal liability or expense for which the Trustee or the Collateral Agent, as applicable, has not been offered an indemnity satisfactory to it.

If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of, premium, if any, and interest, if any, on the Notes or to enforce the performance of any provision of the Notes or the Indenture.

The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding.  A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default.  All remedies are cumulative to the extent permitted by law.

The Required Consenting Holders may on behalf of the Holders of all Notes waive any past Default or Event of Default and its consequences except a Default or Event of Default in any payment in respect of the principal of (or premium, if any) or interest on any Notes or  in respect of a covenant or provision of the Indenture which cannot be modified or amended without the consent of the Holder of each outstanding Note affected.

(b)
Authentication and Delivery of the Notes and Application of Proceeds.

At least one Authorized Officer shall execute the Notes on behalf of the Issuer by manual or facsimile signature.
 
14

If an Authorized Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid.

A Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose until authenticated substantially in the form provided in the Indenture by the manual signature of an authorized signatory of the Trustee. The signature shall be conclusive evidence that the Note has been duly authenticated and delivered under the Indenture.

The Trustee shall, upon receipt of an Authentication Order from the Issuer, authenticate and deliver the Notes in an initial aggregate principal amount up to $300 million and in an aggregate principal amount specified in an Authentication Order from the Issuer for any Additional Notes issued.

The Issuer will not receive any proceeds from the issuance of the Notes.

(c)
Release of Property Subject to Liens

The Liens securing the Notes will be automatically released, and the Trustee (subject to its receipt of an Officer’s Certificate and Opinion of Counsel as provided below) shall execute documents evidencing such release, or instruct the Collateral Agent to execute, as applicable, the same at the Issuer’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 (including Additional Amounts, if any) on, the Notes and all other Obligations under the 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;

(B)           satisfaction and discharge of the Indenture as set forth under Article 11 of the Indenture; or

(C)           a Legal Defeasance or Covenant Defeasance of the Indenture as set forth under Article 8 of the Indenture;

(ii)          in whole or in part, with the consent of Holders of the Notes in accordance with Article 9 of the Indenture;

(iii)         in part, as to any asset constituting Collateral:

(A)          that is sold or otherwise disposed of:

I.          by any Grantor to any Person that is not a Grantor organized in the same jurisdiction in a transaction permitted under Section 4.10 of the Indenture; provided that in the event of a transfer of assets from a Grantor to another Grantor organized in a different jurisdiction, the Trustee shall release, or instruct the Collateral Agent to release, such Lien if such transferee Grantor takes all actions reasonably necessary to grant a Lien in such transferred assets to the Collateral Agent (to the extent required by the Indenture and the Collateral Documents)),
 
15

II.         to the extent that such Collateral is released or no longer required to be pledged pursuant to the terms of the Credit Facility Documents then in effect (other than in connection with the repayment in full of the First Priority Credit Obligations), or

III.        in connection with the taking of an enforcement action by the Applicable Authorized Representative in respect of the First Priority Credit Obligations in accordance with the Intercreditor Agreement,

(B)          that is owned or at any time acquired by a Guarantor that has been released from its Note Guarantee, concurrently with the release of such Note Guarantee,

(C)          that becomes Excluded Property, or

(D)          that is otherwise released in accordance with the applicable provisions of the Collateral Documents and the Intercreditor Agreement, but subject to any restrictions thereon set forth in the Indenture or the Intercreditor Agreement;

With respect to any release of Collateral, upon receipt of an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent under the Indenture and the Collateral Documents and the Intercreditor Agreement, as applicable, to such release have been met and that it is proper for the Trustee or Collateral Agent to execute and deliver the documents requested by the Issuer in connection with such release, and any necessary or proper instruments of termination, satisfaction, discharge or release prepared by the Issuer, the Trustee shall, or shall cause the Collateral Agent to, execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases to evidence the release and discharge of any Collateral permitted to be released pursuant to the Indenture or the Collateral Documents or the Intercreditor Agreement.  Neither the Trustee nor the Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate or Opinion of Counsel, and notwithstanding any term hereof or in any Collateral Document or in the Intercreditor Agreement to the contrary, the Trustee and the 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 and Opinion of Counsel.

At any time when an Event of Default has occurred and is continuing and the maturity of the Notes has been accelerated (whether by declaration or otherwise) and the Trustee has delivered notice of acceleration to the Collateral Agent, no release of Collateral pursuant to the provisions of the Indenture or the Collateral Documents shall be effective as against the Holders, except as otherwise provided in the Intercreditor Agreement.
 
16

Notwithstanding anything to the contrary contained in the Indenture or in any other Note Document (other than release of security at the direction of the Holders pursuant to Section 9.02(b) of the Indenture), the release of any perfected Lien (or Lien purported to be perfected) over assets subject to any Swedish Security Agreement will at all times be subject to the prior written consent of the Collateral Agent (in its sole discretion), unless the assets to be released are disposed of at Fair Market Value and the proceeds are paid directly to the Collateral Agent towards discharge of the First Priority Notes Obligations (or are paid by the recipient into a blocked account held with the Collateral Agent).  The Trustee and each of the Holders authorize the Collateral Agent to release such Swedish Transaction Security in accordance with Section 12.03(d) of the Indenture.

(d)
Satisfaction and Discharge

The Issuer and the Guarantors may terminate their respective obligations under the Indenture and the Collateral Documents, and the Indenture and the Collateral Documents will cease to be of further effect as to all Notes, when:

(1)
either:

(A)          all Notes that have been authenticated and delivered have been delivered to the Trustee for cancellation; or

(B)          all Notes that have not been delivered to the Trustee for cancellation (i) have become due and payable or (ii) will become due and payable within one year or are to be called for redemption within one year under irrevocable arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer, and the Issuer has irrevocably deposited or caused to be deposited with the Trustee immediately available funds 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, if any, to the Stated Maturity or redemption date;

(2)
the Issuer has paid or caused to be paid all other sums then due and payable under the Indenture by the Issuer;

(3)
the deposit will not result in a breach or violation of, or constitute a default under, any other material instrument to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is bound; and

(4)
the Issuer has delivered irrevocable instructions to the Trustee under the Indenture to apply the deposited money toward the payment of the Notes at maturity or on the redemption date, as the case may be.

In addition, the Issuer must deliver an Officers’ Certificate and an Opinion of Counsel to the Trustee, each stating that all conditions precedent under the Indenture relating to the Discharge have been complied with.

(e)
Evidence of Compliance with Conditions and Covenants
 
17

The Issuer shall deliver to the Trustee and the Collateral Agent, on an annual basis at the same time as the Issuer furnishes its annual financial information under Section 4.03(a)(1) of the Indenture, an Officer’s Certificate stating that a review of the activities of the Issuer and its Restricted Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Authorized Officer with a view to determining whether the Issuer and each Guarantor have kept, observed, performed and fulfilled their obligations under the Indenture, and further stating, as to such Authorized Officer signing such certificate, that to the best of his or her knowledge, the Issuer and each Guarantor have kept, observed, performed and fulfilled each and every condition and covenant contained in the Indenture and is not in default in the performance or observance of any of the terms, provisions, covenants and conditions of the Indenture (or, if a Default shall have occurred, describing all such Defaults of which he or she may have knowledge and what action the Issuer and each Guarantor are taking or propose to take with respect thereto).

When any Default has occurred and is continuing under the Indenture, or if the Trustee or the holder of any other evidence of Debt of the Issuer or any Subsidiary gives any notice or takes any other action with respect to a claimed Default, the Issuer shall promptly (which shall be no more than 10 Business Days following the date on which the Issuer becomes aware of such Default, receives such notice or becomes aware of such action, as applicable) send to the Trustee an Officer’s Certificate specifying such event, its status and what action the Issuer is taking or proposes to take with respect thereto.

9.
Other Obligors.

The Notes are issued by the Issuer and guaranteed by certain of its subsidiaries as set forth below. The mailing address for each Guarantor is c/o 5770 Hurontario Street, Suite 310, Mississauga, Ontario, L5R 3GR.

Subsidiary Guarantors:

1.
Amdipharm B.V.;

2.
Concordia Laboratories Inc.;

3.
Concordia Pharmaceuticals Inc.;

4.
Amdipharm Holdings Sarl;

5.
Concordia Financing (Jersey) Limited;

6.
Concordia Investments (Jersey) Limited;

7.
Amdipharm Mercury International Limited;

8.
Concordia Holdings (Jersey) Limited;

9.
Concordia Investment Holdings (UK) Limited;

10.
Mercury Pharma Group Limited;

11.
Focus Pharma Holdings Limited;
 
18

12.
Mercury Pharma (Generics) Limited;

13.
Mercury Pharmaceuticals Limited;

14.
Focus Pharmaceuticals Limited;

15.
Amdipharm Mercury Holdco UK Limited;

16.
Amdipharm Mercury UK Ltd.;

17.
Concordia International RX (UK) Limited;

18.
Abcur AB;

19.
Mercury Pharmaceuticals (Ireland) Limited;

20.
Mercury Pharma International Limited;

21.
Amdipharm Limited;

22.
Amdipharm AG; and

23.
Primegen Limited.
 
19

CONTENTS OF APPLICATION FOR QUALIFICATION

This Application comprises:

(A)        Pages numbered 1 to 20, consecutively;

The statement of eligibility and qualification of the Trustee under the Indenture to be qualified on Form T-1 (filed herewith as Exhibit 25.1); and

The following exhibits, in addition to those filed as part of the statement of eligibility and qualification of the Trustee:

(i)           Exhibit T3A.1 — Certificate and Articles of Incorporation of Concordia International Corp. (f/k/a Mercari Acquisition Corp.) dated January 20, 2010 (incorporated by reference to the Annual Report on Form 20-F of Concordia International Corp. for the fiscal year ended December 31, 2017, filed with the Commission on March 8, 2018).

(ii)          Exhibit T3A.2 — Certificate and Articles of Continuance dated June 22, 2018 (incorporated by reference to Exhibit 99.1 to the Report on Form 6-K of Concordia International Corp., filed with the Commission on June 26, 2018).

(iii)         Exhibit T3B — Bylaw No. 1 of Mercari Acquisition Corp. (f/k/a Mercari Acquisition Corp.) dated January 21, 2010 and Bylaw No. 2 of Concordia International Corp. (incorporated by reference to the Annual Report on Form 20-F of Concordia International Corp. for the fiscal year ended December 31, 2017, filed with the Commission on March 8, 2018).

(iv)        Exhibit T3C — Form of Indenture relating to the Notes.

(v)         Exhibit T3D — Final Order of the Court.

(vi)        Exhibit T3E — Management Information Circular, dated as of May 15, 2018 (incorporated by reference to Exhibit 99.1 to the Report on Form 6-K of Concordia International Corp., filed with the Commission on May 18, 2018).

(vii)       Exhibit T3F — Trust Indenture Act Cross-Reference Table showing the location in the Indenture of the provisions inserted therein pursuant to sections 310 through 318(a), inclusive, of the Trust Indenture Act.
 
(viii)      Exhibit 25.1 — Form T-1 Qualifying GLAS Trust Company LLC as Trustee under the Indenture to be qualified.
 
20

SIGNATURE

Pursuant to the requirements of the Trust Indenture Act of 1939, the applicant, Concordia International Corp., a corporation continued under the laws of Canada, has duly caused this application to be signed on its behalf by the undersigned, thereunto duly authorized, and its seal to be hereunto affixed and attested, all in the city of Mumbai, India, on July 11, 2018.

(SEAL)
 
 
CONCORDIA INTERNATIONAL CORP.
   
 
By:
/s/ Adeel Ahmad
 
Name: Adeel Ahmad
 
Title: Chief Financial Officer

Attested By:
/s/ Vikram Kamath
 
 
Name: Vikram Kamath
 
 
Title: Vice President, Financial and Group Controller
 
 
 

EXHIBIT INDEX
 
 
EXHIBIT
DESCRIPTION
 
Certificate and Articles of Incorporation of Concordia International Corp. (f/k/a Mercari Acquisition Corp.) dated January 20, 2010 (incorporated by reference to the Annual Report on Form 20-F of Concordia International Corp. for the fiscal year ended December 31, 2017, filed with the Commission on March 8, 2018).
 
Certificate and Articles of Continuance dated June 22, 2018 (incorporated by reference to Exhibit 99.1 to the Report on Form 6-K of Concordia International Corp., filed with the Commission on June 26, 2018).
 
Bylaw No. 1 of Concordia International Corp. (f/k/a Mercari Acquisition Corp.) dated January 21, 2010 and Bylaw No. 2 of Concordia International Corp. (incorporated by reference to the Annual Report on Form 20-F of Concordia International Corp. for the fiscal year ended December 31, 2017, filed with the Commission on March 8, 2018).
 
Form of Indenture relating to the Notes.
 
Final Order of the Court.
 
Management Information Circular, dated as of May 15, 2018 (incorporated by reference to Exhibit 99.1 to the Report on Form 6-K of Concordia International Corp., filed with the Commission on May 18, 2018).
 
Trust Indenture Act Cross-Reference Table showing the location in the Indenture of the provisions inserted therein pursuant to sections 310 through 318(a), inclusive, of the Trust Indenture Act.
 
Form T-1 Qualifying GLAS Trust Company LLC as Trustee under the Indenture to be Qualified.
 
 
 


Exhibit T3C
 
INDENTURE
 
Dated as of [   ], 2018
 
Among
 
CONCORDIA INTERNATIONAL CORP.
 
THE GUARANTORS PARTY HERETO
 
and
 
GLAS TRUST COMPANY LLC,
 
as Trustee and as Collateral Agent
 
8.000% FIRST LIEN SENIOR SECURED NOTES DUE 2024
 

TABLE OF CONTENTS

ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
1
 
Section 1.01
Definitions
1
 
Section 1.02
Other Definitions
59
 
Section 1.03
Rules of Construction
60
 
Section 1.04
Swedish Terms
61
 
Section 1.05
Trust Provisions
62
 
Section 1.06
Luxembourg Terms
62
 
Section 1.07
Québec Matters.
62
 
Section 1.08
Acts of Holders
63
 
Section 1.09
Dutch Terms
66
  Section 1.10  Jersey Terms  66
  Section 1.11  Elections  66
       
ARTICLE 2 THE NOTES
67
 
Section 2.01
Form and Dating; Terms
67
 
Section 2.02
Execution and Authentication
68
 
Section 2.03
Registrar and Paying Agent
69
 
Section 2.04
Paying Agent to Hold Money in Trust
70
 
Section 2.05
Holder Lists
70
 
Section 2.06
Transfer and Exchange
70
 
Section 2.07
Replacement Notes
75
 
Section 2.08
Outstanding Notes
76
 
Section 2.09
Treasury Notes
76
 
Section 2.10
Temporary Notes
77
 
Section 2.11
Cancellation
77
 
Section 2.12
Defaulted Interest
77
 
Section 2.13
Additional Amounts
78
 
Section 2.14
CUSIP and ISIN Numbers
81
 
Section 2.15
Computation of Interest
81
       
ARTICLE 3 REDEMPTION
82
 
Section 3.01
Notices to Trustee
82
 
Section 3.02
Selection of Notes to Be Redeemed or Purchased
82
 
Section 3.03
Notice of Redemption
83
 
Section 3.04
Effect of Notice of Redemption
84
 
Section 3.05
Deposit of Redemption or Purchase Price
85
 
Section 3.06
Notes Redeemed or Purchased in Part
85
 
Section 3.07
Optional Redemption
85
 
Section 3.08
Mandatory Redemption; Open Market Purchases
86
 
Section 3.09
Tax Redemption
87
       
ARTICLE 4 COVENANTS
88
 
Section 4.01
Payment of Notes
88
 
Section 4.02
Maintenance of Office or Agency
88
 
Section 4.03
Reports and Other Information
88
 
Section 4.04
Compliance Certificate
91
 
Section 4.05
Taxes
92
 
i

 
Section 4.06
Stay, Extension and Usury Laws
92
 
Section 4.07
Restricted Payments
92
 
Section 4.08
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
96
 
Section 4.09
Incurrence of Debt
98
 
Section 4.10
Asset Sales; Casualty Events
100
 
Section 4.11
Transactions with Affiliates
104
 
Section 4.12
Liens
106
 
Section 4.13
Corporate Existence
107
 
Section 4.14
Change of Control
107
 
Section 4.15
Additional Note Guarantees
109
 
Section 4.16
Sale and Leaseback Transactions
109
 
Section 4.17
Business Activities
110
 
Section 4.18
Creation of Unrestricted Subsidiaries
110
 
Section 4.19
Covenant Suspension on Investment Grade Rating
111
 
Section 4.20
[Reserved]
113
 
Section 4.21
After-Acquired Property
113
 
Section 4.22
Companies Act 2014 (Ireland)
113
       
ARTICLE 5 SUCCESSORS
113
 
Section 5.01
Merger, Amalgamation, Arrangement, Consolidation or Sale of All or Substantially All Assets
113
 
Section 5.02
Surviving Entity Substituted
115
       
ARTICLE 6 DEFAULTS AND REMEDIES
116
 
Section 6.01
Events of Default
116
 
Section 6.02
Acceleration
119
 
Section 6.03
Other Remedies
119
 
Section 6.04
Waiver of Past Defaults
119
 
Section 6.05
Control by Majority
120
 
Section 6.06
Limitation on Suits
120
 
Section 6.07
Rights of Holders to Receive Payment
121
 
Section 6.08
Collection Suit by Trustee
121
 
Section 6.09
Restoration of Rights and Remedies
121
 
Section 6.10
Rights and Remedies Cumulative
121
 
Section 6.11
Delay or Omission Not Waiver
122
 
Section 6.12
Trustee May File Proofs of Claim
122
 
Section 6.13
Priorities
122
 
Section 6.14
Undertaking for Costs
123
       
ARTICLE 7 TRUSTEE
123
 
Section 7.01
Duties of Trustee
123
 
Section 7.02
Rights of Trustee
125
 
Section 7.03
Individual Rights of Trustee
129
 
Section 7.04
Trustee’s Disclaimer
129
 
Section 7.05
Notice of Defaults
130
 
Section 7.06
Reports by Trustee to Holders of the Notes
130
 
ii

 
Section 7.07
Compensation and Indemnity
130
 
Section 7.08
Replacement of Trustee
132
 
Section 7.09
Successor Trustee by Merger
133
 
Section 7.10
Eligibility; Disqualification
133
 
Section 7.11
Preferential Collection of Claims Against the Company
133
 
Section 7.12
Collateral Documents; Intercreditor Agreement
133
       
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE
134
 
Section 8.01
Legal Defeasance
134
 
Section 8.02
Covenant Defeasance
135
 
Section 8.03
Conditions to Legal or Covenant Defeasance
135
 
Section 8.04
Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions
137
 
Section 8.05
Repayment to the Company
138
 
Section 8.06
Reinstatement
138
       
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER
138
 
Section 9.01
Without Consent of Holders
138
 
Section 9.02
With Consent of Holders
140
 
Section 9.03
Record Dates for Consents
142
 
Section 9.04
Notation on or Exchange of Notes
142
 
Section 9.05
Trustee and Collateral Agent to Sign Amendments, Etc
142
       
ARTICLE 10 GUARANTEES
143
 
Section 10.01
Guarantee
143
 
Section 10.02
Limitation on Guarantor Liability
144
 
Section 10.03
Luxembourg Provisions
145
 
Section 10.04
Execution and Delivery
145
 
Section 10.05
Subrogation
146
 
Section 10.06
Benefits Acknowledged
146
 
Section 10.07
Release of Note Guarantees
146
 
Section 10.08
Luxembourg Guaranty Limitation
147
 
Section 10.09
Jersey Guaranty Waivers
148
 
Section 10.10
Swiss Guaranty Limitation
148
 
Section 10.11
Irish Guaranty Limitation
151
 
Section 10.12
Swedish Guaranty Limitation
151
 
Section 10.13
Dutch Guaranty Limitation
151
 
Section 10.14
Joint and Several Liability
151
       
ARTICLE 11 SATISFACTION AND DISCHARGE
152
 
Section 11.01
Satisfaction and Discharge
152
 
Section 11.02
Application of Trust Money
152
       
ARTICLE 12 COLLATERAL
153
 
Section 12.01
Collateral Documents
153
 
Section 12.02
Creation of Parallel Debt
154
 
Section 12.03
Release of Collateral
156
 
iii

 
Section 12.04
Suits to Protect the Collateral
158
 
Section 12.05
Authorization of Receipt of Funds by the Trustee Under the Collateral Documents
158
 
Section 12.06
Purchaser Protected
158
 
Section 12.07
Powers Exercisable by Receiver or Trustee
158
 
Section 12.08
Release Upon Termination of the Company’s Obligations
159
 
Section 12.09
Collateral Agent
159
 
Section 12.10
Designations
168
 
Section 12.11
No Impairment of the Security Interests
168
 
Section 12.12
Insurance
169
       
ARTICLE 13 MISCELLANEOUS
169
 
Section 13.01
Notices
169
 
Section 13.02
Communication by Holders with Other Holders
171
 
Section 13.03
Certificate and Opinion as to Conditions Precedent
171
 
Section 13.04
Statements Required in Certificate or Opinion
171
 
Section 13.05
Rules by Trustee and Agents
172
 
Section 13.06
No Personal Liability of Directors, Officers, Employees, Members, Partners and Shareholders
172
 
Section 13.07
Governing Law
172
 
Section 13.08
Waiver of Jury Trial
172
 
Section 13.09
No Adverse Interpretation of Other Agreements
172
 
Section 13.10
Successors
172
 
Section 13.11
Severability
173
 
Section 13.12
Counterpart Originals
173
 
Section 13.13
Table of Contents, Headings, Etc
173
 
Section 13.14
U.S.A. PATRIOT Act
173
 
Section 13.15
Payments Due on Non-Business Days
173
 
Section 13.16
Submission to Jurisdiction
174
 
Section 13.17
Waiver of Immunity
174
 
Section 13.18
Conversion of Currency
175
 
Section 13.19
Accounting Provisions
175
 
Section 13.20
Criminal Rate
176
 
Section 13.21
Limitations Act, 2002 (Ontario)
176
 
Section 13.22
Intercreditor Agreement
177
 
Exhibit A
Form of Note
Exhibit B
Form of Certificate of Transfer
Exhibit C
Form of Certificate of Exchange
Exhibit D
Form of Supplemental Indenture to Be Delivered by Subsequent Guarantors
Exhibit E-1
Form of Pledge and Security Agreement
 
iv

INDENTURE, dated as of [          ], 2018, among CONCORDIA INTERNATIONAL CORP. (formerly known as Concordia Healthcare Corp.), a corporation continued under the laws of Canada (the “Company”), the Guarantors (as defined herein) party hereto and GLAS Trust Company LLC (“GLAS”), a limited liability company organized and existing under the laws of the State of New Hampshire, as Trustee and as Collateral Agent.
 
W I T N E S S E T H:
 
WHEREAS,  in connection with that certain Restructuring Support Agreement (as defined below), the Company, the Company’s guarantor subsidiaries party thereto (collectively, “Concordia”), Concordia Healthcare (Canada) Limited (“CHCL”) and the Consenting Debtholders (as defined in the Restructuring Support Agreement) will complete a recapitalization transaction described in the Company’s Management Information Circular, dated May 15, 2018 (the “Recapitalization Transaction”), through a series of transactions in connection with certain indebtedness of Concordia to be effectuated pursuant to that certain Plan of Arrangement (the “Plan”) filed by Concordia and CHCL in the proceeding captioned CV-17-584836-00CL and commenced in Ontario Superior Court of Justice (Commercial List) (the “Ontario Court”) under section 192 of the Canada Business Corporations Act, R.S.C. 1985, c. C-44, as amended (the “CBCA”), and Rules 14.05(2) and 14.05(3) of the Rules of Civil Procedure on October 20, 2017 (the “CBCA Proceedings”);
 
WHEREAS, in connection with the Recapitalization Transaction, the Company has distributed initial term loans under the Credit Agreement (as defined below) to certain lenders, consisting of (i) $[   ] in aggregate principal amount of term loans denominated in U.S. dollars and (ii) €[   ] in aggregate principal amount of term loans denominated in euros;
 
WHEREAS, in connection with the Recapitalization Transaction, the Company has duly authorized the creation and issue of $300,000,000 in aggregate principal amount of 8.000% First Lien Senior Secured Notes due 2024 (the “Initial Notes”); and
 
WHEREAS, in connection with the Recapitalization Transaction, the Company and each of the Guarantors have duly authorized the execution and delivery of this Indenture.
 
NOW, THEREFORE, the Company, the Guarantors, the Trustee and the Collateral Agent agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders.
 
ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE
 
Section 1.01           Definitions.
 
1

Accounting Change” means any change in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the International Accounting Standards Board as adopted by the Chartered Professional Accountants of Canada.
 
Acquired Debt” means Debt (1) of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary, pursuant to a Permitted Acquisition or otherwise, or (2) assumed in connection with a Permitted Acquisition.  Acquired Debt shall be deemed to have been Incurred, with respect to clause (1) of the preceding sentence, on the date such Person becomes a Restricted Subsidiary and, with respect to clause (2) of the preceding sentence, on the date of consummation of such Permitted Acquisition.
 
Additional Notes” means additional Notes (other than the Initial Notes) issued from time to time under this Indenture in accordance with Section 2.01 and Section 4.09, as part of the same series as the Initial Notes whether or not they bear the same “CUSIP” number.
 
Affiliate” of any Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such 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 that correspond to the foregoing.
 
After-Acquired Property” means property (other than Excluded Property) acquired by the Company or a Guarantor that is not automatically subject to a perfected security interest under the Collateral Documents, which the Company or such Guarantor will provide a First Priority Lien over such property (or, in the case of a new Guarantor, such of its property) in favor of the Collateral Agent (so long as the First Priority Credit Documents are outstanding, only to the extent that such assets secure the First Priority Credit Obligations) and deliver certain certificates and opinions in respect thereof, all as and to the extent required by this Indenture, the Intercreditor Agreements or the Collateral Documents.
 
Agent” means any Registrar, Paying Agent or Custodian.
 
Applicable Authorized Representative” shall have the meaning set forth in the Intercreditor Agreement.
 
Applicable Premium” means, with respect to a Note on any applicable redemption date, the greater of:
 
(1)           1.0% of the then outstanding principal amount of the Note; and
 
(2)           the excess, if any, of:
 
2

(a)          the present value at such redemption date of the sum of (i) the Redemption Price of the Note at [          ], 2020 (such Redemption Price being set forth in Section 3.07(d)) plus (ii) all required interest payments due on the Note through [               ], 2020 (excluding accrued and unpaid interest, if any, to, but not including, 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.
 
Applicable Procedures” means, with respect to any matter at any time relating to a Global Note or beneficial interest therein, the rules and procedures of the Depositary for such Global Note, Euroclear or Clearstream, in each case, to the extent applicable to such matter and as in effect from time to time.
 
Applicable Voting Percentage” means at any time (x) if at such time the Initial Notes held in the aggregate by the Plan Sponsors constitute more than 27.5% of the aggregate principal amount of the Initial Notes outstanding at such time, 66.66%, and (y) at any other time (so long as the Plan Sponsors have notified the Trustee that the holdings of the Plan Sponsors in the aggregate constitute less than 27.5% of the aggregate principal amount of the Initial Notes outstanding at such time), 50.1%. Each Holder and beneficial owner of an interest in an Initial Note that, in either case, is a Plan Sponsor shall promptly provide to the Trustee notice of the aggregate principal amount of the Initial Notes held by such Holder or beneficial owner, as the case may be, and its controlled affiliates (which shall include “Affiliates” as defined in the Company’s articles, as amended) upon any change in the amount of such holdings and, if such notice results in a change in the Applicable Voting Percentage, the Trustee shall notify the Company of any such change in the Applicable Voting Percentage. The Trustee shall be entitled to rely on all such notices absent manifest error. As of the Issue Date, the Applicable Voting Percentage is 66.66%.
 
Asset Sale” means any transfer, conveyance, sale, lease or other disposition (including, without limitation, dispositions pursuant to any consolidation, merger, arrangement or amalgamation) by the Company or any of its Restricted Subsidiaries to any Person (other than to the Company or one or more of its Restricted Subsidiaries) in any single transaction or series of transactions of:
 
(1)           Capital Interests in another Person (other than directors’ qualifying shares or shares or interests required to be held by foreign nationals pursuant to local law); or
 
(2)           any other property or assets (other than in the ordinary course of business, including, as applicable, inventory sales); provided, however, that the term “Asset Sale” shall exclude:
 
(a)          any asset disposition permitted by Section 5.01 that constitutes a disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries taken as a whole;
 
3

(b)          [reserved];
 
(c)          sales or other dispositions of cash or Eligible Cash Equivalents;
 
(d)          sales or other dispositions of Capital Interests, or Debt or other securities of or in Unrestricted Subsidiaries;
 
(e)          dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under an open source license), which (i) are in the ordinary course of business, (ii) do not materially interfere with the business of the Company and its Restricted Subsidiaries taken as a whole or (iii) relate to closed facilities or closed storage or distribution centers or the discontinuation of any product line;
 
(f)           the disposition of assets that, in the good faith judgment of the Company, are surplus, unnecessary, unsuitable, obsolete, damaged, worn out or no longer used or useful in the business of such entity or are economically impracticable to maintain, or any disposition of inventory or goods held for sale in the ordinary course of business;
 
(g)          a Restricted Payment or Permitted Investment that is otherwise permitted by this Indenture;
 
(h)          [reserved];
 
(i)           the concurrent purchase and sale or swap or exchange of Related Business Assets or a combination of Related Business Assets between the Company or any of its Restricted Subsidiaries and another Person to the extent that the Related Business Assets received by the Company or its Restricted Subsidiaries have a Fair Market Value equal to or greater than the Related Business Assets being transferred; provided that upon the consummation thereof, in the case of any Grantor, the Collateral Agent has a perfected Lien on the Related Business Assets having the same priority as any Lien held on the property or assets so exchanged, sold or disposed
 
(j)           the creation of a Lien (but not the sale or other disposition of the property subject to such Lien);
 
(k)          (x) sales or leases of inventory in the ordinary course of business, (y) the leasing or subleasing of real property in the ordinary course of business and (z) leases, subleases, assignments, licenses, cross-licenses and sublicenses of assets in the ordinary course of business to third persons not interfering in any material respect with the business of the Company or any of its Restricted Subsidiaries and otherwise in accordance with the provisions of this Indenture, including subleases and charters related to corporate aircraft leases;
 
4

(l)           any disposition by a Subsidiary to the Company or by the Company or a Subsidiary to a Restricted Subsidiary;
 
(m)         sales, dispositions or forgiveness of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business or in connection with the collection or compromise thereof;
 
(n)          licenses, sublicenses, covenants not to sue, releases or other rights under Intellectual Property (including in connection with distribution, license and supply agreements) granted to or from other Persons (or expiration or termination of any of the foregoing) in the ordinary course of business or in the reasonable business judgment of the Company or the Restricted Subsidiaries, (ii) the sale or disposal of Intellectual Property, or any issuances or registrations, or applications for issuances or registrations, of any Intellectual Property, which are in the ordinary course of business or, in the reasonable good faith determination of the Company, are uneconomical, negligible, or not material to the conduct of the business of the Company and the Restricted Subsidiaries taken as a whole, and (iii) the abandonment, cancellation or lapse of Intellectual Property, or any issuances or registrations, or applications for issuances or registrations, of any Intellectual Property, in each case, in the ordinary course of business or in the reasonable business judgment of the Company or the Restricted Subsidiaries;
 
(o)          the expiration of any option agreement in respect of real or personal property and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business;
 
(p)          dispositions of Investments in joint ventures to the extent required by, or made pursuant to, contractual buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
 
(q)          transfers of property subject to a Casualty Event upon receipt of the Net Cash Proceeds of such Casualty Event;
 
(r)           sales of non-core assets acquired in connection with a Permitted Acquisition which, within 30 days of the date of such Permitted Acquisition, are designated in writing to the Trustee as being held for sale and not material to the continued operation of the Company or any of the Restricted Subsidiaries or any of their respective businesses;
 
(s)          substantially contemporaneous exchanges or swaps, including transactions covered by Section 1031 of Code, of property or assets so long as the exchange or swap is made for fair value and on an arm’s length basis for like property or assets and not to exceed $10,000,000 in the aggregate; provided that upon the consummation of such exchange or swap, in the case of any Grantor, the Collateral Agent has a perfected Lien having the same priority as any Lien held on the property or assets so exchanged or swapped; or
 
5

(t)           the unwinding of any Hedging Obligation or obligation under any Hedge Agreement.
 
Notwithstanding anything in this definition, no sale, disposition or other transfer may be made to any Unrestricted Subsidiary consisting of Intellectual Property which is material to the Company and its Restricted Subsidiaries, taken as a whole.
 
For purposes of this definition, any series of related transactions that, if effected as a single transaction, would constitute an Asset Sale, shall be deemed to be a single Asset Sale effected when the last such transaction which is a part thereof is effected.
 
Attributable Debt” means, in respect of a Sale and Leaseback Transaction, as of any date of determination, the present value (discounted at the rate of interest implicit in such transaction) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such Sale and Leaseback Transaction (including any period for which such lease has been or may be extended).
 
Authorized Officer” means, as applied to any Person, any individual holding the position of chairman of the board (if an officer), chief executive officer, president, vice president (or the equivalent thereof), chief financial officer, treasurer or controller of such Person or any other individual designated (i) by the Board of Directors or member of such Person or (ii) in writing by an existing Authorized Officer of such Person as an authorized signatory of any document or certificate delivered hereunder.
 
Average Life” means, as of any date of determination, with respect to any Debt, the quotient obtained by dividing (i) the sum of the products of (x) the number of years from the date of determination to the dates of each successive scheduled principal payment (including any sinking fund or mandatory redemption payment requirements) of such Debt multiplied by (y) the amount of such principal payment by (ii) the sum of all such principal payments.
 
Bankruptcy Law” means Title 11, U.S. Code, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-up and Restructuring Act (Canada) and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, examinership, rearrangement, receivership, insolvency, winding-up, reorganization or similar debtor relief laws of the United States, Canada or other applicable jurisdictions from time to time in effect, including, without limitation, the arrangement provisions of any applicable Canadian corporate legislation as now or hereafter in effect, such laws of Ireland, Luxembourg, the Netherlands, Switzerland and the Swedish Act on Reconstruction (Sw.  Lag om företagsrekonstruktion (1996:764)), the Swedish Bankruptcy Act (Sw.  Konkurslag (1987:672)) and the grant of any application, any declaration, decision or winding – up to which reference is made in Article 8 (Meaning of Bankruptcy) of the Interpretation (Jersey) Law 1954.
 
6

Barbados Debenture” means the Barbados law governed security agreement to be executed by each of Concordia Laboratories Inc. (a société à responsabilité limitée incorporated in Luxembourg, having its registered office at 8-10, avenue de la Gare, L-1610 Luxembourg, and registered with the Registre de Commerce et des Sociétés, Luxembourg under number B200376 and registered as an external company in Barbados with registration number 39923), Concordia Pharmaceuticals Inc. (a société à responsabilité limitée incorporated in Luxembourg, having its registered office at 8-10, avenue de la Gare, L-1610 Luxembourg, and registered with the Registre de Commerce et des Sociétés, Luxembourg under number B200344 and registered as an external company in Barbados with registration number 39924) and each other Barbados Domiciled Grantor (if any), in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
Barbados Domiciled Grantor” means any Grantor incorporated or otherwise organized or registered under the laws of Barbados.
 
Base Amount” means (x) $50.0 million prior to the third anniversary of the Issue Date and (y) thereafter, $0.
 
beneficial ownership” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, and “beneficial owner” has a corresponding meaning.
 
Board of Directors” means:
 
(1)           with respect to a corporation, the board of directors of such corporation or any duly authorized committee thereof;
 
(2)           with respect to a limited liability company, the board of directors or managers, manager or managing member of such limited liability company or any duly authorized committee thereof;
 
(3)           with respect to a partnership, the general partner of such partnership or any duly authorized committee thereof; and
 
(4)           with respect to any other entity, the board of directors or similar body of the general partner or managers of such entity or any duly authorized committee thereof.
 
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).
 
7

Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banks or trust companies in the Borough of Manhattan, The City of New York or The City of Toronto, Ontario, Canada are obligated or authorized by law or executive order to close.
 
Canadian Domiciled Grantor” means the Company and any other Grantor incorporated or otherwise organized under the laws of Canada or any province or territory thereof.
 
Canadian Intellectual Property Security Agreement” means each Ontario law governed agreement to be executed by each Grantor that owns Intellectual Property registered in Canada, in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
Canadian Pledge and Security Agreement” means the Canadian Pledge and Security Agreement to be executed by each of the Company, each other Canadian Domiciled Grantor (if any), Concordia Laboratories Inc. (a société à responsabilité limitée incorporated in Luxembourg, having its registered office at 8-10, avenue de la Gare, L-1610 Luxembourg, and registered with the Registre de Commerce et des Sociétés, Luxembourg under number B200376), Concordia Pharmaceuticals Inc. (a société à responsabilité limitée incorporated in Luxembourg, having its registered office at 8-10, avenue de la Gare, L-1610 Luxembourg, and registered with the Registre de Commerce et des Sociétés, Luxembourg under number B200344), Amdipharm Mercury International Limited (a company incorporated in Jersey with registered number [   ]) and each other Grantor that owns Intellectual Property in Canada, in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
Canadian Securities Laws” means the securities laws, regulations and rules of each of the provinces and territories of Canada, the forms and disclosure requirements made or promulgated under those laws, regulations or rules, the policy statements, rules, orders and companion policies of or administered by the Canadian Securities Administrators, and applicable discretionary rulings, blanket orders and orders issued by the Canadian Securities Administrators pursuant to such laws, regulations, rules and policy statements, all as amended and in effect from time to time.
 
Canadian Security Agreements” means the Canadian Pledge and Security Agreement and the Canadian Intellectual Property Security Agreement.
 
Capital Interests” in any Person means any and all shares, interests (including Preferred Interests), participations or other equivalents in the equity (however designated) of such Person and any rights (other than Debt securities convertible into an equity interest), warrants or options to acquire an equity interest of such Person (in each case, other than royalties).
 
8

Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under IFRS and, for purposes hereof, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with IFRS; provided that any obligations that would not be accounted for as Capital Lease Obligations under IFRS as of the Issue Date shall be treated as operating leases and shall not be included in Capital Lease Obligations after the Issue Date due to any changes in IFRS or interpretations thereunder or otherwise.
 
cash” means any of U.S. dollars, Canadian dollars, pound sterling, euros, or, in the case of any foreign Subsidiary, such local currency held by it from time to time in the ordinary course and not for speculation.
 
Casualty Event” means any settlement of, or payment in respect of, (i) any property or casualty insurance claim or (ii) any seizure, condemnation, confiscation or taking under the power of eminent domain or expropriation of, requisition of title to or use of, or any similar event in respect of, or proceeding relating to, any asset of the Company or any Restricted Subsidiary.
 
Change in Tax Law,” for the purposes of Section 3.09, means (i) any amendment to, or change in, the laws (or any regulations or rulings promulgated thereunder) of a relevant Taxing Jurisdiction which amendment or change is announced and becomes effective after the Issue Date (or, if the applicable Taxing Jurisdiction became a Taxing Jurisdiction on a date after the Issue Date, after such later date) or (ii) any amendment to, or change in, an official written interpretation of such laws, regulations or rulings (including by virtue of a holding, judgment or order by a court of competent jurisdiction or a change in published administrative practice) which amendment or change is announced and becomes effective after the Issue Date (or, if the applicable Taxing Jurisdiction became a Taxing Jurisdiction on a date after the Issue Date, after such later date).
 
Change of Control” means:
 
(1)           the Company becomes aware (by way of a report or any other filing pursuant to Canadian Securities Laws or the Exchange Act, proxy, vote, written notice or otherwise) that any “person” or “group” of related persons (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Issue Date) (other than (x) any employee benefit plan and/or Person acting as the trustee, agent or other fiduciary administrator and (y) any Permitted Holders or group of Permitted Holders) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Issue Date), directly or indirectly, of more than 50% of the Voting Interests of the Company (or its successor by way of merger, amalgamation, arrangement, consolidation or purchase of all or substantially all of its assets);
 
9

(2)           the merger, amalgamation, consolidation or arrangement of the Company, including by way of an exchange of securities or otherwise, with or into another Person or the merger, amalgamation, consolidation or arrangement of another Person with or into the Company, the merger, amalgamation, consolidation or arrangement of any Person, including by way of an exchange of securities or otherwise, with or into a Subsidiary of the Company, unless the holders of a majority of the aggregate voting power of the Voting Interests of the Company, immediately prior to such transaction, directly or indirectly, hold securities of the surviving or transferee Person that represent, immediately after such transaction, at least a majority of the aggregate voting power of the Voting Interests of the surviving or transferee Person; or
 
(3)           the Company sells, directly or indirectly, assigns, conveys, transfers, leases or otherwise disposes of (other than by way of merger, amalgamation, consolidation or arrangement), either in one transaction or a series of related transactions, all or substantially all of its assets to a Person other than a Restricted Subsidiary of the Company; provided that a sale of the North American Assets shall not constitute a “Change of Control” under this clause (3).
 
Notwithstanding the foregoing or any provision of Section 13d-3 of the Exchange Act, (i) a Person or group shall not be deemed to beneficially own Voting Interests 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 Interests in connection with the transactions contemplated by such agreement and (ii) the right to acquire Voting Interests (so long as such Person does not have the right to direct the voting of the Voting Interests subject to such right) or any veto power in connection with the acquisition or disposition of Voting Interests will not cause a party to be a beneficial owner.
 
Clearstream” means Clearstream Banking, Société Anonyme, or any successor securities clearing agency.
 
Code” means the U.S. Internal Revenue Code of 1986, as amended.
 
Collateral” means all of the assets and properties subject or purported to be subject to Liens created under the Collateral Documents in favor of the Collateral Agent for the benefit of the Trustee and the Holders.
 
Collateral Agent” means GLAS in its capacity as “Collateral Agent” under this Indenture and under the Collateral Documents, or any successor or assign thereto in such capacity.
 
Collateral Documents” means, collectively, any security agreements, hypothecs, intellectual property security agreements, mortgages, collateral assignments, intercreditor agreements, security agreement supplements, pledge agreements, bonds or any similar agreements, guarantees and each of the other agreements, instruments or documents that creates or purports to create a Lien or guarantee in favor of the Collateral Agent for its benefit and the benefit of the Trustee and the Holders of the Notes 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 and shall include the Security Agreements.
 
10

Commission” means the U.S. Securities and Exchange Commission, or any successor thereto.
 
Common Interests” of any Person means Capital Interests in such Person that do not rank prior, as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding-up of such Person, to Capital Interests of any other class in such Person.
 
Company” means the party named as such in the preamble of this Indenture, or any Surviving Entity.
 
Consolidated Adjusted EBITDA” means the Consolidated Net Income of the Company and its Restricted Subsidiaries determined on a consolidated basis for such period for which financial statements are available, which may include internal financial statements prepared in good faith by the Company:
 
(a)           increased, in each case to the extent deducted (and not added back) in Consolidated Net Income and, in each case, without duplication with any other item described in this clause (a) or any item excluded pursuant to the definition of Consolidated Net Income, by:
 
(i)           provision for taxes based on income or profits or capital, including state, provincial, franchise, excise and similar taxes and foreign withholding taxes of such Person paid or accrued, including any penalties and interest relating to any tax examinations; plus
 
(ii)          Consolidated Interest Expense for such period; plus
 
(iii)         depreciation and amortization and other non-cash charges or expenses (including any reserves, write-downs or write-offs) of such Person for such period (except to the extent that such non-cash charges are reserved for cash charges to be taken in the future) of such Person for such period; plus
 
(iv)         extraordinary, non-recurring or exceptional losses, charges and expenses actually paid during such period (including, without limitation, losses, charges and expenses attributable to (a) the Competition and Markets Authority investigation (or settlement) and (b) any litigation (or settlement) connected with matters which are the subject of the current Competition and Markets Authority investigation); plus
 
(v)          fees, charges and expenses relating to the Recapitalization Transaction to the extent paid prior to or within six months after the Issue Date (including, without limitation, any financial advisory fees, filing fees, accounting fees, legal fees and other similar advisory and consulting fees and related out-of-pocket expenses and other fees, but excluding, however, any interest or principal paid in cash in relation to or in connection with amounts due under the Existing Credit Agreement and related loan documentation; plus
 
11

(vi)         (A) expenses, costs and charges related to restructuring or relocation actually incurred in such period; provided that the aggregate amount added back pursuant to this subclause (A) for expenses, costs and charges related to restructuring for any four fiscal quarter period shall not exceed 6% of Consolidated Adjusted EBITDA in any fiscal year (it being understood that relocation costs shall not be subject to this proviso), (B) expenses, costs and charges related to Permitted Acquisitions after the Issue Date actually incurred in such period and (C) expenses, costs and charges related to severance actually incurred in such period; plus
 
(vii)        losses, charges and expenses relating to asset dispositions or the sale or other disposition of any Capital Interests of any Person, in each case, to the extent permitted by this Indenture, other than in the ordinary course of business, as determined in good faith by an Authorized Officer of the Company; plus
 
(viii)        losses, charges and expenses attributable to disposed or discontinued operations and losses, charges and expenses related to the disposal of disposed, abandoned, closed or discontinued operations, in all cases, other than in the ordinary course of business; plus
 
(ix)          losses, charges and expenses attributable to the early extinguishment or conversion of Debt, Hedge Agreements or other derivative instruments (including premiums paid); plus
 
(x)           charges, expenses and fees actually incurred and paid in cash in such period, including financial advisory, accounting, auditor, legal and other consulting and advisory fees and any Canadian Securities Administrators, the Commission, SEDAR, EDGAR or other filing fees and expenses, or any amortization thereof, in connection with any equity offering, merger, amalgamation, recapitalization, asset disposition, Incurrence or repayment of Debt, refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transaction undertaken but not completed) and any non-recurring charges and expenses (including non-recurring merger or amalgamation expenses) incurred as a result of any such transaction; provided that any such charges, expenses and fees are paid prior to or within three months of such transaction; plus
 
12

(xi)          the amount of cost savings and cost synergies projected by the Company in good faith to be realized in connection with any Permitted Acquisition after the Issue Date (which cost savings or cost synergies shall be subject only to certification in reasonable detail by an Authorized Officer of the Company and shall be calculated on a Pro Forma Basis as though such cost savings or synergies had been realized on the first day of the relevant period), net of the amount of actual benefits realized during such period from such actions; provided that (A) such cost savings or synergies are reasonably identifiable and factually supportable, (B) are expected to be realized (in the good faith determination of the Company) within twelve (12) months after the date of such Permitted Acquisition, (C) no cost savings or cost synergies shall be added to the extent duplicative of any expenses or charges otherwise added back to Consolidated Adjusted EBITDA through another Pro Forma adjustment for such period and (D) the aggregate amount added back pursuant to this clause (xi) for any four fiscal quarter period shall not exceed 10.0% of Consolidated Adjusted EBITDA prior to accounting for adjustments pursuant to clauses (a)(iv) above through this clause (xi);
 
(b)           decreased (in each case to the extent added in Consolidated Net Income) by (without duplication):
 
(i)           extraordinary, non-recurring or exceptional gains during such period; plus
 
(ii)          net unrealized gains on Hedge Agreements and any net after tax gain or income from the early extinguishment of Debt; plus
 
(iii)         gains relating to asset dispositions or the sale or other disposition of any Capital Interests of any Person other than in the ordinary course of business; plus
 
(iv)         cash payments during such period on account of accruals on or reserves added to Consolidated Adjusted EBITDA pursuant to clause (a) above; plus
 
(v)          non-cash gains, excluding any non-cash gains that represent the reversal of any accrual of, or cash reserve for, anticipated cash charges that were deducted (and not added back) in the calculation of Consolidated Adjusted EBITDA for any prior period.
 
Consolidated Interest Expense” means, with respect to any Person for any period, without duplication, the sum of:
 
(1)           the 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, as determined on a consolidated basis in accordance with IFRS, including, without limitation:
 
13

(a)          any amortization of Debt discount;
 
(b)          the net payments (less net payments received) under any Hedging Obligation or Swap Contract in respect of interest rate protection (including any amortization of discounts, but excluding mark to market movements in the valuation of Hedging Obligations);
 
(c)          the interest portion of any deferred payment obligation;
 
(d)          all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers’ acceptances; and
 
(e)          all accrued interest;
 
(2)           the interest component of Capital Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such Person and its Restricted Subsidiaries during such period determined on a consolidated basis in accordance with IFRS; and
 
(3)           all capitalized interest of such Person and its Restricted Subsidiaries for such period; less interest income of such Person and its Restricted Subsidiaries for such period; provided, however, that Consolidated Interest Expense will exclude (I) the amortization or write-off of debt issuance costs and deferred financing fees, commissions, fees and expenses and (II) any expensing of interim loan commitment and other financing fees.
 
Consolidated Net Income” means the net income (or loss) of the Company and its Restricted Subsidiaries determined on a consolidated basis for such period; provided that, without duplication:
 
(1)           the cumulative effect of a change in accounting principles shall be excluded;
 
(2)           the net after-tax effect of extraordinary, non-recurring, unusual or exceptional gains, losses, charges and expenses, including any relating to or arising in connection with claims or litigation (including legal fees, settlements, judgments and awards), shall be excluded;
 
(3)           the net after-tax effect of gains, losses, charges and expenses attributable to asset dispositions or the sale or other disposition of any Capital Interests of any Person other than in the ordinary course of business, as determined in good faith by an Authorized Officer of the Company, shall be excluded;
 
(4)           the net after-tax effect of gains, losses, charges and expenses attributable to disposed, discontinued, closed or abandoned operations and any net after-tax gains, losses, charges and expenses related to the disposal of disposed, abandoned, closed or discontinued operations shall be excluded;
 
14

(5)           the net after-tax effect of gains, losses, charges and expenses attributable to the early extinguishment or conversion of Debt, Hedge Agreements or other derivative instruments (including deferred financing expenses written off and premiums paid) shall be excluded;
 
(6)           the net income for such period of any Person that is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income shall be increased by the amount of dividends or distributions or other payments that are actually paid to the Company or any Restricted Subsidiary thereof in such period in cash;
 
(7)           the effects of adjustments (including the effects of such adjustments pushed down to the Company and its Restricted Subsidiaries) in any line item in such Person’s consolidated financial statements pursuant to IFRS resulting from the application of recapitalization accounting or purchase accounting, as the case may be, in connection with the Transactions, any acquisition or any joint venture investments or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded;
 
(8)           impairment and amortization charges, asset write-offs and write downs, including impairment and amortization charges, asset write-offs and write downs related to goodwill, intangible assets, long lived assets, investments in debt and equity securities or as a result of a change in law or regulation, in each case, pursuant to IFRS shall be excluded;
 
(9)           non-cash compensation charges and expenses, including any such charges and expenses arising from grants of stock appreciation or similar rights, phantom equity, stock options, restricted stock, deferred stock or other rights or equity incentive programs and non-cash deemed finance charges in respect of any pension liabilities or other provisions shall be excluded;
 
(10)         (i) charges and expenses pursuant to any management equity plan, long-term incentive plan or stock option plan or any other management or employee benefit plan or agreement, any stock subscription or shareholder agreement and (ii) charges, expenses, accruals and reserves in connection with the rollover, acceleration or payout of Capital Interests held by management of the Company or any of the Restricted Subsidiaries or Parent Entities, in the case of each of (i) and (ii) above, to the extent that (in the case of any cash charges and expenses) such charges, expenses, accruals and reserves are funded with cash proceeds contributed to the capital of the Company or any Parent Entity or net cash proceeds of an issuance of Capital Interests (other than Redeemable Capital Interests) of the Company or any direct or indirect parent of the Company shall be excluded;
 
(11)         any non-cash loss, charge or expense relating to the incurrence of obligations in respect of an “earn out” or other similar contingent obligations shall be excluded, but only for so long as such loss, charge or expense remains a non-cash contingent obligation;
 
15

(12)         to the extent covered by insurance (including business interruption insurance) and actually reimbursed or, so long as the Company has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that (i) such coverage is not denied by the applicable carrier or indemnifying party in writing within 270 days and (ii) such amount is in fact reimbursed within 365 days of the date of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within 365 days), losses, charges, expenses, accruals and reserves with respect to liability or casualty events or business interruption shall be excluded;
 
(13)         (i) non-cash or unrealized gains or losses in respect of obligations under Hedge Agreements or any ineffectiveness recognized in earnings related to qualifying hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge transactions, in each case, in respect of obligations under Hedge Agreements, and (ii) gains or losses resulting from currency translation gains or losses related to currency re-measurements of Debt (including gains or losses resulting from (x) Hedge Agreements for currency exchange risk and (y) intercompany Debt) and all other foreign currency translation gains or losses to the extent such gains or losses are non-cash items shall be excluded;
 
(14)         non-cash interest charges on defined benefit, defined contribution or other pension plans shall be excluded;
 
(15)         any expenses or charges to the extent paid by a third party that is not a Restricted Subsidiary on behalf of the Company or a Restricted Subsidiary (and not required to be reimbursed), and any gain resulting from such payment, shall be excluded; and
 
(16)         solely for the purpose of determining the amount available under Section 4.07(a)(3)(i), the net income (or loss) for such period of any Restricted Subsidiary (other than any of the Guarantors) shall be excluded to the extent the declaration or payment of dividends or similar distributions by that 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, is otherwise restricted 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 equityholders; provided that Consolidated Net Income of the Company will be increased by the amount of dividends or other distributions or other payments actually paid in cash to the Company or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein.
 
Consolidated Total Assets” means, as of any date of determination and on a Pro Forma Basis for any acquisition or disposition or other Specified Transaction that has been consummated on or prior to the date of determination, the total amount of all assets of the Company and its Restricted Subsidiaries, determined on a consolidated basis in accordance with IFRS as of the most recent date for which financial statements are available, which may include internal financial statements prepared in good faith by the Company.
 
16

Consolidated Total Debt” means, as of any date of determination, the aggregate principal amount of all Debt of the Company and its Restricted Subsidiaries outstanding on such date and determined on a consolidated basis in accordance with IFRS consisting of the types of Debt set forth in clauses (i), (ii), (iii) and (v) of the definition of “Debt” and all guarantees by the Company or any of its Restricted Subsidiaries of Debt described in the foregoing clauses of others; provided that Consolidated Total Debt shall not include (i) Debt in respect of letters of credit, except to the extent of drawn and unreimbursed amounts thereunder, and (ii) Hedging Obligations.
 
Credit Agreement” means the Credit and Guaranty Agreement, dated as of [ ], 2018, between the Company (as borrower), certain Subsidiaries of the Company (as guarantors), certain lenders party thereto from time to time and GLAS (as administrative agent and collateral agent), as amended, restated, supplemented, waived, 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 any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Debt under such agreement or any successor or replacement agreement or agreements or increasing the amount loaned or issued thereunder or altering the maturity thereof.
 
Credit Facilities” means (i) the Credit Agreement and (ii) whether or not the agreement referred to in clause (i) remains outstanding, one or more debt facilities, commercial paper facilities or Debt Issuances with banks, investment banks, insurance companies, mutual funds, other institutional lenders, institutional investors or any of the foregoing providing for revolving credit loans, term loans, notes, bonds, indentures, debentures, receivables financing (including through the sale of receivables to such lenders, other financiers or to special purpose entities formed to borrow from (or sell such receivables to) such lenders or other financiers against such receivables), letters of credit, bankers’ acceptances, other borrowings or Debt Issuances, in each case, as amended, restated, modified, waived, renewed, extended, refunded, replaced or refinanced (in each case, without limitation as to amount), in whole or in part, from time to time (including through one or more Debt Issuances) and any agreements and related documents governing Debt or Obligations Incurred to refinance amounts then outstanding or permitted to be outstanding, whether or not with the original administrative agent, lenders, investment banks, insurance companies, mutual funds, other institutional lenders, institutional investors or any of the foregoing and whether provided under the original agreement, indenture or other documentation relating thereto.
 
Credit Facility Documents” means the collective reference to any Credit Facility, any notes issued pursuant thereto and the guarantees thereof, and the collateral documents relating thereto, as amended, supplemented, waived, restated, renewed, refunded, replaced, restructured, repaid, refinanced or otherwise modified, in whole or in part, from time to time.
 
17

Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in Section 13.01 or such other address as to which the Trustee may give notice to the Holders and the Company.
 
Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.
 
DBRS” means DBRS Limited, DBRS, Inc. or DBRS Ratings Limited, and any successors to their rating agency businesses.
 
Debt” means, with respect to any Person, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments to the extent the same would appear as a liability on a balance sheet of such Person prepared in accordance with IFRS, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property or assets purchased by such Person, (d) all obligations of such Person issued or assumed as the deferred purchase price of property or services, (e) all guarantees by such Person of Debt of other Persons described in the other clauses of this definition, (f) all Capital Lease Obligations of such Person, (g) all net payments that such Person would have to make in the event of an early termination, on the date Debt of such Person is being determined, in respect of outstanding Hedge Agreements, (h) the principal component of all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit (other than letters of credit issued in and respect of trade payables), (i) the principal component of all obligations of such Person in respect of bankers’ acceptances (other than bankers’ acceptances issued in respect of trade payables) and (j) the amount of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Redeemable Capital Interests (excluding accrued dividends that have not increased the liquidation preference of such Redeemable Capital Interests); provided that Debt shall not include (i) current trade liabilities and current intercompany liabilities (other than any refinancings, extensions, renewals or replacements thereof) incurred in the ordinary course of business, (ii) prepaid or deferred revenue arising in the ordinary course of business, (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 unperformed obligations of the seller of such asset, (iv) earn-out obligations (other than earn-out obligations existing on the Issue Date) until such obligations become a liability on the balance sheet of such Person in accordance with IFRS, (v) obligations in respect of letters of credit or bankers’ acceptances issued in respect of trade payables or (vi) interest, fees, premium, expenses and additional payments, if any. The Debt of any Person shall include the Debt of any partnership in which such Person is a general partner, other than to the extent that the instrument or agreement evidencing such Debt expressly limits the liability of such Person in respect thereof.
 
18

Debt Issuances” means, with respect to the Company or any Guarantor, one or more issuances after the Issue Date of Debt evidenced by notes, debentures, bonds or other similar securities or instruments.
 
Default” means any event that is, or after notice or passage of time or both would be, an Event of Default.
 
Definitive Note” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06, substantially in the form of Exhibit A hereto, except that such Note shall not bear the Global Notes Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.
 
Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03(b) 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.
 
Designated Non-cash Consideration” means the Fair Market Value of non-cash consideration received by the Company or any Restricted Subsidiary 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 Eligible 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 4.10.
 
DTC” means The Depository Trust Company.
 
Dutch Civil Code” means the Burgerlijk Wetboek of the Netherlands.
 
Dutch Domiciled Grantor” means any Grantor incorporated or otherwise organized under the laws of the European part of the Netherlands.
 
Dutch Pledge Agreement” means the Dutch law governed pledge agreement between each of [   ] as pledgor and the Collateral Agent as pledgee creating a right of pledge over the collateral stated therein, in each case, in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
19

Dutch Security Agreements” means the Dutch Pledge Agreement and the Dutch Share Pledge.
 
Dutch Share Pledge” means the Dutch law governed deed of pledge of shares between Amdipharm AG (a company incorporated in Switzerland with registered number CHE-109.710.396), as pledgor, the Collateral Agent as Pledgee, and Amdipharm B.V. (a company incorporated in the Netherlands with registered number 24341987) creating a right of pledge over all of the issued and outstanding shares in Amdipharm B.V., in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
Eligible Cash Equivalents” means, as at any date of determination, any of the following:
 
(i)            marketable securities (a) issued or directly and unconditionally guaranteed as to interest and principal by the United States, the Canadian or British Governments or (b) issued by any agency of the United States, Canada or the United Kingdom, in each case, the obligations of which are backed by the full faith and credit of the United States, Canada or the United Kingdom, as applicable, and in each case, maturing within one year after such date;
 
(ii)           marketable direct obligations issued by any state of the United States of America, province or territory of Canada or political subdivision of the United Kingdom or any political subdivision of any such state, province, territory or any public instrumentality thereof, in each case, maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Moody’s or at least R-1(low) from DBRS;
 
(iii)          commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Moody’s or at least R-1(low) from DBRS;
 
(iv)          certificates of deposit, U.S. or Canadian dollar-denominated or British pound sterling-denominated time deposits, overnight bank deposits or bankers’ acceptances (or, in the case of Subsidiaries organized outside the United States or Canada, the foreign equivalent) maturing within one year after such date and issued or accepted by any commercial bank organized under (x) the laws of the United States of America or any state thereof or the District of Columbia that (a) is at least “adequately capitalized” (as defined in the regulations of its primary federal banking regulator) and (b) has Tier 1 capital (as defined in such regulations) of not less than $250.0 million or (y) the laws of Canada or the United Kingdom, or in the case of Subsidiaries organized outside the United States or Canada, any local office of any commercial bank organized under the laws of the relevant jurisdiction or any political subdivision thereof, in either case, which has combined capital and surplus and undivided profits in excess of the U.S. dollar equivalent of $250.0 million;
 
20

(v)           repurchase obligations for underlying securities of the types described in clauses (i) through (iv) above; and
 
(vi)          shares of any money market mutual fund that (a) has substantially all of its assets invested continuously in the types of investments referred to in clauses (i) and (ii) above, (b) has net assets of not less than $250.0 million (or foreign currency equivalent), and (c) has one of the two highest ratings obtainable from either S&P or Moody’s or at least R-1(low) from DBRS; provided that, in the case of any Investment by the Company or any Subsidiary of the Company organized outside the United States or Canada, “Eligible Cash Equivalents” shall also include:
 
(x)           direct obligations of the sovereign nation (or any agency thereof) in which the Company or such Subsidiary is organized and is conducting business or in obligations fully and unconditionally guaranteed by such sovereign nation (or any agency thereof), in each case, maturing within one year after such date and having, at the time of the acquisition thereof, a rating equivalent to at least A-2 from S&P and at least P-2 from Moody’s;
 
(y)           investments of the type and maturity described in clauses (i) through (vi) above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies; and
 
(z)           shares of any money market mutual or similar fund that has substantially all its assets invested continuously in the types of investments otherwise satisfying the requirements of this definition (including this proviso).
 
English Account Charges” means the English law governed charge agreements to be executed by Mercury Pharma International Limited (a company incorporated in Ireland with registered number [   ]) and each other Grantor (if any) having one or more than one bank accounts located in England and Wales in respect of each such bank account, in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
English Debenture” means the English law governed security agreement to be executed by Concordia Investment Holdings (UK) Limited (a company incorporated in England with registered number [   ]), Mercury Pharma Group Limited (a company incorporated in England with registered number [   ]), Focus Pharma Holdings Limited (a company incorporated in England with registered number [   ]), Mercury Pharma (Generics) Ltd. (a company incorporated in England with registered number [   ]), Mercury Pharmaceuticals Limited (a company incorporated in England with registered number [   ]), Focus Pharmaceuticals Limited (a company incorporated in England with registered number [   ]), Amdipharm Mercury Holdco UK Limited (a company incorporated in England with registered number [   ]), Amdipharm Mercury UK Ltd. (a company incorporated in England with registered number [   ]), Concordia International RX (UK) Limited (a company incorporated in England with registered number [   ]), Primegen Limited (a company incorporated in England with registered number [   ]) and each other U.K. Domiciled Grantor (if any), in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
21

English Intellectual Property Charges” means the English law governed charge agreements to be executed by [   ] in respect of its Intellectual Property registered in England and Wales, in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
English Receivables Charges” means the English law governed charge agreements to be executed by [   ] (i) in respect of certain receivables due from a U.K. Domiciled Grantor, and (ii) in respect of certain receivables due under a contract governed by English law, in each case, to be executed by each Grantor entitled to such receivables, in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
English Security Agreements” means the English Account Charges,  the English Debenture, the English Intellectual Property Charges, the English Receivables Charges and the English Share Charges.
 
English Share Charges” means the English law governed share charge agreements to be executed in respect of the shares in Concordia Investment Holdings (UK) Limited (a company incorporated in England with registered number [   ]) and Amdipharm Mercury Holdco UK Limited (a company incorporated in England with registered number [   ]), in each case, in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
Exchange Act” means the Securities Exchange Act of 1934, as amended.
 
Excluded Property” has the meaning assigned to such term in the applicable Collateral Documents.
 
Existing Credit Agreement” means the existing Credit and Guaranty Agreement, dated as of October 21, 2015, by and among, the Company (as borrower), certain Subsidiaries of the Company party thereto (as guarantors), certain lenders party thereto and Goldman Sachs Bank USA, as administrative agent and collateral agent.
 
Expiration Date” has the meaning set forth in the definition of “Offer to Purchase.”
 
Euroclear” means Euroclear Bank S.A./N.V., as operator of Euroclear systems Clearance System or any successor securities clearing agency.
 
22

Fair Market Value” means, with respect to any asset or property, the price of which could be negotiated in an arm’s length transaction, for cash, between a willing seller and a willing buyer, as determined in good faith by the Company.
 
First Priority Credit Documents” means the Credit Agreement and each of the other agreements, documents and instruments providing for or evidencing any other First Priority Obligation under the Credit Facilities and any other document or instrument executed or delivered at any time in connection with any First Priority Obligation under the Credit Facilities (including any intercreditor or joinder agreement among holders of First Priority Obligations but excluding documents governing Hedging Obligations and the Notes), to the extent such are effective at the relevant time, as each may be amended, extended, renewed, restated, refunded, replaced, refinanced, supplemented, modified or otherwise changed from time to time.
 
First Priority Credit Obligations” means (i) any and all amounts payable under or in respect of any Credit Facility and the other Credit Facility Documents, as each may be amended, restated, supplemented, waived, replaced, restructured, repaid, refunded, refinanced or otherwise modified from time to time (including after termination of the Credit Agreement), including principal, premium (if any), interest (including interest and fees which, but for the filing of any petition in bankruptcy or for reorganization relating to the Company or any Guarantor would have accrued on any First Priority Credit Obligations, whether or not a claim for such interest and fees is allowed or allowable in such proceedings), fees, charges, expenses, reimbursement obligations, guarantees and all other amounts payable thereunder or in respect of, in each case, to the extent secured by a Permitted Lien on the Collateral ranking equally and ratably with the First Priority Notes Obligations pursuant to clause (1)  and clause (33) of the definition of “Permitted Liens” hereunder, and (ii) all other Obligations of the Company or any of its Restricted Subsidiaries in respect of Hedging Obligations or Obligations in respect of cash management services, in each case, owing to any Senior Secured Credit Facilities Secured Party.
 
First Priority Liens” means all Liens that secure the First Priority Notes Obligations.
 
First Priority Notes Obligations” means all Obligations of the Company and the Guarantors under this Indenture, the Notes and the Collateral Documents.
 
First Priority Notes Secured Parties” means the Trustee, the Collateral Agent and the Holders of the Notes.
 
First Priority Obligations” means (i) the First Priority Credit Obligations, (ii) the First Priority Notes Obligations and (iii) any and all amounts payable under or in respect of any Future First Lien Debt.
 
Future First Lien Debt” means any Debt of the Company and/or the Guarantors that is secured by a Lien on the Collateral ranking equally and ratably with the First Priority Notes Obligations as permitted by this Indenture; provided that (i) the trustee, agent or other authorized representative for the holders of such Debt (other than in the case of Additional Notes) shall execute a joinder to the Intercreditor Agreement and (ii) the Company shall designate such Debt as Additional First Lien Obligations under the Intercreditor Agreement.
 
23

GLAS” has the meaning set forth in the preamble hereto.
 
 “Global Notes” means, individually and collectively, each of the Global Notes, substantially in the form of Exhibit A hereto, issued in accordance with Sections 2.01, 2.06(b) or 2.06(d).
 
Global Notes Legend” means the legend set forth in Section 2.06(f)(i), which is required to be placed on all Global Notes issued under this Indenture.
 
Grantors” means the Company and the Guarantors.
 
Guarantee” means, as applied to any Debt of another Person, (i) a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner, of any part or all of such Debt, (ii) any direct or indirect obligation, contingent or otherwise, of a Person guaranteeing or having the effect of guaranteeing the Debt of any other Person in any manner and (iii) an agreement of a Person, direct or indirect, contingent or otherwise, the practical effect of which is to assure in any way the payment (or payment of damages in the event of non-payment) of all or any part of such Debt of another Person (and “Guaranteed” and “Guaranteeing” shall have meanings that correspond to the foregoing).
 
Guarantor” means each Restricted Subsidiary of the Company in existence on the Issue Date that provides a Note Guarantee on the Issue Date and any other Restricted Subsidiary of the Company that provides, or is required to provide, a Note Guarantee after the Issue Date in accordance with this Indenture; provided that, upon release or discharge of any Restricted Subsidiary of the Company from its Note Guarantee in accordance with this Indenture, such Restricted Subsidiary shall cease to be a Guarantor.
 
Hedge Agreement” means any agreement of the Company or any of the Restricted Subsidiaries with respect to any swap, forward, spot, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, foreign exchange, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions, in each case, not entered into for speculative purposes.  For the avoidance of doubt, Hedge Agreements shall not be deemed speculative or entered into for speculative purposes if any Hedge Agreement is intended in good faith, at inception of execution, (A) to hedge or manage the interest rate exposure associated with any Debt securities or Debt facilities of the Company or its Restricted Subsidiaries, (B) for foreign exchange or currency exchange management or (C) to hedge any exposure that the Company or its Restricted Subsidiaries may have to counterparties under other Hedge Agreements such that the combination of such Hedge Agreements is not speculative taken as a whole.
 
24

Hedging Obligations” of any Person means the obligations of such Person pursuant to any Hedge Agreement entered into in the ordinary course of such Person’s business.
 
Holder” means a Person in whose name a Note is registered on the Registrar’s books.
 
IFRS” means the International Financial Reporting Standards promulgated by the International Accounting Standards Board (or any successor board or agency), as adopted by the Chartered Professional Accountants of Canada and in effect from time to time.
 
Immediate Family Members” means with respect to any individual, such individual’s child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, qualified domestic partner, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law (including adoptive relationships), 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, with respect to any Debt or other obligation of any Person, to create, issue, incur (by conversion, exchange or otherwise), assume, Guarantee or otherwise become liable in respect of such Debt or other obligation or the recording, as required pursuant to IFRS or otherwise, of any such Debt or other obligation on the balance sheet of such Person; provided, however, that a change in IFRS or an interpretation thereunder that results in an obligation of such Person that exists at such time becoming Debt shall not be deemed an Incurrence of such Debt.  Debt otherwise Incurred by a Person before it becomes a Subsidiary of the Company shall be deemed to be Incurred at the time at which such Person becomes a Subsidiary of the Company.  “Incurrence,” “Incurred,” “Incurrable” and “Incurring” shall have meanings that correspond to the foregoing.  A Guarantee by the Company or a Restricted Subsidiary of Debt Incurred by the Company or a Restricted Subsidiary, as applicable, shall not be a separate Incurrence of Debt.  In addition, the following shall be deemed not to be a separate Incurrence of Debt:
 
(1)           amortization of Debt discount or accretion of principal with respect to a non-interest bearing or other discount security;
 
(2)           the payment of regularly scheduled interest in the form of additional Debt of the same instrument or the payment of regularly scheduled dividends on Capital Interests in the form of additional Capital Interests of the same class and with the same terms;
 
25

(3)           the obligation to pay a premium in respect of Debt arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Debt; and
 
(4)           unrealized losses or charges in respect of Hedging Obligations and Swap Contracts, in each case, not entered into for speculative purposes.
 
Indenture” means this Indenture, as amended, supplemented or otherwise modified from time to time.
 
Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.
 
Initial Notes” has the meaning set forth in the recitals hereto.
 
Intellectual Property” has the meaning set forth in each Security Agreement, as applicable.
 
Intercreditor Agreement” means, collectively, the intercreditor agreement among GLAS, as administrative  agent and collateral agent under the Credit Agreement, the Collateral Agent and each additional agent from time to time party thereto, as it may be amended from time to time in accordance with this Indenture, as well as any customary intercreditor agreement entered into by the Collateral Agent pursuant to this Indenture, each as amended, restated, modified, supplemented or replaced from time to time in accordance with this Indenture or the terms of such intercreditor agreements.
 
Interest Payment Date” means [   ] and [   ] of each year, commencing on [   ], 2018, to the stated maturity of the Notes.
 
Investment” by any Person means any direct or indirect loan, advance (or other extension of credit) or capital contribution to (by means of any transfer of cash or other property or assets to another Person or any other payments for property or services for the account or use of another Person) another Person, including, without limitation, the following:
 
(i)            the purchase or acquisition of any Capital Interest or other evidence of beneficial ownership in another Person;
 
(ii)           the purchase, acquisition or Guarantee of the Debt of another Person; and
 
(iii)          the purchase or acquisition of the business or assets of another Person substantially as an entirety, but shall exclude:
 
(a)           accounts receivable and other extensions of trade credit in accordance with such Person’s customary practices;
 
26

(b)           the acquisition of property and assets from suppliers and other vendors in the ordinary course of business; and
 
(c)           prepaid expenses and workers’ compensation, utility, lease (including related to aircraft) and similar deposits, in the ordinary course of business.
 
Investment Grade Rating” designates a rating of BBB or higher from S&P or Baa3 or higher from Moody’s or the equivalent of such ratings from S&P or Moody’s.  In the event that the Company shall select any other Rating Agency as provided under the definition of the term “Rating Agencies,” the equivalent of such ratings from such Rating Agency shall be used.
 
Irish Debenture” means the Irish law governed security agreement to be executed by executed by, among others, Mercury Pharmaceuticals (Ireland) Limited (a company incorporated in Ireland with registered number 325288), Mercury Pharma International Limited (a company incorporated in Ireland with registered number 20440), Amdipharm Limited (a company incorporated in Ireland with registered number 364596, each other Irish Domiciled Grantor (if any) and the Collateral Agent, in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
Irish Domiciled Grantor” means any Grantor incorporated or otherwise organized under the laws of Ireland.
 
Irish Intellectual Property Charges” means the Irish law governed charge agreements to be executed by, among others, [   ] in respect of its Intellectual Property registered in Ireland and the Collateral Agent, in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
Irish Security Agreements” means the Irish Debenture, the Irish Intellectual Property Charges and the Irish Share Charges.
 
Irish Share Charges” means the Irish law governed security agreements to be executed in respect of the shares in Amdipharm Limited (a company incorporated in Ireland with registered number 364596) and Mercury Pharmaceuticals (Ireland) Limited (a company incorporated in Ireland with registered number 325288), in each case, in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
Issue Date” means [          ], 2018.
 
Jersey All Asset Security Agreements” means the Jersey law governed security interest agreements to be executed by each of Concordia Financing (Jersey) Limited (a company incorporated in Jersey with registered number 119696), Concordia Investments (Jersey) Limited (a company incorporated in Jersey with registered number 119697), Amdipharm Mercury International Limited (a company incorporated in Jersey with registered number 88638), Concordia Holdings (Jersey) Limited (a company incorporated in Jersey with registered number 119695) and each other Jersey Domiciled Grantor (if any), in each case, in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
27

Jersey Domiciled Grantor” means any Grantor incorporated or otherwise organized under the laws of Jersey.
 
Jersey Receivables Security Agreements” means the Jersey security interest agreements (i) in respect of certain receivables due from a Jersey Domiciled Grantor, and (ii) in respect of certain receivables due under a contract governed by Jersey law, in each case, to be executed by each Grantor entitled to such receivables, in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
Jersey Security Agreements” means the Jersey All Asset Security Agreements, the Jersey Receivables Security Agreements and the Jersey Share Security Agreements.
 
Jersey Share Receivables Security Agreements” means the Jersey security interest agreements executed by the Company in respect of, inter alia, the issued shares in and debt owed by Concordia Financing (Jersey) Limited (a company incorporated in Jersey with registered number 119696) and Concordia Investments (Jersey) Limited (a company incorporated in Jersey with registered number 119697), in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
Junior Financing” means (i) Subordinated Obligations, (ii) senior unsecured Debt for borrowed money of the Company and/or any Guarantor (other than Debt contemplated by clauses (5), (8), (9) and (10) through (19) of the definition of “Permitted Debt” hereunder) and (iii) Junior Priority Debt.
 
Junior Priority Debt” means other Debt of the Company and/or the Guarantors that is secured by Liens on the Collateral ranking junior in priority to the Liens securing the Notes as permitted by this Indenture and is designated by the Company as Junior Priority Debt.
 
Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, hypothecation, pledge, encumbrance, charge, assignment by way of security or security interest in or on such asset or any other agreement or arrangement having a similar effect, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities (other than securities representing an interest in a joint venture that is not a subsidiary), any purchase option, call or similar right of a third party with respect to such securities; provided that in no event shall an operating lease (including aircraft leases) or an agreement to sell be deemed to constitute a Lien.
 
28

Limited Condition Transaction” means any Permitted Acquisition or similar permitted Investment, the consummation of which is not conditioned on the availability of, or on obtaining, third party financing.
 
Luxembourg” means the Grand Duchy of Luxembourg.
 
Luxembourg Domiciled Grantor” means any Grantor incorporated or otherwise organized under the laws of Luxembourg.
 
Luxembourg Intellectual Property Security Agreements” means the Luxembourg law governed charge agreements to be executed by [   ] in respect of its Intellectual Property registered in Luxembourg, in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
Luxembourg Receivables Security Agreements” means the Luxembourg receivables pledge agreement to be executed by each Luxembourg Domiciled Grantor, in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
Luxembourg Security Agreements” means the Luxembourg Intellectual Property Security Agreement, the Luxembourg Receivables Security Agreements and the Luxembourg Share Security Agreements.
 
Luxembourg Share Security Agreements” means the Luxembourg share pledge agreements (i) executed by the Company in respect of the issued shares in each of Concordia Laboratories Inc. (a société à responsabilité limitée incorporated in Luxembourg, having its registered office at 8-10, avenue de la Gare, L-1610 Luxembourg, and registered with the Registre de Commerce et des Sociétés, Luxembourg under number B200376), and (ii) Concordia Investments (Jersey) Limited in respect of the issued shares of Amdipharm Holdings (a société à responsabilité limitée incorporated in Luxembourg, having its registered office at 46A, avenue J.F. Kennedy, L-1855 Luxembourg, and registered with the Registre de Commerce et des Sociétés, Luxembourg under number B105086), in each case, in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
29

Material Disposition” means Asset Sales (including a series of Asset Sales) in excess of $100.0 million consummated by the Company or any Restricted Subsidiary.
 
Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
 
Net Cash Proceeds” means, with respect to Asset Sales or Casualty Events of any Person, cash and Eligible Cash Equivalents received, net of:
 
(i)            all reasonable out-of-pocket costs and expenses of such Person incurred in connection with such a sale, including, without limitation, all legal, accounting, title and recording tax expenses, commissions and other fees and expenses incurred and all federal, state, foreign and local taxes arising in connection with such an Asset Sale or Casualty Event that are paid or required to be accrued as a liability under IFRS by such Person;
 
(ii)           all payments made by such Person on any Debt (other than any First Priority Obligations) that is secured by such properties or other assets in accordance with the terms of any Lien upon or with respect to such properties or other assets or that must, by the terms of such Lien or such Debt or in order to obtain a necessary consent to such transaction or by applicable law, be repaid to any other Person (other than the Company or a Restricted Subsidiary thereof) in connection with such Asset Sale or Casualty Event; and
 
(iii)          all contractually required distributions and other payments made to minority interest holders in Restricted Subsidiaries of such Person as a result of such transaction;
 
provided, however, that:
 
(a)           in the event that any consideration for an Asset Sale or Casualty Event (which would otherwise constitute Net Cash Proceeds) is required by (I) contract to be held in escrow pending determination of whether a purchase price adjustment will be made or (II) IFRS to be reserved against other liabilities in connection with such Asset Sale or Casualty Event, such consideration (or any portion thereof) shall become Net Cash Proceeds only at such time as it is released to such Person from escrow or otherwise; and
 
(b)           any non-cash consideration received in connection with any transaction, which is subsequently converted to cash, shall become Net Cash Proceeds only at such time as it is so converted.
 
Non-Guarantor Limitation” has the meaning set forth in the definition of “Permitted Acquisition.”
 
Non-Guarantor Subsidiary” means any Subsidiary of the Company that does not Guarantee the Notes.
 
30

Non-U.S. Person” means a Person who is not a U.S. Person.
 
North American Assets” means the Company’s North American product portfolio consisting of branded products (which, for the avoidance of doubt, shall not include (i) Pinnacle, (ii) any assets owned by Pinnacle or its subsidiaries or (iii) the Photofrin intellectual property of Pinnacle owned by Concordia Labs Inc. or Concordia Laboratories Inc. S.a r.l.) and authorized generic contracts.
 
Note Guarantee” means the Guarantee of the Obligations of the Company given by each Guarantor of the Notes in accordance with Article 10.
 
Notes” means the Initial Notes and any note authenticated and delivered under this Indenture.  For all purposes of this Indenture, the term “Notes” shall also include any Additional Notes that may be issued under a supplemental indenture and notes to be issued or authenticated upon transfer, replacement or exchange of Notes.
 
Notes Documents” means the Notes, the Collateral Documents, the Intercreditor Agreement(s) and this Indenture.
 
Obligations” means, with respect to any Debt, any principal, premium, interest (including any Post-Petition Interest and fees and expenses 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 Post-Petition Interest, fees and expenses are an allowed or allowable claim under applicable state, federal or foreign law), penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and banker’s acceptances), damages and other liabilities, and Guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing such Debt.
 
Offer” has the meaning set forth in the definition of “Offer to Purchase.”
 
Offer to Purchase” means a written offer (the “Offer”) sent by the Company electronically or by first class mail, postage prepaid, to each Holder at his address appearing in the security register on the date of the Offer, offering to purchase up to the aggregate principal amount of Notes set forth in such Offer at the purchase price set forth in such Offer (as determined pursuant to this Indenture).  Unless otherwise required by applicable law, the Offer shall specify an expiration date (the “Expiration Date”) of the Offer to Purchase which shall be, subject to any contrary requirements of applicable law, not less than 15 days nor more than 60 days after the date of mailing of such Offer and a settlement date (the “Purchase Date”) for purchase of Notes within five Business Days after the Expiration Date.  The Company shall notify the Trustee at least 15 days (or such shorter period as is acceptable to the Trustee) prior to the mailing of the Offer of the Company’s obligation to make an Offer to Purchase, and the Offer shall be mailed by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company.  The Offer shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Offer to Purchase.  The Offer shall also state:
 
31

(1)           the Section of this Indenture pursuant to which the Offer to Purchase is being made;
 
(2)           the Expiration Date and the Purchase Date;
 
(3)           the aggregate principal amount of the outstanding Notes offered to be purchased pursuant to the Offer to Purchase (including, if less than all of the then outstanding Notes, the manner by which such amount has been determined pursuant to the covenants of this Indenture requiring the Offer to Purchase);
 
(4)           the purchase price to be paid by the Company for each Note accepted for payment (as specified pursuant to this Indenture) (the “Purchase Price”);
 
(5)           that the Holder may tender all or any portion of the Notes registered in the name of such Holder and that any portion of a Note tendered must be tendered in a minimum amount of $2,000 and integral multiples of $1,000 in excess thereof;
 
(6)           the place or places where Notes are to be surrendered for tender pursuant to the Offer to Purchase, if applicable;
 
(7)           that, subject, in the case of an Offer to Purchase relating to a Change of Control that is conditioned upon the occurrence thereof to the satisfaction of such condition precedent as specified in such notice, unless the Company defaults in making such purchase, any Note accepted for purchase pursuant to the Offer to Purchase will cease to accrue interest on and after the Purchase Date, but that any Note not tendered or tendered but not purchased by the Company pursuant to the Offer to Purchase will continue to accrue interest at the same rate;
 
(8)           that, subject, in the case of an Offer to Purchase relating to a Change of Control that is conditioned upon the occurrence thereof to the satisfaction of such condition precedent as specified in such notice, on the Purchase Date, the Purchase Price will become due and payable upon each Note accepted for payment pursuant to the Offer to Purchase;
 
(9)           that each Holder electing to tender a Note pursuant to the Offer to Purchase will be required to surrender such Note or cause such Note to be surrendered at the place or places set forth in the Offer prior to the close of business on the Expiration Date (such Note being, if the Company or the Trustee so requires, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing);
 
(10)         that Holders will be entitled to withdraw all or any portion of Notes tendered if the Company (or its paying agent) receives, not later than the close of business on the Expiration Date, a facsimile transmission or letter setting forth the name of the Holder, the aggregate principal amount of the Notes the Holder tendered, the certificate number of the Note the Holder tendered and a statement that such Holder is withdrawing all or a portion of his tender;
 
32

(11)         that, if less than all of such Holder’s Notes are tendered for purchase, such Holder will be issued new Notes, such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered and the unpurchased portion of the Notes must be equal to $2,000 or an integral multiple of $1,000 in excess thereof; and
 
(12)         if applicable, that, in the case of any Holder whose Note is purchased only in part, the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Note without service charge, a new Note or Notes, of any authorized denomination as requested by such Holder, in the aggregate principal amount equal to and in exchange for the unpurchased portion of the aggregate principal amount of the Notes so tendered.
 
Officer’s Certificate” means a certificate signed by the principal executive officer, the principal financial officer, the principal accounting officer, the vice-president of finance or the controller of the Company or such Guarantor, as applicable, or, with respect to any Guarantor, any other individual designated by the Board of Directors or member of the Company or such Guarantor, as applicable, such designation to be certified in such Officer’s Certificate.
 
OID Legend” means the legend set forth in Section 2.06(f)(iii) to be placed on all Notes issued under this Indenture that have more than a de minimis amount of original issue discount for U.S. federal income tax purposes.
 
Opinion of Counsel” means a written opinion delivered to the Trustee from legal counsel who is reasonably acceptable to the Trustee.  The counsel may be an employee of or counsel to the Company.
 
Parent Entity” means any direct or indirect parent of the Company.
 
Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).
 
Permitted Acquisition” means (x) an Investment by the Company or any Restricted Subsidiary in any other Person pursuant to which such Person shall become a Restricted Subsidiary, or shall be merged or amalgamated with or into the Company or any Restricted Subsidiary, or (y) the acquisition by the Company or any Restricted Subsidiary (pursuant to a merger, amalgamation, consolidation, arrangement or otherwise) of the assets of any Person which constitute all or substantially all of the assets of such Person, any division or line of business of such Person, operations, franchisee rights or any other properties or assets of such Person other than in the ordinary course of business (or any subsequent Investment in any Person or acquisition of assets, division or line of business, operations, franchisee rights or other property previously acquired in a Permitted Acquisition), if immediately after giving effect thereto:
 
33

(1)           no Event of Default shall have occurred and be continuing or would result therefrom;
 
(2)           before and after giving effect to such acquisition on a Pro Forma Basis the Total Net Leverage Ratio will not be greater than (x) the Total Net Leverage Ratio immediately prior to giving effect to such acquisition or (y) 6.50:1.00;
 
(3)           all transactions related thereto shall be consummated in all material respects in accordance with applicable laws;
 
(4)           the Company or any Restricted Subsidiary making such acquisition and any Person acquired in such acquisition comply with Section 4.15;
 
(5)           a substantial portion of the assets or property acquired (or a substantial portion of the assets or property of the Person acquired) thereby shall constitute Related Business Assets; and
 
(6)           the aggregate consideration funded by the Company or any Guarantor for any and all such acquisitions of any Person that is not and will not become a Guarantor concurrently with or reasonably promptly following such acquisition, when aggregated with Investments made pursuant to clause (5) of the definition of “Permitted Investments” and Debt incurred by Restricted Subsidiaries that are not Guarantors owing to the Company or any Guarantor pursuant to clause (5)(ii) of the definition of “Permitted Debt”, shall not exceed the greater of (i) $58.0 million and (ii) 2.5% of Consolidated Total Assets (the “Non-Guarantor Limitation”);
 
provided that if greater than 80% of the assets or Consolidated Adjusted EBITDA being acquired in any Permitted Acquisition is generated by entities that will become Guarantors concurrently with or reasonably promptly following such Permitted Acquisition, assets being acquired by the Company or any Guarantor or any combination of the foregoing, such Investment shall not reduce the Non-Guarantor Limitation.
 
Permitted Business” means any business similar in nature to any business conducted by the Company and the Restricted Subsidiaries on the Issue Date and any business reasonably ancillary, incidental, complementary or related to, or a reasonable extension, development or expansion of, the business conducted by the Company and the Restricted Subsidiaries on the Issue Date, in each case, as determined in good faith by the Company.
 
Permitted Debt” means:
 
(1)           Debt Incurred by the Company or any Restricted Subsidiary (including under any Credit Facility) in an aggregate principal amount at any one time outstanding not to exceed the sum of (x) $[    ] million plus (y) (i) an additional aggregate principal amount of Debt that is secured by a Lien on Collateral that is pari passu with or senior to the Lien on Collateral securing the Notes so long as the Senior Secured Leverage Ratio, determined on a Pro Forma Basis, shall not exceed 5.00 to 1.00 or (ii) an additional aggregate principal amount of Debt that is secured by a Lien on Collateral that is junior to the Lien on Collateral securing the Notes or is secured by a Lien on assets other than the Collateral, the Total Net Leverage Ratio, determined on a Pro Forma Basis, shall not exceed 6.50 to 1.00; provided that, prior to January 1, 2019, Debt Incurred pursuant to this clause (y) may only be Incurred to finance Investments permitted by clause (6) of the definition of “Permitted Investments”;
 
34

(2)           Debt under the Notes issued on the Issue Date and contribution, indemnification and reimbursement obligations owed by the Company or any Guarantor to any of the other of them in respect of amounts paid or payable on such Notes;
 
(3)           Guarantees of the Notes;
 
(4)           Debt of the Company or any Restricted Subsidiary outstanding on the Issue Date (other than Debt described in clause (1), (2) or (3) of this definition);
 
(5)           Debt of the Company to any Restricted Subsidiary and of any Restricted Subsidiary to the Company or any other Restricted Subsidiary; provided that, (i) any intercompany Debt (including other Investments constituting Debt) owing, and Guarantees provided, by the Company or any Guarantor to a Restricted Subsidiary that is not a Guarantor and will not become a Guarantor in connection with the Incurrence of such Debt (or related Investment) shall be subordinated to the First Priority Notes Obligations, (ii) the aggregate principal amount of such Debt Incurred pursuant to this clause (5) by a Restricted Subsidiary that is not a Guarantor owing to the Company or any Guarantor shall not exceed in the aggregate the greater of (x) $58.0 million and (y) 2.5% of Consolidated Total Assets; and (iii) to the extent the aggregate principal amount of any such Debt is in excess of $25.0 million and such Debt is Incurred by a Restricted Subsidiary that is not organized under the laws of Canada or the United States, such Debt is Incurred or issued subject to an Intercreditor Agreement;
 
(6)           Guarantees Incurred by the Company of Debt of a Restricted Subsidiary otherwise permitted to be Incurred under this Indenture; provided that such Guarantees are subordinated to the Notes to the same extent as the Debt being Guaranteed if such Debt is a Subordinated Obligation;
 
(7)           Guarantees by any Restricted Subsidiary of Debt of the Company or any Restricted Subsidiary, including Guarantees by any Restricted Subsidiary of Debt under the Credit Facilities otherwise permitted to be Incurred under this Indenture; provided that such Guarantees are subordinated to the Notes to the same extent as the Debt being Guaranteed if such Debt is a Subordinated Obligation;
 
35

(8)           Debt (including in respect of letters of credit, bank guarantees or similar instruments) Incurred by the Company or any Restricted Subsidiary in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Debt with respect to reimbursement type obligations regarding workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance and indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, letters of credit for operating purposes and completion Guarantees provided or Incurred (including Guarantees thereof) by the Company or a Restricted Subsidiary in the ordinary course of business; provided that, upon the Incurrence of Debt with respect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than sixty (60) days following such Incurrence;
 
(9)           Debt pursuant to (i) Swap Contracts and Hedging Obligations, in each case, not entered into for speculative purposes and (ii) Obligations in respect of cash management services owing to any Senior Secured Credit Facilities Secured Party;
 
(10)         Debt of the Company or any Restricted Subsidiary pursuant to Capital Lease Obligations and Purchase Money Debt (including, for the avoidance of doubt, any security deposits in respect of corporate aircraft) Incurred to finance the acquisition, installations, repairs, improvement and removal of fixed or capital assets and any Refinancing Debt that Refinances any Debt Incurred pursuant to this clause (10), including any additional Debt Incurred to pay premiums, fees and expense in connection therewith; provided that the aggregate principal amount of such Debt outstanding at any time may not exceed the greater of (i) $29.0 million and (ii) 1.25% of Consolidated Total Assets; provided, further, that Capital Lease Obligations Incurred by the Company or any Restricted Subsidiary pursuant to this clause (10) in connection with a Sale and Leaseback Transaction shall not be subject to the foregoing limitation so long as the proceeds of such Sale and Leaseback Transaction are used by the Company or such Restricted Subsidiary to permanently repay outstanding Debt of the Company and its Restricted Subsidiaries;
 
(11)         Debt arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, contribution, earnout, adjustment of purchase price or similar obligations, in each case, Incurred or assumed in connection with any Permitted Acquisition or other acquisition or disposition of any business or assets or any Capital Interests of a Restricted Subsidiary otherwise permitted under this Indenture, other than Guarantees of Debt for borrowed money Incurred for the purpose of financing such Permitted Acquisition or other acquisition of such business, assets or Capital Interests;
 
(12)         Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds or other cash management treasury services in the ordinary course of business;
 
36

(13)         Debt 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;
 
(14)         Debt of the Company and the Restricted Subsidiaries Incurred under overdraft facilities (including, but not limited to, intraday and purchasing card services) extended by one or more financial institutions and established for the Company’s and the Restricted Subsidiaries’ ordinary course of operations;
 
(15)         Debt in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and letters of credit (other than obligations in respect of other Debt) in the ordinary course of business;
 
(16)         unsecured Debt in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services incurred in the ordinary course of business;
 
(17)         Debt (i) representing deferred compensation to employees, directors or consultants incurred in the ordinary course of business or (ii) consisting of obligations under deferred compensation or other similar arrangements incurred by such Person in connection with Permitted Acquisitions or any Investment permitted hereunder;
 
(18)         Debt consisting of promissory notes issued to current or former officers, directors and employees, or their respective estates or family members, in each case, to finance the purchase or redemption of Capital Interests of the Company or any Parent Entity permitted under this Indenture;
 
(19)         Guarantees of any lease permitted under this Indenture of real property entered into by the Company or any Restricted Subsidiary;
 
(20)         Debt in an aggregate amount equal to 100% of (i) the net cash proceeds received by the Company from the issuance or sale of its Capital Interests (other than Redeemable Capital Interests) after the Issue Date or by any Parent Entity from the issuance and sale of its Capital Interests (other than Redeemable Capital Interests) and contributed to the Company, in each case, after the Issue Date and (ii) any cash consisting of a capital contribution received by any Parent Entity from the holders of its Capital Interests and contributed to the Company, in each case, excluding any Capital Interests issued or capital contribution made on or prior to the Issue Date; provided, however, (i) any such net cash proceeds that are so received or contributed shall be excluded for purposes of making Restricted Payments under Section 4.07(a) to the extent the Company and its Restricted Subsidiaries Incur Debt in reliance thereon and (ii) any net cash proceeds that are so received or contributed shall be excluded for purposes of Incurring Debt pursuant to this clause to the extent the Company or any of its Restricted Subsidiaries makes a Restricted Payment under Section 4.07(a) in reliance thereon;
 
37

(21)         (i) Debt of the Company or any of its Restricted Subsidiaries Incurred or issued to finance a Permitted Acquisition, provided, however, that after giving effect to such Permitted Acquisition and the Incurrence of such Debt, (x) if such Debt is secured by Lien on Collateral that is pari passu with or senior to the Lien on Collateral securing the Notes, the Senior Secured Net Leverage Ratio of the Company and its Restricted Subsidiaries determined on a Pro Forma Basis would either: (A) not exceed 5.00:1.00 or (B) be equal to or less than such ratio immediately prior to such acquisition, merger, amalgamation, arrangement or consolidation, and (y) if such Debt is secured by a Lien on Collateral that is junior to the Lien on Collateral securing the Notes, is secured by a Lien on assets other than the Collateral or is unsecured, the Total Net Leverage Ratio of the Company and its Restricted Subsidiaries determined on a Pro Forma Basis would either: (A) not exceed 6.50:1.00 or (B) be equal to or less than such ratio immediately prior to such acquisition, merger, amalgamation, arrangement or consolidation; and
 
(ii) Debt assumed by the Company or any of its Restricted Subsidiaries in connection with Permitted Acquisitions; provided, however, that after giving effect to such Permitted Acquisition and the assumption of such Debt, the Total Net Leverage Ratio of the Company and its Restricted Subsidiaries determined on a Pro Forma Basis would either: (A) not exceed 6.50:1.00 or (B) be equal to or less than such ratio immediately prior to such Permitted Acquisition and the assumption of such Debt.
 
(22)         Debt of any Restricted Subsidiary that is not a Guarantor under any working capital or similar line of credit in an aggregate outstanding principal amount not to exceed $10.0 million;
 
(23)         Debt of the Company and the Guarantors under a Revolving Credit Facility, in an aggregate principal amount of up to the greater of (x) $150.0 million at any time outstanding or (y) 50% of Consolidated Adjusted EBITDA (on a Pro Forma basis for after giving effect to any acquisitions), with a total outstanding principal amount not to exceed $250.0 million, the proceeds of which shall not be used to fund any acquisitions, joint ventures, minority investments or investments in Unrestricted Subsidiaries;
 
(24)         Debt of the Company or any Restricted Subsidiary not otherwise permitted pursuant to this definition, in an aggregate principal amount not to exceed the greater of (x) $40.5 million and (y) 1.75% of Consolidated Total Assets at any time outstanding; provided that, to the extent the aggregate principal amount of any such Debt is in excess of $25.0 million and such Debt is incurred by a Restricted Subsidiary that is not organized under the laws of Canada or the United States, such Debt is incurred or issued subject to an Intercreditor Agreement;
 
(25)         Refinancing Debt Incurred at any time in respect of Debt Incurred pursuant to Section 4.09(a) or pursuant to clauses (1)(y), (2), (3), (4), (20), (21) or this clause (25) of this definition;
 
(26)         Debt which (A) is contemplated by clause (x)(B) of the definition of “Debt” hereunder and (B) could be secured with a Lien pursuant to clause (17) of the definition of “Permitted Liens” hereunder;
 
38

(27)         Debt arising pursuant to appeal bonds or similar instruments required in connection with judgments that do not result in a Default or Event of Default;
 
(28)         Debt arising from any liability pursuant to or in connection with a declaration of joint and several liability as referred to in section 2:403 Dutch Civil Code (and any residual liability under such declaration, as referred to in section 2:404 (2) of the Dutch Civil Code); and
 
(29)         Debt arising from any joint and several liability or any netting or set off arrangement arising in each case by operation of law as a result of the existence or establishment of a fiscal unity (fiscale eenheid) for Dutch corporate income tax or value added tax purposes or any analogous arrangement in any other jurisdiction of which the Company or a Restricted Subsidiary is or becomes a member.
 
provided that any such Debt Incurred by Restricted Subsidiaries that are not Guarantors pursuant to clauses (1), (20), (21)(i) and (24) above and Section 4.09(a), shall not exceed an aggregate principal amount outstanding equal to the greater of (i) $58 million and (ii) 2.5% of Consolidated Total Assets;
 
Permitted Holders” means (a) one or more of the Plan Sponsors and (b) any Person or entity with which one or more of the Plan Sponsors and management form a “group” (within the meaning of the Securities Act) so long as, in the case of this clause (b), the Plan Sponsors beneficially own more than 50% of the aggregate voting power of such group.
 
Permitted Investments” means:
 
(1)           Investments in existence on the Issue Date;
 
(2)           Investments required pursuant to any agreement or obligation of the Company or a Restricted Subsidiary, in effect on the Issue Date, to make such Investments;
 
(3)           Investments in cash and Eligible Cash Equivalents;
 
(4)           Investments in property and other assets, owned or used by the Company or any Restricted Subsidiary in the ordinary course of business;
 
(5)           Investments by the Company or any of its Restricted Subsidiaries in the Company or any Restricted Subsidiary; provided that the aggregate principal amount of such Investments (including any intercompany Debt and other Investments) made pursuant to this clause (5) by the Company or any Guarantor in Restricted Subsidiaries that are not Guarantors and will not become Guarantors in connection with the Incurrence of such Investment, when aggregated with Debt Incurred by Restricted Subsidiaries that are not Guarantors owing to the Company or any Guarantor pursuant to clause (5)(ii) of the definition of “Permitted Debt” and acquisitions of Persons that do not become Guarantors pursuant to clause (6) of this definition, shall not exceed the greater of (x) $58 million and (y) 2.5% of Consolidated Total Assets;
 
39

(6)           Investments constituting Permitted Acquisitions;
 
(7)           Swap Contracts and Hedging Obligations, in each case, not entered into for speculative purposes;
 
(8)           receivables owing to the Company or any of its Subsidiaries and advances to suppliers, in each case, if created, acquired or made in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;
 
(9)           Investments received in settlement of obligations owed to the Company or any Restricted Subsidiary and as a result of bankruptcy or insolvency proceedings or upon the foreclosure or enforcement of any Lien in favor of the Company or any Restricted Subsidiary;
 
(10)         Investments by the Company or any Restricted Subsidiary not otherwise permitted under this definition, in an aggregate amount not to exceed the greater of (x) $58 million and (y) 2.5% of Consolidated Total Assets at any one time outstanding;
 
(11)         loans and advances to officers, directors, employees or consultants of the Company or any Restricted Subsidiary in an amount not to exceed $5 million in the aggregate at any one time outstanding;
 
(12)         Investments the payment for which consists solely of Capital Interests (excluding Redeemable Capital Interests) of the Company;
 
(13)         any Investment in any Person to the extent such Investment represents the non-cash portion of the consideration received in connection with an Asset Sale consummated in compliance with Section 4.10 or any other disposition of Property not constituting an Asset Sale;
 
(14)         guarantees of operating leases or of other obligations that do not constitute Debt, in each case, entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
 
(15)         payroll, entertainment, travel, moving, relocation and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
 
(16)         Guarantees by the Company or any Restricted Subsidiary of Debt otherwise permitted by Section 4.09;
 
(17)         any Investment acquired by the Company or any of its Restricted Subsidiaries:
 
(i)           in exchange for any other Investment or accounts receivable held by the Company or any Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the Company of such other Investment or accounts receivable;
 
40

(ii)          in satisfaction of judgments against other Persons;
 
(iii)         as a result of a foreclosure by the Company or any of its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default; or
 
(iv)         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;
 
(18)         any Investments consisting of purchases and acquisitions of inventory, supplies, material or equipment or other similar assets in the ordinary course of business, or the licensing or contribution of Intellectual Property or rights;
 
(19)         advances, loans or extensions of trade credit or prepayments of expenses or loans or advances made to distributors, in each case in the ordinary course of business by the Company or any of its Restricted Subsidiaries;
 
(20)         repurchases of the Notes and Obligations under the Credit Facilities;
 
(21)         (a) Investments consisting of the purchase price paid for and reasonable transaction costs related to acquisitions by the Company or any Restricted Subsidiary of all or substantially all of the assets or Capital Interests of a Person engaged in a Permitted Business; (b) Investments of any Person existing at the time such Person becomes a Restricted Subsidiary of the Company or consolidates, merges or amalgamates with the Company or any of its Restricted Subsidiaries so long as such Investments were not made in contemplation of such Person becoming a Restricted Subsidiary or of such consolidation, merger or amalgamation and (c) Investments consisting of any acquisition of, or licenses for, products or assets used or useful in a Permitted Business;
 
(22)         Investments in a Permitted Joint Venture, when taken together with all other Investments made pursuant to this clause (22) that are at the time outstanding (and not otherwise converted or applied to another clause of this definition of “Permitted Investments”), not to exceed $25 million at any one time outstanding;
 
(23)         Investments resulting from pledges and deposits referred to in clauses (6), (9), (15), (18), (19), (22), (24) and (38) of the definition of “Permitted Liens”;
 
(24)         actions permitted pursuant to the Transactions;
 
41

(25)         Investments in the ordinary course of business consisting of UCC Article 3 endorsements for collection or deposit and UCC Article 4 customary trade arrangements with customers and foreign law equivalent interests;
 
(26)         advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Company or any Restricted Subsidiary;
 
(27)         acquisitions by the Company or any of the Guarantors of Investments evidencing obligations owed by one or more officers or other employees of the Company, such Guarantor or their respective Subsidiaries in connection with such officer’s or employee’s acquisition of Capital Interests of the Company, so long as no cash is actually advanced in connection with the acquisition of any such obligations;
 
(28)         Investments consisting of the licensing, sublicensing, covenants not to sue, releases or other rights under Intellectual Property (including in connection with distribution, license and supply agreements) in the ordinary course of business or in the reasonable business judgment of the Company or the Restricted Subsidiaries; and
 
(29)         Investments consisting of purchases and acquisitions of Intellectual Property in the ordinary course of business or in the reasonable business judgment of the Company or the Restricted Subsidiaries.
 
Notwithstanding anything in this definition, no Investment may be made in any Unrestricted Subsidiary consisting of Intellectual Property which is material to the business of the Company and its Restricted Subsidiaries, taken as a whole.
 
Permitted Joint Venture” means any joint venture (which may be in the form of a limited liability company, partnership, corporation or other entity) in which the Company or any of its Restricted Subsidiaries is a joint venturer; provided, however, that (a) the joint venture is engaged solely in a Permitted Business and (b) the Company or a Restricted Subsidiary is required by the governing documents of the joint venture or an agreement with the other parties to the joint venture to participate in the management of such joint venture as a member of such joint venture’s Board of Directors or otherwise.
 
Permitted Jurisdiction” means the United States, any State thereof or the District of Columbia, Canada or any province or territory thereof, the United Kingdom, Australia, Jersey, Ireland, Luxembourg, the Netherlands, New Zealand, Sweden or Switzerland.
 
Permitted Liens” means:
 
(1)           Liens securing Obligations in respect of  Debt permitted by clause (1) of the definition of “Permitted Debt”; provided that (A) in the case of Liens securing any Obligations constituting First Priority Obligations, the holders of such Obligations, or their duly appointed agent, shall become party to the Intercreditor Agreement and (B) in the case of Liens securing any Junior Priority Debt, the holders of such Junior Priority Debt, or their duly appointed agent, shall become a party to an intercreditor agreement with the Collateral Agent on terms that are customary for such financings as determined by the Company in good faith reflecting the subordination of such Liens to the liens securing the Notes;
 
42

(2)           Liens in favor of the Company or any Restricted Subsidiary;
 
(3)           Liens on property of a Person existing at the time of a Permitted Acquisition; provided that such Liens were not Incurred in contemplation of or in connection with such Permitted Acquisition and do not extend to any assets other than those of the Person so acquired by the Company or the Restricted Subsidiary;
 
(4)           (x) Liens on property existing at the time of acquisition thereof by the Company or any Restricted Subsidiary of the Company, provided that such Liens were not Incurred in contemplation of or in connection with such acquisition and do not extend to any property other than the property so acquired by the Company or the Restricted Subsidiary and (y) Liens securing Debt permitted by clause (21)(ii) of the definition of “Permitted Debt” may be secured by Liens on the newly acquired assets or assets of the newly acquired subsidiary, provided that such Liens were not created in contemplation of the acquisition of such assets or subsidiary by the Company or any Restricted Subsidiary, provided, further, that the Senior Secured Net Leverage Ratio, determined on a Pro Forma Basis, shall not exceed 5.00:1.00;
 
(5)           Liens existing on the Issue Date, excluding Liens under the Credit Agreement;
 
(6)           pledges or deposits by such Person under worker’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Debt) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import or customs duties or for the payment of rent, in each case Incurred in the ordinary course of business;
 
(7)           Liens imposed by law, including carriers’, warehousemen’s, mechanics’, materialmen’s and repairmen’s Liens, arising in the ordinary course of business and securing obligations that are not overdue by more than 60 days or that are being contested in good faith by appropriate proceedings, in each case in respect of which a reserve or other appropriate provisions, if any, as shall be required by IFRS shall have been made in respect thereof;
 
(8)           Liens for taxes, assessments or other governmental charges not yet subject to penalties for non-payment or which are being contested in good faith by appropriate proceedings, provided that appropriate reserves required pursuant to IFRS have been made in respect thereof;
 
43

(9)           Liens in favor of issuers of surety or performance bonds or letters of credit or bankers’ acceptances issued pursuant to the request of and for the account of such Person in the ordinary course of its business; provided, however, that such letters of credit do not secure Debt;
 
(10)         (a) Liens securing Swap Contracts and Hedging Obligations, in each case, not entered into for speculative purposes and (b) set-off and early termination rights under Swap Contracts and Hedging Obligations;
 
(11)         Liens relating to bankers’ liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a depositary institution (for the avoidance of doubt, this includes any security interest or right of setoff which arises from the general banking conditions (algemene bankvoorwaarden)); provided that:
 
(a)          such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Company in excess of those set forth by regulations promulgated by the Federal Reserve Board; and
 
(b)          such deposit account is not established by the Company or any Restricted Subsidiary for the purpose of providing collateral to the depository institution;
 
(12)         any Lien resulting from the deposit of money or other cash equivalents or other evidence of indebtedness in trust or as agent for the purpose of defeasing Debt of the Company or any Restricted Subsidiary; provided that the Incurrence of Debt and such defeasance or satisfaction and discharge are not prohibited by this Indenture;
 
(13)         Liens securing Obligations in respect of Debt (including Capital Lease Obligations and Purchase Money Debt) permitted by clause (10) of the definition of “Permitted Debt” hereunder covering only the assets acquired, constructed, installed, improved, repaired or developed with, or secured by, such Debt; provided that such Liens attach concurrently with or within 270 days after the acquisition, construction, installation, improvement, repair or development (as applicable) of the property subject to such Liens;
 
(14)         Liens securing Obligations in respect of (a) Debt permitted by clause (14) of the definition of “Permitted Debt” hereunder (and any Guarantee thereof) and (b) Obligations of Subsidiaries other than Guarantors; provided that in the case of clause (b), such Liens attach only to assets of Restricted Subsidiaries other than Guarantors and such Liens do not secure obligations in an aggregate principal or other amount outstanding at any time not exceeding the greater of (x) $23.0 million and (y) 1.0% of Consolidated Total Assets;
 
44

(15)         Liens securing Debt permitted by clause (15) of the definition of “Permitted Debt” hereunder;
 
(16)         Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
 
(17)         Liens securing Obligations in respect of Refinancing Debt; provided that any such Lien covers only the assets that secure the Debt being refinanced; provided, further, for the avoidance of doubt, that this clause (17) shall not permit Liens securing Refinancing Debt that is incurred in the form of Junior Priority Debt pursuant to subclause (6)(y) of the definition of “Refinancing Debt” hereunder;
 
(18)         leases, subleases, survey exceptions, encumbrances, easements or reservations of, or rights of others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines 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 were not Incurred in connection with Debt and which do not in the aggregate materially impair the operation of the business of the Company and its Subsidiaries taken as a whole;
 
(19)         (a) Liens solely on any cash earnest money deposits made by the Company or any of the Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder and (b) Liens on the proceeds of Debt in favor of the lenders or holders of such Debt and their agents or representatives pending the application of such proceeds to a Permitted Acquisition or other Investment permitted hereunder or any refinancing;
 
(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 consignment or similar arrangements for the sale of goods entered into in the ordinary course of business;
 
(22)         Liens securing insurance premium financing arrangements, provided that such Liens are limited to the applicable unearned insurance premiums;
 
(23)         Liens arising from precautionary UCC or PPSA (or its equivalent) financing statements or similar or analogous financing statements in any jurisdiction;
 
(24)         Liens arising from the right of distress enjoyed by landlords or lessors or Liens otherwise granted to landlords or lessors, in either case, to secure payment of arrears of rent in respect of leased properties;
 
(25)         deemed trusts or other Liens that are unregistered and that secure amounts that are not yet delinquent in respect of unpaid wages, vacation pay, employee or non-resident withholding tax source deductions, goods and services taxes, sales taxes, harmonized sales taxes, municipal taxes, workers’ compensation, unemployment insurance, pension fund obligations and realty taxes;
 
45

(26)         Liens on Capital Interests of any joint venture or Unrestricted Subsidiary:
 
(i)           securing obligations of such joint venture or Unrestricted Subsidiary, as the case may be; or
 
(ii)           pursuant to the relevant joint venture agreement or arrangement;
 
(27)         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 Debt secured by any Lien permitted under this Indenture; provided, however, that (x) such new Lien pursuant to this clause shall be limited to all or part of the same property (which, for the avoidance of doubt, may include after-acquired property to the extent such after-acquired property would be subject to the existing Lien) that secured the original Lien (plus improvements on and accessions to such property), (y) the Debt secured by such Lien at such time pursuant to this clause is not increased to any amount greater than the sum of (A) the outstanding principal amount or, if greater, committed amount of the applicable Debt at the time the original Lien became a Lien permitted hereunder, and (B) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement, and (z) such new Lien pursuant to this clause shall also continue to constitute a utilization of any capacity pursuant to the clause under which such initial Lien was incurred;
 
(28)         licenses, sublicenses, covenants not to sue, releases or other rights under intellectual property granted to others (including in connection with distribution, license and supply agreements) in the ordinary course of business or in the reasonable business judgment of the Company or any of the Restricted Subsidiaries;
 
(29)         Liens securing the Company’s or its Subsidiaries’ obligations in relation to corporate aircraft, including rights under any lease, sublease, charter, management, operating, crew, service, repair, maintenance, storage or other agreement relating to the aircraft, rights in the aircraft and any parts, accessions and accessories thereto, rights under insurance policies and security deposits and rights in income derived from and proceeds of any of the foregoing, in the ordinary course;
 
(30)         other Liens securing Debt in an aggregate principal amount not to exceed the greater of (x) $40.5 million and (y) 1.75% of Consolidated Total Assets at any one time outstanding;
 
46

(31)         Liens securing any Obligations in respect of the Notes issued on the Issue Date, this Indenture or the Collateral Documents, excluding, for the avoidance of doubt, any Additional Notes;
 
(32)         subject, if applicable, to an Intercreditor Agreement, Liens securing Debt permitted by clause (21)(i) of the definition of “Permitted Debt”;
 
(33)         Liens securing Obligations Incurred under a Revolving Credit Facility permitted by clause (23) of the definition of “Permitted Debt”; provided that (a) the holders of such Obligations, or their duly appointed agent, shall become party to the Intercreditor Agreement and (b) only Liens securing Obligations Incurred pursuant to clause (23) of the definition of “Permitted Debt” may have priority under the Priority Waterfall, and no other Debt otherwise permitted to be secured hereunder may have such status;
 
(34)         Liens securing Debt permitted to be incurred pursuant to any Sale and Leaseback Transactions, so long as such liens attach only to the property to which such Debt relates (or accessions to such property and proceeds thereof);
 
(35)         any interest or title of a lessor or sublessor under any leases or subleases entered into by the Company or any Restricted Subsidiary in the ordinary course of business;
 
(36)         Liens that are contractual rights of set-off, off-set or recourse to account balances relating to purchase orders and other agreements (other than Debt for borrowed money) entered into with customers in the ordinary course of business;
 
(37)         leases or subleases, licenses or sublicenses granted to or from other Persons in the ordinary course of business and not interfering in any material and adverse respect with the business of the Company and the Restricted Subsidiaries, taken as a whole;
 
(38)         Liens on securities that are the subject of repurchase agreements constituting Eligible Cash Equivalents under clause (iii) of the definition thereof; and
 
(39)         Liens securing obligations in respect of any cash management services.
 
Person” means any individual, corporation, limited liability company, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.
 
Photofrin” means all pharmaceutical products containing the active ingredient porfimer sodium in various dosage forms, currently marketed by the Borrower or any of its affiliates under the trademark PHOTOFRIN.
 
Pinnacle” means Pinnacle Biologics, Inc.
 
47

Plan Sponsor” means any Person, together with its controlled affiliates (which shall include “Affiliates” as defined in the Company’s articles, as amended), which collectively owns, directly or indirectly, Class A special shares, Class B special shares or Class C special shares or 5% or more of the outstanding [Voting Interests] of the Company after giving effect to the Recapitalization Transaction on the Issue Date.
 
Pledge and Security Agreement” means the Pledge and Security Agreement to be executed by the Company and each Guarantor in the form of Exhibit E-1, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
Post-Petition Interest” means any interest or entitlement to fees or expenses or other charges that accrue after the commencement of any bankruptcy or insolvency proceeding, whether or not allowed or allowable as a claim in any such bankruptcy or insolvency proceeding.
 
PPSA” means the Personal Property Security Act (Ontario); provided that, if the validity, attachment, perfection (or opposability) or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the personal property security laws or laws relating to movable property of any jurisdiction other than the Province of Ontario, “PPSA” shall include those personal property security laws or laws relating to movable property in such other jurisdiction for the purpose of the provisions hereof relating to such validity, attachment, perfection (or opposability), effect of perfection or of non-perfection or priority and for the definitions related to such provisions.
 
Preferred Interests,” as applied to the Capital Interests in any Person, means Capital Interests in such Person of any class or classes (however designated) that rank prior, as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding-up of such Person, to shares of Common Interests in such Person.
 
Priority Waterfall” means the provisions of Section [ ] of the Intercreditor Agreement.
 
Pro Forma” or “Pro Forma Basis” means, for purposes of determining compliance with any provision of this Indenture, including the determination of any financial ratio or test or the amount of revenue, Consolidated Total Assets or Consolidated Adjusted EBITDA, that any Specified Transaction occurring since the first day of the relevant period to and including the relevant date such determination is made (including after the relevant quarter or period end, if applicable) shall be deemed to have occurred as of the first day of the relevant period, including pro forma adjustments arising out of events attributable to such Specified Transaction (including giving effect to those specified in accordance with the definitions of Consolidated Adjusted EBITDA and Consolidated Net Income); provided that any event, occurrence or transaction that would otherwise be deemed a Specified Transaction, but for failure to meet the monetary threshold in the definition thereof, shall also be given effect on a Pro Forma Basis.  Upon giving effect to a transaction on a Pro Forma Basis, (i) any Debt Incurred by the Company or any Restricted Subsidiaries in connection with such Specified Transaction (or any other transaction which occurred during the relevant period) shall be deemed to have been Incurred as of the first day of the relevant period, (ii) if such Debt has a floating or formula rate, then the rate of interest for such Debt for the applicable period for purposes of the calculations contemplated by this definition shall be determined by utilizing the rate which is or would be in effect with respect to such Debt as at the relevant date of such calculations, (iii) income statement items (whether positive or negative) and Consolidated Adjusted EBITDA attributable to all property acquired in such Specified Transaction or to the Investment constituting such Specified Transaction, as applicable, shall be included as if such Specified Transaction has occurred as of the first day of the relevant period, (iv) income statement items (whether positive or negative) attributable to all property disposed of in any Specified Transaction (including any income statement items attributable to disposed abandoned or discontinued operations), shall be excluded as if such Specified Transaction has occurred as of the first day of the relevant period, (v) such other pro forma adjustments which would be permitted or required by United States securities laws or Canadian Securities Laws, as amended, shall be taken into account (in addition to any adjustments permitted pursuant to any applicable financial definition or test) and (vi) such other adjustments made by the Borrower pursuant to clause (vi) of the second sentence of the definition of the term “Pro Forma” or “Pro Forma Basis” (as each such term is defined in the Credit Agreement (as in effect on the Issue Date)).  Interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by an Authorized Officer of the Company to be the rate of interest implicit in such Capital Lease Obligation in accordance with IFRS.  Interest on Debt that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, bankers’ acceptances market 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 or the applicable Restricted Subsidiary may designate.  Any such adjustments included in calculations made on a Pro Forma Basis shall continue to apply to subsequent calculations of any applicable financial ratios or tests, including during any subsequent test period in which the effects thereof are expected to be realized.
 
48

Purchase Date” has the meaning set forth in the definition of “Offer to Purchase.”
 
Purchase Price” has the meaning set forth in the definition of “Offer to Purchase.”
 
Purchase Money Debt” means Debt:
 
(i)            Incurred to finance the purchase, assembly, installation or construction (including additions and improvements thereto) of any assets (other than Capital Interests) of such Person or any Restricted Subsidiary; and
 
(ii)           that is secured by a Lien on such assets where the lender’s sole security is to the assets so purchased, assembled, installed or constructed; and in any case that does not exceed 100% of the cost and to the extent the purchase or construction prices for such assets are or should be included in “addition to property, plant or equipment” in accordance with IFRS.
 
49

Qualified Capital Interests” in any Person means a class of Capital Interests other than Redeemable Capital Interests.
 
Qualified Equity Offering” means (i) any public equity offering of Qualified Capital Interests yielding gross proceeds to the Company, or any direct or indirect parent company of the Company, of at least $20.0 million or (ii) a private equity offering of Qualified Capital Interests of the Company, or any direct or indirect parent company of the Company, other than any such public or private sale to an entity that is an Affiliate of the Company; provided that, in the case of an offering or sale by a direct or indirect parent company of the Company, such parent company contributes to the capital of the Company the portion of the net cash proceeds of such offering or sale necessary to pay the aggregate Redemption Price (plus accrued and unpaid interest, if any, to the redemption date) of the Notes to be redeemed pursuant to the provisions described under Section 3.07(b).
 
Rating Agencies” means Moody’s and S&P or if Moody’s or S&P or both shall not make a rating on the Notes publicly available other than as a result of actions by the Company, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company which shall be substituted for Moody’s or S&P or both, as the case may be.
 
Recapitalization Transaction” has the meaning set forth in the recitals hereto.
 
Record Date” for the interest payable on any applicable Interest Payment Date means [          ] or [          ] (whether or not a Business Day) preceding such Interest Payment Date.
 
Redeemable Capital Interests” in any Person means any equity security of such Person that, by its terms (or by terms of any security into which it is convertible or for which it is exchangeable) or otherwise (including the passage of time or the happening of an event), is required to be redeemed (other than in exchange for Qualified Capital Interests), is redeemable (other than in exchange for Qualified Capital Interests) at the option of the holder thereof in whole or in part (including by operation of a sinking fund) or is convertible or exchangeable for Debt of such Person at the option of the holder thereof, in whole or in part, at any time prior to the Stated Maturity of the Notes; provided that only the portion of such equity security which is required to be redeemed, is so convertible or exchangeable or is so redeemable at the option of the holder thereof before such date will be deemed to be Redeemable Capital Interests.  Notwithstanding the preceding sentence, any equity security that would constitute Redeemable Capital Interests solely because the holders of the equity security have the right to require the Company to repurchase such equity security upon the occurrence of a Change of Control or an Asset Sale will not constitute Redeemable Capital Interests if the terms of such equity security provide that the Company may not repurchase or redeem any such equity security pursuant to such provisions unless such repurchase or redemption complies with Section 4.07.  The amount of Redeemable Capital Interests deemed to be outstanding at any time for the purposes of this Indenture will be the maximum amount that the Company and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Redeemable Capital Interests or portion thereof, exclusive of accrued dividends.
 
50

Redemption Price,” when used with respect to any Note to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
 
Refinancing Debt” means Debt that refunds, refinances, renews, replaces or extends any Debt permitted to be Incurred by the Company or any Restricted Subsidiary pursuant to the terms of this Indenture, whether involving the same or any other lender or creditor or group of lenders or creditors, but only to the extent that:
 
(1)           the Refinancing Debt is subordinated to the Notes or the Note Guarantees, as applicable, to at least the same extent as the Debt being refunded, refinanced or extended, if such Debt was subordinated to the Notes;
 
(2)           the Refinancing Debt is scheduled to mature either (a) no earlier than the Debt being refunded, refinanced or extended or (b) at least 91 days after the maturity date of the Notes;
 
(3)           the Refinancing Debt has an Average Life at the time such Refinancing Debt is Incurred that is equal to or greater than the Average Life of the Debt being refunded, refinanced, renewed, replaced or extended;
 
(4)           such Refinancing Debt is in an aggregate principal amount that is less than or equal to the sum of (a) the aggregate principal or accreted amount (in the case of any Debt issued with original issue discount, as such) then outstanding under the Debt being refunded, refinanced, renewed, replaced or extended, (b) the amount of accrued and unpaid interest, if any, on such Debt being refinanced and any reasonably determined premium necessary to accomplish any such refinancing (including in that limitation any “make whole” premium) and (c) the amount of reasonable and customary fees, expenses and costs related to the Incurrence of such Refinancing Debt;
 
(5)           such Refinancing Debt is Incurred by the same Person (or its successor) that initially Incurred the Debt being refunded, refinanced, renewed, replaced or extended, except that the Company or any Guarantor may Incur Refinancing Debt to refund, refinance, renew, replace or extend Debt of any Restricted Subsidiary of the Company; and
 
(6)           (x) if the Debt being refinanced is secured by a Lien on any Collateral, such Refinancing Debt may be secured by a Lien on such Collateral (including any Collateral pursuant to after-acquired property clauses to the extent any such Collateral would have secured the Debt being refinanced, but not any additional Collateral) on terms relating to such Collateral not materially less favorable to the First Priority Notes Secured Parties (as determined conclusively by the Company and evidenced by an Officer’s Certificate) than those contained in the documentation (including any intercreditor agreement) governing the Debt being refinanced and (y) if the Debt being refinanced is unsecured, such Refinancing Debt may be secured by a Lien on the Collateral (including any Collateral pursuant to after-acquired property clauses to the extent any such Collateral would have secured the Debt being refinanced, but not any additional Collateral) so long as such Refinancing Debt is Junior Priority Debt and the holders of such Junior Priority Debt, or their duly appointed agent, shall become a party to an intercreditor agreement with the Trustee on terms that are customary for such financings as determined by the Company in good faith reflecting the subordination of such Liens to the liens securing the Notes.
 
51

Related Business Assets” means assets (other than cash or Eligible Cash Equivalents) used or useful in a Permitted 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 shall not be deemed to be Related Business Assets if they consist of securities of a Person, unless upon receipt of the securities of such Person, such Person would become a Restricted Subsidiary.
 
Required Consenting Holders” means, as of any date of determination, one or more Holders holding Initial Notes constituting at least the Applicable Voting Percentage.
 
Responsible Officer” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such Person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
 
Restricted Amount” has the meaning set forth in Section 4.10(d).
 
Restricted Investment” means any Investment other than a Permitted Investment.
 
Restricted Payment” means any of the following:
 
(a)           any dividend or other distribution declared and paid on the Capital Interests in the Company or on the Capital Interests in any Restricted Subsidiary of the Company that are held by, or declared and paid to, any Person other than the Company or a Restricted Subsidiary of the Company, other than:
 
(i)           dividends, distributions or payments made solely in Qualified Capital Interests in the Company; and
 
(ii)          dividends or distributions payable to the Company or a Restricted Subsidiary of the Company or to other holders of Capital Interests of a Restricted Subsidiary on a pro rata basis;
 
52

(b)           any payment made by the Company or any of its Restricted Subsidiaries to purchase, redeem, acquire or retire any Capital Interests in the Company (including the conversion into, or exchange for, Debt, of any Capital Interests) other than any such Capital Interests owned by the Company or any Restricted Subsidiary (other than a payment made solely in Qualified Capital Interests in the Company);
 
(c)           any payment made by the Company or any of its Restricted Subsidiaries (other than a payment made solely in Qualified Capital Interests in the Company) to redeem, repurchase, defease (including an in substance or legal defeasance) or otherwise acquire or retire for value (including pursuant to mandatory repurchase covenants), prior to any scheduled maturity, scheduled sinking fund or mandatory redemption payment, any Junior Financing (excluding any Debt owed to the Company or any Restricted Subsidiary), except payments of principal and interest in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, within one year of the due date thereof (this clause (c), “Junior Financing Payments”); and
 
(e)           any Restricted Investment.
 
Restricted Subsidiary” means any Subsidiary that has not been designated as an “Unrestricted Subsidiary” in accordance with this Indenture.
 
Restructuring Support Agreement” means the Restructuring Support Agreement dated as of May 1, 2018, by and among the Company, the Company’s guarantor subsidiaries party thereto, CHCL and the Consenting Debtholders (as defined in the Restructuring Support Agreement).
 
Revolving Credit Facility” means a Credit Facility providing for revolving credit loans.
 
S&P” means Standard & Poor’s, a division of The McGraw Hill Companies, Inc., and any successor to its rating agency business.
 
Sale and Leaseback Transaction” means any direct or indirect arrangement pursuant to which property is sold or transferred by the Company or a Restricted Subsidiary and is thereafter leased back as a capital lease by the Company or a Restricted Subsidiary.
 
Securities Act” means the Securities Act of 1933, as amended.
 
Security Agreements” means, collectively, the Pledge and Security Agreement, the Barbados Debenture, the Canadian Security Agreements, the Dutch Security Agreements, the English Security Agreements, the Irish Security Agreements, the Jersey Security Agreements, the Luxembourg Security Agreements, the Swedish Closing Date Security Agreements and the Swiss Security Agreements, and “Security Agreement” means each of them.
 
53

Senior Secured Credit Facilities Collateral Agent” means, individually and/or collectively, (i) GLAS, in its capacity as administrative agent and collateral agent under the Credit Agreement, together with its successors in such capacities, and (ii) any Person elected, designated or appointed as the administrative agent, trustee, collateral agent or similar representative with respect to documents evidencing any First Priority Credit Obligations.
 
Senior Secured Credit Facilities Secured Parties” means the “Secured Parties” as defined in the Credit Agreement.
 
Senior Secured Net Leverage Ratio” means, as of any date of determination. the ratio of (a) the aggregate principal amount of Consolidated Total Debt secured by a Lien on the Collateral on a pari passu basis with, or senior to, Liens securing the Notes (net of unrestricted cash and Eligible Cash Equivalents of the Company and its Restricted Subsidiaries in excess of the Base Amount, except the proceeds of Debt that is Incurred for which the Senior Secured Net Leverage Ratio is to be calculated or is otherwise Incurred substantially contemporaneously with such Debt) to (b) Consolidated Adjusted EBITDA for the most recently ended four fiscal quarter period for which financial statements are available, which may include internal financial statements prepared in good faith by the Company.
 
Significant Subsidiary” has the meaning set forth in Rule 1-02 of Regulation S-X under the Securities Act and Exchange Act, but shall not include any Unrestricted Subsidiary.
 
Specified Transaction” means, with respect to any period, any:
 
(1)           Investment involving the acquisition of an operating or geographical unit of a business or that constitutes an acquisition of all or substantially all of the common stock of a Person and involves the payment of consideration by the Company and its Restricted Subsidiaries in excess of $5.0 million;
 
(2)           sale or transfer of assets or property or other asset disposition (including any disposal, abandonment or discontinuance of operations) that yields gross proceeds to the Company or any of its Restricted Subsidiaries in excess of $5.0 million or involves the abandonment or discontinuation of operations with a value in excess of $5.0 million;
 
(3)           incurrence, amendment, modification, repayment or refinancing of Debt;
 
(4)           Restricted Payment;
 
(5)           designation or redesignation of an Unrestricted Subsidiary or Restricted Subsidiary; or
 
(6)           other event,
 
54

in each case, that by the terms of this Indenture requires pro forma compliance with a test or covenant thereunder or requires such test or covenant to be calculated on a Pro Forma Basis.
 
Stated Maturity,” when used with respect to (i) any Note or any installment of interest thereon, means the date specified in such Note as the fixed date on which the principal amount of such Note or such installment of interest is due and payable and (ii) any other Debt or any installment of interest thereon, means the date specified in the instrument governing such Debt as the fixed date on which the principal of such Debt or such installment of interest is due and payable.
 
Subordinated Obligation” means any Debt of the Company or any Guarantor (whether outstanding on the Issue Date or thereafter Incurred) that is subordinated or junior in right of payment to the Notes or the Note Guarantees pursuant to a written agreement to that effect.
 
“Subsidiary” means, with respect to any Person, any corporation, limited or general partnership, trust, association or other business entity of which more than 50% of the total voting power of shares of the Voting Interests is at the time owned, directly or indirectly, by:
 
(1)           such Person;
 
(2)           such Person and one or more Subsidiaries of such Person; or
 
(3)           one or more Subsidiaries of such Person.
 
Unless otherwise specified herein, each reference to a Subsidiary will refer to a Subsidiary of the Company.
 
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, whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
 
Swedish Closing Date Security Agreements” means the Swedish Intellectual Property Security Agreement and the Swedish Share Pledge Agreement.
 
55

Swedish Companies Act” means the Swedish Companies Act (Sw.  aktiebolagslagen (2005:551)).
 
Swedish Guarantor” means any Guarantor incorporated in Sweden.
 
Swedish Intellectual Property Security Agreement” means the Swedish law governed pledge agreement to be executed by each of Concordia Laboratories Inc. (a société à responsabilité limitée incorporated in Luxembourg, having its registered office at 8-10, avenue de la Gare, L-1610 Luxembourg, and registered with the Registre de Commerce et des Sociétés, Luxembourg under number B200376), Concordia Pharmaceuticals Inc. (a société à responsabilité limitée incorporated in Luxembourg, having its registered office at 8-10, avenue de la Gare, L-1610 Luxembourg, and registered with the Registre de Commerce et des Sociétés, Luxembourg under number B200344), Amdipharm Mercury International Limited (a company incorporated in Jersey with registered number 88638) and Abcur AB (a company incorporated in Sweden with corporate identity no. 556701-3957) in respect of each such entity’s respective Intellectual Property located in Sweden, in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
Swedish Security Agreements” means the Swedish Closing Date Security Agreements and any other agreement, instrument or document governed by Swedish law and delivered by or on behalf of any Grantor pursuant to this Indenture or any of the other Notes Documents in order to grant to, or perfect in favor of, the Collateral Agent, for and on behalf of the First Priority Notes Secured Parties, a Lien on any assets of that Grantor as security for the First Priority Notes Obligations.
 
Swedish Share Pledge Agreement” means the Swedish law governed share pledge agreement between Mercury Pharma Group Ltd (a company incorporated in England with registered number 02330913) and the Collateral Agent relating to the shares in Abcur AB (a company incorporated in Sweden with corporate identity no. 556701-3957), in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
Swedish Transaction Security” means any Lien granted or created (or purported to be granted or created) under a Swedish Security Agreement.
 
Swiss Intellectual Property Security Agreements” means each Swiss law governed intellectual property rights security agreement, between, among others, (i) Amdipharm AG (a company incorporated in Switzerland with company number CHE-109.710.396), (ii) Amdipharm Mercury International Limited (a company incorporated in Jersey with company number [   ])[,][ and] (ii) Mercury Pharma Group Limited (a company incorporated in England and Wales with company number [   ])[ and [   ]]in respect of its Intellectual Property located in Switzerland, in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
56

Swiss Receivables Security Agreement” means the Swiss law governed security assignment agreement regarding the assignment of insurance receivables, intra-group receivables, trade receivables[,][and] insurance contracts [and tort claims] between, among others, Amdipharm AG (a company incorporated in Switzerland with company number CHE-109.710.396), as assignor, and the Collateral Agent and the First Priority Notes Secured Parties, in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
Swiss Security Agreements” means the Swiss Intellectual Property Security Agreements, the Swiss Receivables Security Agreement and the Swiss Share Pledge.
 
Swiss Share Pledge” means the Swiss law governed agreement on the pledge of all shares in Amdipharm AG (a company incorporated in Switzerland with company number CHE-109.710.396) between, among others, Amdipharm Holdings (a société à responsabilité limitée incorporated in Luxembourg, having its registered office at 46A, avenue J.F. Kennedy, L-1855 Luxembourg, and registered with the Registre de Commerce et des Sociétés, Luxembourg under number B105086) as pledgor, the Collateral Agent and the First Priority Notes Secured Parties, in the form of the corresponding Credit Facility Document or in such other form as may be agreed between the proposed parties thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
 
Swiss Withholding Tax” means the tax imposed based on the Swiss Federal Act on Withholding Tax of 13 October 1965 (Bundesgesetz über die Verrechnungssteuer).
 
Total Net Leverage Ratio” means, as of any date of determination, the ratio of (a) the aggregate principal amount of Consolidated Total Debt determined on a Pro Forma Basis as of the last day of the fiscal quarter for which internal financial statements are available (net of unrestricted cash and Eligible Cash Equivalents of the Company and its Restricted Subsidiaries in excess of the Base Amount, except the proceeds of Debt that is Incurred for which the Total Net Leverage Ratio is to be calculated or is otherwise Incurred substantially contemporaneously with such Debt) to (b) Consolidated Adjusted EBITDA for the most recently ended four fiscal quarter period for which internal financial statements are available prior to such date.
 
Transactions” means, collectively, (a) the consummation of the transactions contemplated by the Recapitalization Transaction, (b) the execution, delivery and performance by the Company and the Guarantors of the Notes Documents and (c) the execution, delivery and performance by the Company and the Guarantors of the documentation in connection with the borrowings under the Credit Agreement and the performance of obligations contemplated by the Credit Agreement.
 
57

Treasury Rate” means, as of any redemption date, the yield to maturity as of such redemption date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) which has become publicly available at least two Business Days prior to such redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the then remaining term of the Notes to [   ], 2020; provided, however, that if the period from such redemption date to [   ], 2020 is not equal to the constant maturity of a United States Treasury security for which a weekly average 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 [   ], 2020 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. The Company will (a) calculate the Treasury Rate on the second Business Day preceding the applicable redemption date and (b) prior to such redemption date, file with the Trustee an Officer’s Certificate setting forth the Applicable Premium and the Treasury Rate and showing the calculation of each in reasonable detail.
 
Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.
 
Trustee” means GLAS, as trustee, until a successor replaces it in accordance with the applicable provisions of this Indenture, and thereafter means the successor serving hereunder.
 
UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect from time to time in any applicable jurisdiction.
 
U.K. Domiciled Grantor” means any Grantor incorporated or otherwise organized under the laws of England and Wales.
 
Unrestricted Subsidiary” means:
 
(1)           any Subsidiary of the Company which at the time of determination shall be designated as an Unrestricted Subsidiary by the Company in the manner provided in Section 4.18; and
 
(2)           any Subsidiary of an Unrestricted Subsidiary.
 
U.S. Government Obligations” means securities that are (a) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation 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.
 
58

U.S. Person” means a U.S. person as defined in Rule 902(k) under the Securities Act.
 
Voting Interests” means, with respect to any Person, securities of any class or classes of Capital Interests in such Person entitling the holders thereof generally to vote on the election of members of the Board of Directors or comparable body of such Person or otherwise direct the management thereof. For greater certainty, as of the Issue Date, the “Voting Interests” of the Company consist of the Limited Voting Shares in the capital of the Company.
 
Wholly Owned Subsidiary” means a Restricted Subsidiary of the Company, all of the Capital Interests of which (other than directors’ qualifying shares) are owned by the Company or another Wholly Owned Subsidiary.
 
Section 1.02           Other Definitions.
 
Term
Section
Acceptable Commitment
4.10(c)(5)
Action
12.09(x)
Additional Amounts
2.13(b)
Affiliate Transaction
4.11(a)
Agreed Jurisdictions
12.02(a)
Authentication Order
2.02(c)
Beneficiary
1.05
Code
2.13(c)
Collateral Document Order
12.09(t)
Company
Preamble
Covenant Defeasance
8.02(a)
Covenant Suspension Event
4.19(a)(2)
Discharge
11.01(a)
DTC
2.06(f)(i)
Excess Proceeds
4.10(d)
Expiry Date
1.07(j)
FATCA Withholding
2.13(f)
Increased Amount
4.12(2)
Initial Notes
Recitals
Judgment Currency
13.18
LCT Election
1.9
 
59

Term
Section
LCT Test Date
1.9
Legal Defeasance
8.01(a)
Luxembourg Guarantor
10.08
Material Change Report
4.03(a)(3)
Maximum Amount
10.10(a)
MD&A
4.03(a)(1)
Net Cash Proceeds Application Period
4.10(c)
Non-Swedish Obligor
12.02(a)
Note Register
2.03(a)
Obligated Party
1.05
OID
2.06(f)(iii)
Own Debt
10.08(1)
Own Funds
10.08(1)
Parallel Obligations
12.02(a)(1)
Paying Agent
2.03(a)
Payor
2.13(a)
Principal Obligations
12.02(b)
Reference Date
4.07(a)(3)
Registrar
2.03(a)
Reinstatement Date
4.19(b)
Related Person
12.09(b)
relevant date
2.13(c)
Satisfaction of the Notes
4.19(f)
SEDAR
4.03(a)(4)
Subsequent Transaction
1.9
Surviving Entity
5.01(a)(1)
Suspended Covenants
4.19(a)(2)
Suspension Period
4.19(a)
Swiss Guarantor
10.10
Tax Act
2.13(c)
Tax Redemption Date
3.09(a)
taxes
2.13(a)
Taxing Jurisdiction
2.13(a)
Upstream or Cross-Stream Secured Obligations
10.10(a)
 
Section 1.03           Rules of Construction.
 
Unless the context otherwise requires:
 
(1)          a term defined in Section 1.01 or 1.02 has the meaning assigned to it therein, and a term used herein that is defined in the Trust Indenture Act, either directly or by reference therein, shall have the meaning assigned to it therein;
 
(2)          an accounting term not otherwise defined has the meaning assigned to it in accordance with IFRS;
 
60

(3)          “or” is not exclusive;
 
(4)          words in the singular include the plural, and words in the plural include the singular;
 
(5)          provisions apply to successive events and transactions;
 
(6)          unless the context otherwise requires, any reference to an “Appendix,” “Article,” “Section,” “clause,” “Schedule” or “Exhibit” refers to an Appendix, Article, Section, clause, Schedule or Exhibit, as the case may be, of this Indenture;
 
(7)          the words “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not any particular Article, Section, clause or other subdivision;
 
(8)          the words “including,” “includes” and other words of similar import shall be deemed to be followed by “without limitation”;
 
(9)          references to sections of, or rules under, the Securities Act, the Exchange Act or the Trust Indenture Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the Commission from time to time;
 
(10)        unless otherwise provided, references to agreements and other instruments shall be deemed to include all amendments and other modifications to such agreements or instruments, but only to the extent such amendments and other modifications are not prohibited by the terms of this Indenture;
 
(11)        in the event that a transaction meets the criteria of more than one category of permitted transactions or listed exceptions, the Company may classify such transaction as it, in its sole discretion, determines; and
 
(12)        where it relates to a Significant Subsidiary incorporated in Switzerland, a reference to a “winding-up”, “administration”, “liquidation”, “insolvency” or “dissolution” includes, without limitation bankruptcy proceedings (Konkurs), any proceedings leading to a provisional or definitive payment moratorium (provisorische or definitive Nachlassstundung), any proceedings leading to an emergency moratorium (Notstundung), or any proceeding for a postponement of bankruptcy pursuant to article 725a of the Swiss Code of Obligations (Konkursaufschub).
 
Section 1.04           Swedish Terms.
 
In this Indenture, unless the contrary intention appears, a reference to:
 
(a)           a “composition”, “assignment” or “arrangement with any creditor” includes any write-down of debt (Ackord) following from any procedure of “företagsrekonstruktion” under the Swedish Act on Reconstruction (Lag om företagsrekonstruktion (1996:764)) or “konkurs” under the Swedish Bankruptcy Act (Konkurslag (1987:672));
 
61

(b)           a “compulsory manager”, “receiver”, “liquidator” or “administrator” includes a “rekonstruktör” under the Swedish Act on Reconstruction, “konkursförvaltare” under the Swiss Bankruptcy Act, or “likvidator” under the Swedish Companies Act; and
 
(c)           a “bankruptcy”, “winding-up” or “dissolution” includes a “likvidation” or “konkurs” under Chapter 25 of the Swedish Companies Act.
 
Section 1.05           Trust Provisions.
 
If any party to this Indenture that is incorporated in Sweden (or any other jurisdiction which does not recognize the concept of a “trust”) (the “Obligated Party”) is required to hold an amount “in trust” or “as trustee” on behalf of another party (the “Beneficiary”), the Obligated Party shall hold such amount as agent for the Beneficiary on a separate account in accordance with the Swedish Escrow Funds Act (lag om redovisningsmedel (1944:181)) and shall promptly pay or transfer the same to the Beneficiary or as the Beneficiary may direct.
 
Section 1.06           Luxembourg Terms.
 
In this Indenture, where it relates to a company established in Luxembourg or incorporated under the laws of Luxembourg, a reference to:
 
(a)           a winding-up, administration, liquidation or dissolution includes, without limitation, bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), reprieve from payment (sursis de paiement), controlled management (gestion contrôlée), fraudulent conveyance (action pauliana), general settlement with creditors, reorganization or similar laws affecting the rights of creditors generally;
 
(b)           a receiver, administrative receiver, liquidator, administrator or the like includes, without limitation, a juge délégué, commissaire, juge-commissaire, liquidateur or curateur;
 
(c)           a security interest includes any hypothèque, nantissement, gage, privilège, sûreté réelle, droit de rétention and any type of real security or agreement or arrangement having a similar effect and any transfer of title by way of security; and
 
(d)           a person being unable to pay its debts includes that person being in a state of cessation of payments (cessation de paiements).
 
Section 1.07           Québec Matters.
 
62

For purposes of any assets, liabilities or entities located in the Province of Québec and for all other purposes pursuant to which the interpretation or construction of this Indenture may be subject to the laws of the Province of Québec or a court or tribunal exercising jurisdiction in the Province of Québec, (a) “personal property” shall include “movable property,” (b) “real property” or “real estate” shall include “immovable property,” (c) “tangible property” shall include “corporeal property,” (d) “intangible property” shall include “incorporeal property,” (e) “security interest,” “mortgage” and “lien” shall include a “hypothec,” “right of retention,” “prior claim” and a “resolutory clause”, as applicable, (f) all references to filing, perfection, priority, remedies, registering or recording under the Uniform Commercial Code or a Personal Property Security Act shall include publication under the Civil Code of Québec, (g) all references to “perfection” of or “perfected” lien or security interest shall include a reference to an “opposable” or “set up” hypothec as against third parties, (h) any “right of offset,” “right of setoff” or similar expression shall include a “right of compensation,” (i) “goods” shall include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (j) an “agent” shall include a “mandatary,” (k) “construction liens” shall include “legal hypothecs,” (l) “joint and several” shall include “solidary,” (m) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault,” (n) “beneficial ownership” shall include “ownership,” (o) “easement” shall include “servitude,” (p) “priority” shall include “prior claim,” or “rank”, as applicable, (q) “survey” shall include “certificate of location and plan,” (r) “state” shall include “province,” (s) “fee simple title” shall include “absolute ownership,” (t) “accounts” shall include “claims,” (u) “leasehold interest” shall be deemed to be “rights resulting from a lease,” (v) “lease” shall include a “contract of leasing (crédit-bail).”  The parties hereto confirm that it is their wish that this Agreement and any other document executed in connection with the transactions contemplated herein be drawn up in the English language only and that all other documents contemplated thereunder or relating thereto, including notices, may also be drawn up in the English language only.  Les parties aux présentes confirment que c’est leur volonté que cette convention et les autres documents de crédit soient rédigés en langue anglaise seulement et que tous les documents, y compris tous avis, envisagés par cette convention et les autres documents peuvent être rédigés en langue anglaise seulement.
 
Section 1.08           Acts of Holders.
 
(a)           Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing.  Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company and the Guarantors.  Proof of execution of any such instrument or of a writing appointing any such agent, or the holding by any Person of a Note, shall be sufficient for any purpose of this Indenture and (subject to Section 7.01) conclusive in favor of the Trustee, the Company and the Guarantors, if made in the manner provided in this Section 1.07.
 
(b)           The fact and date of the execution by any Person of any such instrument or writing may be proved (1) by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof, (2) if executed by or on behalf of the Company, by a certificate from the secretary or assistance secretary or other officer performing a similar function, or (3) in any other manner deemed reasonably sufficient by the Trustee.  Where such execution is by or on behalf of any legal entity other than an individual, such certificate or affidavit shall also constitute proof of the authority of the Person executing the same.  The authority of the Person executing the same may also be proved in any other manner deemed reasonably sufficient by the Trustee.
 
63

(c)           The ownership of Notes shall be proved by the Note Register.
 
(d)           Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of any action taken, suffered or omitted by the Trustee, the Company or the Guarantors in reliance thereon, whether or not notation of such action is made upon such Note.
 
(e)           The Company may set a record date for purposes of determining the identity of Holders entitled to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, or to vote on any action authorized or permitted to be taken by Holders; provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in clause (f) below.  Unless otherwise specified, if not set by the Company prior to the first solicitation of a Holder made by any Person in respect of any such action, or in the case of any such vote, prior to such vote, any such record date shall be the later of 30 days prior to the first solicitation of such consent or vote or the date of the most recent list of Holders furnished to the Trustee prior to such solicitation or vote.  If any record date is set pursuant to this clause (e), the Holders on such record date, and only such Holders, shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other action (including revocation of any action), whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless made, given or taken on or prior to the applicable Expiry Date by Holders of the requisite principal amount of Notes, or each affected Holder, as applicable, on such record date.  Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiry Date to be given to the Trustee in writing and to each Holder in the manner set forth in Section 13.01.
 
(f)            The Trustee may set any day as a record date for the purpose of determining the Holders entitled to join in the giving or making of (1) any notice of default under Section 6.01(a), (2) any declaration of acceleration referred to in Section 6.02, (3) any direction referred to in Section 6.05 or (4) any request to pursue a remedy referred to in Section 6.06(2).  If any record date is set pursuant to this paragraph, the Holders on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless made, given or taken on or prior to the applicable Expiry Date by Holders of the requisite principal amount of Notes or each affected Holder, as applicable, on such record date.  Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiry Date to be given to the Company and to each Holder in the manner set forth in Section 13.01.
 
64

(g)           Without limiting the foregoing, a Holder entitled to take any action hereunder with regard to any particular Note may do so with regard to all or any part of the principal amount of such Note or by one or more duly appointed agents, each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.  Any notice given or action taken by a Holder or its agents with regard to different parts of such principal amount pursuant to this paragraph shall have the same effect as if given or taken by separate Holders of each such different part.
 
(h)           Without limiting the generality of the foregoing, a Holder, including a Depositary that is the Holder of a Global Note, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and a Depositary that is the Holder of a Global Note may provide its proxy or proxies to the beneficial owners of interests in any such Global Note through such Depositary’s standing instructions and customary practices.
 
(i)            The Company may fix a record date for the purpose of determining the Persons who are beneficial owners of interests in any Global Note held by a Depositary entitled under the procedures of such Depositary, if any, to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders; provided that, if such a record date is fixed, only the beneficial owners of interests in such Global Note on such record date or their duly appointed proxy or proxies shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other action, whether or not such beneficial owners remain beneficial owners of interests in such Global Note after such record date.  No such request, demand, authorization, direction, notice, consent, waiver or other action shall be effective hereunder unless made, given or taken on or prior to the applicable Expiry Date.
 
(j)            With respect to any record date set pursuant to this Section 1.07, the party hereto that sets such record date may designate any day as the “Expiry Date” and from time to time may change the Expiry Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiry Date is given to the other party hereto in writing, and to each Holder of Notes in the manner set forth in Section 13.01, on or prior to both the existing and the new Expiry Date.  If an Expiry Date is not designated with respect to any record date set pursuant to this Section 1.07, the party hereto which set such record date shall be deemed to have initially designated the 90th day after such record date as the Expiry Date with respect thereto, subject to its right to change the Expiry Date as provided in this clause (j).
 
65

Section 1.09           Dutch Terms.
 
In this Indenture, where it relates to a Dutch Domiciled Grantor, a reference to financial assistance means any action or contemplated action prohibited under section 2:98(c) of the Dutch Civil Code.
 
Section 1.10           Jersey Terms.
 
In this Indenture, where it relates to a company incorporated under the laws of Jersey or a security governed by Jersey law, a reference to:
 
(a)           a “winding up”, “administration” or “dissolution” includes, without limitation, “bankruptcy” (as that term is interpreted pursuant to Article 8 of the Interpretation (Jersey) Law 1954), a compromise or arrangement of the type referred to in Article 125 of the Companies (Jersey) Law 1991, any procedure or process referred to in Part 21 of the Companies (Jersey) Law 1991, and any other similar proceedings affecting the rights of creditors generally under Jersey law, and shall be construed so as to include any equivalent or analogous proceedings;

(b)           a “receiver”, “administrative receiver”, “administrator” or the like includes without limitation, the Viscount of the Royal Court of Jersey, Autorisés or any other person performing the same function of each of the foregoing; and

(c)           “Security” or a “security interest” includes, without limitation, any hypothèque whether conventional, judicial or arising by operation of law and any security interest created pursuant to the Security Interests (Jersey) Law 1983 or Security Interests (Jersey) Law 2012 and any related legislation.
 
 
Section 1.11           Elections.
 
To the extent that any provision hereof requires (x) compliance with any financial ratio or test, including the Senior Secured Net Leverage Ratio and the Total Net Leverage Ratio, (y) the absence of any Default or Event of Default (or any type of Default or Event of Default) or (z) compliance with any cap expressed as a percentage of Consolidated Adjusted EBITDA or Consolidated Total Assets as a condition to (1) the consummation of any transaction in connection with any Limited Condition Transaction or (2) the Incurrence of any Debt (and any Liens related thereto) Incurred to finance, or in connection with, such Limited Condition Transaction, the determination of whether the relevant condition is satisfied may be made, at the election of the Company: (A) in the case of any Limited Condition Transaction, either (I) at the time of the execution of the definitive agreement with respect to the relevant acquisition or investment (the Company’s election to exercise the option pursuant to this clause (A)(I) in connection with such Limited Condition Transaction, an “LCT Election”) or (II) at the time of the consummation of the relevant acquisition or investment, in either case, after giving effect to the acquisition and any related Debt and Liens on a Pro Forma Basis or (B) in the case of any Debt (or any Liens related thereto) Incurred to finance or in connection with such Limited Condition Transaction, either (I) at the time of entry into the commitment for such Debt (provided that such election shall be required to have been made if the election under clause (A)(I) has been made) or (II) at the time of the Incurrence of such Debt or Liens (provided that such election shall be required to have been made if the election under clause (A)(II) has been made), in either case, after giving effect to the relevant Debt, Liens and any related acquisition on a Pro Forma Basis. For the avoidance of doubt, if the Company has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the date the definitive agreements for the Limited Condition Transaction are entered into (such date, the “LCT Test Date”) would have failed to have been complied with as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated Adjusted EBITDA or Consolidated Total Assets of the Company or the Person subject to such Limited Condition Transaction, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have failed to have been complied with as a result of such fluctuations. If the 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 Debt or Liens, the making of Restricted Payments, the making of any Investment, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Company, the prepayment, redemption, purchase, defeasance or other satisfaction of Debt 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 or irrevocable notice for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, for purposes of determining whether such Subsequent Transaction is permitted under this Indenture, any such ratio, test or basket shall be required to be satisfied (i) on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any Incurrence of Debt and the use of proceeds thereof) have been consummated and (ii) assuming such Limited Condition Transaction and other transactions in connection therewith (including any Incurrence of Debt and the use of proceeds thereof) have not been consummated.
 
66

ARTICLE 2

THE NOTES
 
Section 2.01           Form and Dating; Terms.
 
(a)           The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A hereto, which is hereby incorporated in and expressly made a part of this Indenture.  The Notes may have notations, legends or endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply with any law, or with any rules of any securities exchange or usage or with the rules of the Depositary or this Indenture, all as may be determined by the officers executing such Notes as evidenced by their execution of the Notes.  Each Note shall be dated the date of its authentication.  The Notes shall be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
 
(b)           Notes issued in global form shall be substantially in the form of Exhibit A hereto (including the Global Notes Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto).  Notes issued in definitive form shall be substantially in the form of Exhibit A attached hereto (but without the Global Notes Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto).  Each Global Note shall represent such of the outstanding Notes as shall be specified in the “Schedule of Exchanges of Interests in the Global Note” attached thereto and each shall provide that it shall represent up to the aggregate principal amount of Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as applicable, to reflect exchanges and redemptions.  Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06.
 
(c)           The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is unlimited.
 
The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture, and the Company, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.  However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
 
67

The Notes shall be subject to repurchase by the Company pursuant to an Offer to Purchase as provided in Section 4.10 or Section 4.14.  The Notes shall not be redeemable, other than as provided in Article 3.
 
Additional Notes ranking pari passu with the Initial Notes may be created and issued from time to time by the Company without notice to or consent of the Holders and shall be consolidated with and form a single class with the Initial Notes and shall have the same terms as to status, redemption or otherwise (other than with respect to the issue date, the purchase price thereof and the date from which the interest accrues) as the Initial Notes; provided that the Company’s ability to issue Additional Notes shall be subject to the Company’s compliance with Section 4.09.  The Notes and any Additional Notes shall be substantially identical other than the issuance dates, offering price and, if applicable, the date from which interest shall accrue.  Except as described under Article 9, the Initial Notes and any Additional Notes subsequently issued under this Indenture will be treated as a single class for all purposes under this Indenture, including waivers, amendments, redemptions and offers to purchase, and shall vote together as one class on all matters with respect to the Notes, provided that, if the Additional Notes are not fungible with the Notes for U.S. federal income tax purposes, the Additional Notes will have a separate CUSIP number, if applicable.  Unless the context requires otherwise, references to “Notes” for all purposes of this Indenture include any Additional Notes that are actually issued.  Any Additional Notes shall be issued with the benefit of an indenture supplemental to this Indenture.
 
In authenticating and delivering Additional Notes, the Trustee shall be entitled to receive and shall be fully protected in conclusively relying upon, in addition to the Opinion of Counsel and Officer’s Certificate required by Section 13.03, an Opinion of Counsel (i) as to the due authorization, execution, delivery, validity and enforceability of such Additional Notes, (ii) stating that the form and terms of such Additional Notes have been established by a supplemental indenture and pursuant to a resolution of the Board of Directors of the Company in conformity with the provisions of this Indenture and (iii) stating that all laws and requirements in respect of the execution and delivery by the Company of such Additional Notes have been complied with.
 
Section 2.02           Execution and Authentication.
 
(a)           At least one Authorized Officer shall execute the Notes on behalf of the Company by manual or facsimile signature.  If an Authorized Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid.
 
(b)           A Note shall not be entitled to any benefit under this Indenture or be valid or obligatory for any purpose until authenticated substantially in the form provided for in Exhibit A attached hereto by the manual signature of an authorized signatory of the Trustee.  The signature shall be conclusive evidence that the Note has been duly authenticated and delivered under this Indenture.
 
68

(c)           On the Issue Date, the Trustee shall, upon receipt of a written order of the Company signed by an Authorized Officer (an “Authentication Order”), authenticate and deliver the Initial Notes.  In addition, at any time and from time to time, the Trustee shall, upon receipt of an Authentication Order, authenticate and deliver any Additional Notes in an aggregate principal amount specified in such Authentication Order for such Additional Notes issued hereunder and, in the case of any issuance of Additional Notes pursuant to Section 2.01, such Authentication Order shall certify that such issuance is in compliance with Section 4.09 and Section 4.12. For the avoidance of doubt, no Opinion of Counsel shall be required in connection with the authentication and delivery of the Initial Notes on the Issue Date.
 
(d)           The Trustee may appoint one or more authenticating agents acceptable to the Company to authenticate Notes.  An authenticating agent may authenticate Notes whenever the Trustee may do so.  Each reference in this Indenture to authentication by the Trustee includes authentication by such agent.  An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Company.
 
Section 2.03           Registrar and Paying Agent.
 
(a)           The Company shall maintain an office or agency in the United States where Notes may be presented for registration of transfer or for exchange (“Registrar”) and at least one office or agency in the United States where Notes may be presented for payment (“Paying Agent”), which shall initially be the Corporate Trust Office of the Trustee.  The Registrar shall keep a register of the Notes and of their transfer and exchange (“Note Register”).  The Company may appoint one or more co-registrars and one or more additional paying agents.  The term “Registrar” includes any co-registrar, and the term “Paying Agent” includes any additional paying agent.  The Company may change any Paying Agent or Registrar without prior notice to any Holder; provided, however, that no such removal shall become effective until (i) acceptance of an appointment by a successor as evidenced by an appropriate agreement entered into by the Company and such successor Registrar or Paying Agent, as the case may be, and delivered to the Trustee and the passage of any waiting or notice periods required by the Depositary’s 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 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 any Agent not a party to this Indenture.  If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.07.  The Company or any Affiliate incorporated or organized within the United States of America may act as Paying Agent (except for purposes of Article 8) or Registrar.
 
69

(b)           The Company initially appoints DTC to act as Depositary with respect to the Global Notes.  The Company initially appoints the Trustee to act as Paying Agent and Registrar for the Notes, for which the Trustee shall be Custodian.  If, at any time, the Trustee is not the Registrar, the Registrar shall make available to the Trustee 10 days prior to each Interest Payment Date and at such other times as the Trustee may reasonably request the names and addresses of the Holders as they appear in the Note Register.
 
Section 2.04           Paying Agent to Hold Money in Trust.
 
The Company shall require each Paying Agent other than the Trustee to agree in writing that such Paying Agent shall hold in trust and as agent for the benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal, premium, if any, or interest, if any, on the Notes, and shall notify the Trustee of any default by the Company in making any such payment.  While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee.  The Company at any time may require a Paying Agent to pay all money held by it to the Trustee.  Upon payment over to the Trustee, a Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for the money.  If the Company or an Affiliate of 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 until such sum of money shall be paid to such Holders or otherwise disposed of as provided in this Indenture, and shall promptly notify the Trustee in writing of any action or failure to act as required by this Section.  Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for the Notes.
 
Section 2.05           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 all Holders.  If the Trustee is not the Registrar, the Company shall furnish to the Trustee in writing at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders.
 
Section 2.06           Transfer and Exchange.
 
(a)           Transfer and Exchange of Global Notes.  Except as otherwise set forth in this Section 2.06, a Global Note may be transferred, in whole and not in part, only to another nominee of the Depositary or to a successor Depositary or a nominee of such successor Depositary.  A beneficial interest in a Global Note may not be exchanged for a Definitive Note unless (i) the Depositary (x) notifies the Company that it is unwilling or unable to continue as Depositary for such Global Note or (y) has ceased to be a “clearing agency” registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Company within 90 days, (ii) there shall have occurred and be continuing a Default with respect to the Notes or (iii) the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of Definitive Notes.  Upon the occurrence of any of the preceding events in (i), (ii) or (iii) above, Definitive Notes delivered in exchange for any Global Note or beneficial interests therein will be registered in the names, and issued in any approved denominations, requested by or on behalf of the Depositary (in accordance with its customary procedures).  Global Notes also may be exchanged or replaced, in whole or in part, as provided in Section 2.07 and Section 2.10.  Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or Section 2.10, shall be authenticated and delivered in the form of, and shall be, a Global Note, except for Definitive Notes issued subsequent to any of the preceding events in (i), (ii) or (iii) above and pursuant to Sections 2.06(c) or (e).  A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a); provided, however, beneficial interests in a Global Note may be transferred and exchanged as provided in Sections 2.06(b) and (c).
 
70

(b)           Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary in accordance with the provisions of this Indenture and the Applicable Procedures.  Transfers of beneficial interests in the Global Notes also shall require compliance with either subparagraph (i) or (ii) below, as applicable:
 
(i)           Transfer of Beneficial Interests in the Same Global Note.  Beneficial interests in any Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in a Global Note.  No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(i).
 
(ii)          All Other Transfers and Exchanges of Beneficial Interests in  Global Notes.  In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(i), the transferor of such beneficial interest must deliver to the Registrar either (A) (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase or (B)(1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (B)(1) above.  Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(g).
 
(c)           Transfer or Exchange of Beneficial Interests for Definitive Notes.
 
71

(i)           Beneficial Interests in Global Notes to Definitive Notes.  If any holder of a beneficial interest in a Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon the occurrence of any of the events in subsection (i), (ii) or (iii) of Section 2.06(a) and satisfaction of the conditions set forth in Section 2.06(b)(ii), the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(g), and the Company shall execute and the Trustee shall authenticate and mail to the Person designated in the instructions a Definitive Note in the applicable principal amount.  Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(i) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from or through the Depositary and the Participant or Indirect Participant.  The Trustee shall mail such Definitive Notes to the Persons in whose names such Notes are so registered.
 
(d)           Transfer and Exchange of Definitive Notes for Beneficial Interests.
 
(i)           Definitive Notes to Beneficial Interests in Global Notes.  A Holder of a Definitive Note may exchange such Note for a beneficial interest in a Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Global Note at any time.  Upon receipt of a written request for such an exchange or transfer, the Trustee shall cancel the applicable Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Global Notes.
 
(e)           Transfer and Exchange of Definitive Notes for Definitive Notes.  Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes.  Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing.  In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the following:
 
(i)           Definitive Notes to Definitive Notes.  A Holder of Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of a Definitive Note.  Upon receipt of a written request to register such a transfer, the Registrar shall register the Definitive Notes pursuant to the instructions from the Holder thereof.
 
(f)            Legends.  The following legends shall appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture:
 
72

(i)           Global Notes Legend.  Each Global Note shall bear a legend in substantially the following form:
 
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.  UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.  UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE COMPANY OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.  OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.  OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
 
(ii)          OID Legend.  Any Note issued with more than de minimis original issue discount for U.S. federal income tax purposes authenticated and delivered hereunder shall bear a legend in substantially the following form:
 
“THIS SECURITY HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR UNITED STATES FEDERAL INCOME TAX PURPOSES.  THE ISSUE PRICE, THE AMOUNT OF OID, THE ISSUE DATE AND THE YIELD TO MATURITY OF THIS SECURITY MAY BE OBTAINED BY CONTACTING THE GENERAL COUNSEL, 277 LAKESHORE ROAD EAST, SUITE 302, OAKVILLE, ONTARIO, L6J 1H9, CANADA, TELEPHONE NUMBER (905) 842-5150.”
 
(g)           Cancellation and/or Adjustment of Global Notes.  At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.11.  At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly, and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction.  If the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
 
73

(h)           General Provisions Relating to Transfers and Exchanges.
 
(i)           To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 or at the Registrar’s request.
 
(ii)          No service charge shall be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but such holder or Holder will be required to pay all taxes due on transfer and the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Section 2.07, Section 2.10, Section 3.06, Section 4.10, Section 4.14 and Section 9.04).
 
(iii)         Neither the Registrar nor the Company shall be required to register the transfer of, or transfer or exchange any, Note selected for redemption or tendered (and not withdrawn) for repurchase in connection with an Offer to Purchase or other tender offer.
 
(iv)         All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
 
(v)          Neither the Company nor the Registrar shall be required (A) to issue, to register the transfer of, or to transfer or exchange any, Notes during a period of 15 days before a selection of Notes is to be redeemed under Section 3.02, (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part, (C) to register the transfer of or to exchange a Note between a Record Date and the next succeeding Interest Payment Date or (D) to register the transfer of or to exchange a Note tendered and not withdrawn in connection with an Offer to Purchase.
 
74

(vi)         Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal (and premium, if any) and interest, if any, on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.
 
(vii)        Upon surrender for registration of transfer of any Note at the office or agency of the Company designated pursuant to Section 2.03, the Company shall execute, and the Trustee shall authenticate and mail, in the name of the designated transferee or transferees, one or more replacement Notes of any authorized denomination or denominations of a like aggregate principal amount.
 
(viii)       At the option of the Holder, Notes may be exchanged for other Notes of any authorized denomination or denominations of a like aggregate principal amount upon surrender of the Notes to be exchanged at such office or agency.  Whenever any Global Notes or Definitive Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and mail, the replacement Global Notes and Definitive Notes which the Holder making the exchange is entitled to in accordance with the provisions of Section 2.06.
 
(ix)         All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile or electronically via .pdf transmission.
 
(x)          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 transfers between or among Depositary participants or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
 
(xi)         The Registrar and the Trustee may require a Holder to furnish appropriate endorsements and transfer documents in connection with any transfer of Notes.
 
Section 2.07           Replacement Notes.
 
If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the ownership and destruction, loss or theft of any Note, the Company shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s requirements are met.  An indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced.  The Company or the Trustee may charge for their expenses in replacing a Note, which may include any expenses of the Trustee.
 
75

Every replacement Note is a contractual obligation of the Company and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.
 
Section 2.08           Outstanding Notes.
 
(a)           The Notes outstanding at any time are all the Notes that have been authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, those described in this Section 2.08 as not outstanding and, solely to the extent provided for in Article 8, Notes that are subject to Legal Defeasance or Covenant Defeasance as provided in Article 8.  Except as set forth in Section 2.09, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note; provided that Notes held by the Company or a Subsidiary will not be deemed to be outstanding for purposes of Section 3.07(b).
 
(b)           If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser, as such term is defined in Section 8-303 of the Uniform Commercial Code in effect in the State of New York.
 
(c)           If the principal amount of any Note is considered paid under Section 4.01, it ceases to be outstanding and interest on it ceases to accrue from and after the date of such payment.
 
(d)           If a Paying Agent (other than the Company, a Subsidiary or any Affiliate thereof) holds, on the maturity date or any redemption date or date for repurchase of the Notes money sufficient to pay Notes payable or to be redeemed or purchased on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.
 
Section 2.09           Treasury Notes.
 
Notwithstanding anything to the contrary as set forth in Section 316(a) of the Trust Indenture Act, in determining whether the Holders of the requisite principal amount of Notes have concurred in any direction, waiver or consent, Notes beneficially owned by the Company, or by any Affiliate of the Company (other than any Plan Sponsor), shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.  Notes so owned that have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to deliver any such direction, waiver or consent with respect to the Notes and that the pledgee is not the Company or any obligor under the Notes or any such Affiliate of the Company or of such other obligor.
 
76

Section 2.10           Temporary Notes.
 
Until definitive Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, 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 and as shall be reasonably acceptable to the Trustee.  Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes upon surrender of such temporary Notes at the office or agency of the Company, without charge to the Holder.  Until so exchanged, the Holders and beneficial holders, as the case may be, of temporary Notes shall be entitled to all of the benefits accorded to Holders, or beneficial holders, respectively, of Notes under this Indenture.
 
Section 2.11           Cancellation.
 
The Company at any time may deliver Notes to the Trustee for cancellation.  The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment.  The Trustee or, at the direction of the Trustee, the Registrar or the Paying Agent and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of canceled Notes in accordance with its customary procedures (subject to the record retention requirement then in effect).  Certification of the disposal of all canceled Notes shall, upon the written request of the Company, be delivered to the Company.  The Trustee shall retain all canceled Notes in accordance with its standard procedures (subject to the record retention requirements then in effect), and copies of the canceled Notes shall be provided to the Company upon the Company’s written request.  The Company may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.  If the Company acquires any of the Notes, such acquisition shall not operate as a redemption or satisfaction of Debt represented by such Notes unless or until the same are delivered to the Trustee for cancellation.  The Trustee shall not authenticate Notes in place of canceled Notes other than pursuant to the terms of this Indenture.
 
Section 2.12           Defaulted Interest.
 
(a)           If the Company defaults in a payment of interest on the Notes, it shall pay, or shall deposit with the Paying Agent money in immediately available funds sufficient to pay, the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01.  The Company shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment, 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 reasonably satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust and as agent for the benefit of the Persons entitled to such defaulted interest as provided in this Section 2.12.  The Company shall fix or cause to be fixed each such special record date and payment date; provided that no such special record date shall be less than 10 days prior to the related payment date for such defaulted interest.  At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) shall send, or cause to be sent, to each Holder a notice that states the special record date, the related payment date and the amount of such interest to be paid.
 
77

(b)           Subject to the foregoing provisions of this Section 2.12 and for greater certainty, 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 interest, which were carried by such other Note.
 
Section 2.13           Additional Amounts.
 
(a)           All payments made by or on behalf of the Company or any Guarantor (each such person who pays or credits such amounts, a “Payor”) under or with respect to the Notes or any Note Guarantee will be made free and clear of, and without deduction or withholding for, or on account of, any and all present or future income, stamp and other taxes, levies, imposts, duties, charges, fees, deductions or withholdings (hereinafter referred to as “taxes”) now or hereafter imposed, levied, collected, withheld or assessed by or on behalf of any jurisdiction in which such Payor is organized, resident or carrying on business for tax purposes or from or through which payments are made by or on behalf of such Payor or any political subdivision or authority of the foregoing that has the power to tax (each a “Taxing Jurisdiction”), unless the deduction or withholding is required by applicable law or by the interpretation or administration thereof by the relevant governmental authority.
 
(b)           At any time a relevant Taxing Jurisdiction requires deductions or withholdings of taxes from any payment made under or in respect of the Notes, the Payor will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amounts received by each Holder (including Additional Amounts), after such deduction or withholding (including withholding or deduction attributable to Additional Amounts payable hereunder), shall not be less than the amount the Holder would have received had no such deduction or withholding been required.
 
78

(c)           However, notwithstanding the foregoing, no Additional Amounts will be payable to a Holder of a Note by any Payor with respect to: (i) taxes that would not have been imposed but for the existence of any present or former connection between the relevant Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of the relevant Holder or beneficial owner, if the relevant Holder or beneficial owner is an estate, nominee, trust, partnership or corporation) and any Taxing Jurisdiction (including without limitation, by virtue of the Holder or beneficial owner being a citizen or resident of, formed pursuant to the laws of, incorporated in or carrying on a business, having a permanent establishment or having a place of business in such jurisdiction), other than solely by reason of the Holder or beneficial owner purchasing, holding or disposing of the Notes; (ii) taxes imposed on, or deducted or withheld from, payments in respect of the Notes if such payments could have been made without such imposition, deduction or withholding of such taxes had such Notes been presented for payment (where presentation is required) within 30 days after the relevant date (except to the extent that the Holder thereof would have been entitled to such Additional Amounts on presenting a Note for payment on the last day of such 30-day period); for this purpose, the “relevant date” in relation to any payments on any Note means: (a) the due date for payment thereof, or (b) if the full amount of the monies payable on such date have not been received by the Trustee on or prior to such due date, the date on which the full amount of such monies having been so received, provided that notice to that effect is duly given to Holders of the Notes in accordance with this Indenture; (iii) taxes imposed or withheld by reason of the failure by the Holder or beneficial owner of such Note to provide certification, information, documents or other evidence concerning the nationality, residence or identity of the Holder or beneficial owner or to make any declaration or similar claim or satisfy any other reporting requirement relating to such matters, within 30 days after a specific written request therefor from a Payor, which is required by law, regulation or administrative practice or applicable treaty as a precondition to exemption from or reduction in the rate of deduction or withholding of all or part of such taxes; (iv) withholding tax under Part XIII of the Income Tax Act (Canada) (the “Tax Act”) that is imposed as a consequence of a Holder or beneficial owner of a Note not dealing at arm’s length (within the meaning of the Tax Act) with a Payor at the time of such payment; (v) any withholding tax under Part XIII of the Tax Act that is imposed as a consequence of a Holder or beneficial owner of a Note being, at any time, a “specified non-resident shareholder” (within the meaning of subsection 18(5) of the Tax Act) of the Company, or, at any time, not dealing at arm’s length (within the meaning of the Tax Act) with a “specified shareholder” (within the meaning of subsection 18(5) of the Tax Act) of the Company; (vi) any estate, inheritance, gift, sales, excise, use, personal property, transfer or similar tax; (vii) any tax or penalty arising from the Holder’s failure to properly comply with the Holder’s obligations imposed under Part XVIII of the Tax Act or the similar provisions of legislation of any other jurisdiction that has entered into an agreement with the United States of America to provide for the implementation of reporting in that jurisdiction in compliance with Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”); or (viii) taxes arising from any combination of the foregoing clauses (i) through (vii).
 
(d)           The Payors will (1) make such withholding or deduction and (2) remit the full amount deducted or withheld to the relevant government authority in accordance with applicable law.  The Payors will furnish to the Trustee, within 30 days after the date the payment of any taxes is due pursuant to applicable law, certified copies of tax receipts evidencing that such payment has been made or other evidence of such payment satisfactory to the Trustee.
 
79

(e)           The Payors, jointly and severally, will indemnify and hold harmless each Holder and beneficial owner of Notes and upon written request reimburse each such Holder and beneficial owner for the amount of (x) any taxes so levied or imposed and paid by such Holder or beneficial owner (including, for greater certainty, taxes imposed and paid pursuant to subsection 215(4) of the Tax Act and section 803 of the Income Tax Regulations (Canada) or any successor provision) as a result of payments made under or with respect to the Notes, (y) any liability (including penalties, interest, additions to tax and reasonable expenses) arising therefrom or with respect thereto, excluding any such liability which arises as a result of the Holder’s or beneficial owner’s failure to pay amounts on a timely basis, and (z) any taxes levied or imposed and paid by such Holder or beneficial owner with respect to any reimbursement under (x) or (y) above; provided, however, that the indemnification or reimbursement obligations provided for in this Section 2.13(e) shall not extend to taxes for which the applicable Holder would not have been eligible to receive payment of Additional Amounts hereunder by virtue of clauses (i) through (viii) of Section 2.13(c) if the Payor had been required to withhold from such payments or to the extent such Holder received Additional Amounts with respect to such payments.
 
(f)            In addition, any amounts to be paid by a Payor on the Notes will be paid net of any deduction or withholding imposed or required pursuant to Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (“FATCA Withholding”).  Neither any Guarantor nor the Company will be required to pay Additional Amounts on account of any FATCA Withholding.
 
(g)           Each Holder entitled to any Additional Amounts shall cooperate, to the extent described in clause (iii) of Section 2.13(c) above, with the Company and the Trustee in providing any information or documentation that is required by applicable law or by the taxing authority of the relevant Taxing Jurisdiction and that is reasonably requested in writing by the Company or the Trustee to confirm the identity and/or tax status of such Holder and any affected beneficial owner and to assist the Company or Trustee in determining the applicable withholding tax rate and the amount of Additional Amounts payable in respect thereof.
 
(h)           At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or any Note Guarantee is due and payable, if a Payor will be obligated to pay Additional Amounts with respect to such payment, the Company will deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date net of any taxes required to be withheld or deducted.
 
(i)            In addition, the Payor will pay any stamp, issue, registration, court, documentation, excise or other similar taxes, charges and duties, including any interest, penalties and any similar liabilities with respect thereto, imposed by any Taxing Jurisdiction at any time in respect of the execution, issuance, registration or delivery of the Notes, any Note Guarantee, this Indenture or any other document or instrument referred to hereunder or thereunder and any such taxes, charges or duties imposed by a Taxing Jurisdiction on any payments made pursuant to the Notes or as a result of, or in connection with, the enforcement of the Notes, any Note Guarantee and/or any other such document or instrument.
 
80

(j)            The obligations under this Section 2.13 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to the Payor and to any jurisdiction in which such successor is organized or is otherwise resident or carrying on business for tax purposes or any jurisdiction from or through which payment is made by such successor or its respective agents.
 
(k)           Whenever this Indenture refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note or any Note Guarantee, such reference shall be deemed to include the payment of Additional Amounts or indemnification payments as described in this Section 2.13, to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
 
Section 2.14           CUSIP and ISIN Numbers.
 
The Company in issuing the Notes may use CUSIP or ISIN numbers (if then generally in use) and if it does, the Trustee shall use CUSIP or ISIN numbers in notices of redemption or exchange or in Offers to Purchase as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of redemption or exchange or in Offers to Purchase and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or exchange or Offer to Purchase shall not be affected by any defect in or omission of such numbers.  The Company shall promptly notify the Trustee in writing of any change in the CUSIP or ISIN numbers.
 
Section 2.15           Computation of Interest.
 
(a)           Interest shall be computed on the basis of a 360-day year comprised of twelve 30-day months.
 
(b)           For purposes of the Interest Act (Canada), whenever any interest or fee under the Notes or this Indenture is calculated using a rate based on a number of days less than a full year, such rate determined pursuant to such calculation, when expressed as an annual rate, is equivalent to (x) the applicable rate, (y) multiplied by the actual number of days in the relevant year of calculation, and (z) divided by the number of days based on which such rate is calculated.  The principle of deemed reinvestment of interest does not apply to any interest calculation under the Notes or this Indenture.  The rates of interest stipulated in the Notes and this Indenture are intended to be nominal rates and not effective rates or yields.  The Grantors confirm that they fully understand and are able to calculate each rate of interest applicable to the Notes based on the methodology for calculating per annum rates provided for in this Indenture. The Trustee agrees that, if requested in writing by the Company, the Trustee shall calculate the nominal and effective per annum rate of interest on the Notes outstanding at any time and provide such information to the Company promptly following such request; provided that, any error in any such calculation, or any failure to provide such information on request, shall not relieve the Company or any other Grantor of any of its First Priority Notes Obligations, nor result in any liability to the Trustee or any other First Priority Notes Secured Parties. The Grantors hereby irrevocably agree not to plead or assert, whether by way of defense or otherwise, in any proceeding relating to the Notes Documents, that the interest payable under the Notes Documents and the calculation thereof has not been adequately disclosed to it, whether pursuant to Section 4 of the Interest Act (Canada) or any other applicable law or legal principle.
 
81

ARTICLE 3

REDEMPTION
 
Section 3.01           Notices to Trustee.
 
If the Company elects to redeem Notes pursuant to Section 3.07 or Section 3.09, it shall furnish to the Trustee, at least ten Business Days before notice of redemption is required to be sent or caused to be sent to Holders pursuant to Section 3.03 (unless a shorter notice shall be satisfactory to the Trustee) but not more than 60 days before a redemption date, an Officer’s Certificate setting forth: (1) the paragraph or subparagraph of such Note or Section of this Indenture pursuant to which the redemption shall occur; (2) the redemption date; (3) the principal amount of the Notes to be redeemed; and (4) the redemption price, if then ascertainable.
 
Section 3.02           Selection of Notes to Be Redeemed or Purchased.
 
(a)           If less than all of the Notes are to be redeemed pursuant to Section 3.07 or purchased in an Offer to Purchase at any time, the Trustee shall select the Notes to be redeemed or purchased (1) if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the Notes are listed or (2) if the Notes are not so listed, on a pro rata basis, by lot or by such other method as the Trustee in its sole discretion shall deem fair and appropriate, all in accordance with the Applicable Procedures of the Depositary in the case of Global Notes.  In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or purchased shall be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption date by the Trustee from the then outstanding Notes not previously called for redemption or purchase. The Trustee shall not be liable for any selections made by it in accordance with this Section 3.02.
 
(b)           The Trustee shall promptly notify the Company in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased.  Notes and portions of Notes selected shall be in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof; no Notes of $2,000 or less shall be redeemed in part, except that, if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not $2,000 or an integral multiple of $1,000 in excess thereof, shall be redeemed or purchased.  Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.
 
82

(c)           After the redemption date, upon surrender of a Note to be redeemed in part only, a new Note or Notes in principal amount equal to the unredeemed portion of the original Note, representing the same Debt to the extent not redeemed, shall be issued in the name of the Holder of the Notes upon cancellation of the original Note (or appropriate book entries shall be made to reflect such partial redemption).
 
Section 3.03           Notice of Redemption.
 
(a)           The Company shall send (or cause to be sent, in the case of Notes held in book-entry form, by electronic transmission) notices of redemption of Notes at least 15 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed pursuant to this Article 3 at such Holder’s registered address or otherwise in accordance with the Applicable Procedures of the Depositary, except that redemption notices may be sent more than 60 days prior to a redemption date if the notice is issued in connection with Article 8 or Article 11.
 
(b)           The notice shall identify the Notes to be redeemed (including CUSIP and ISIN number, if applicable) and shall state:
 
(1)          the redemption date;
 
(2)          the redemption price, including the portion thereof representing any accrued and unpaid interest, if any; provided that, in connection with a redemption under Section 3.07(a), the notice need not set forth the redemption price but only the manner of calculation thereof;
 
(3)          if any Note is to be redeemed in part only, the portion of the principal amount of that Note that is to be redeemed;
 
(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;
 
(6)          if applicable, that such redemption shall be subject to the satisfaction of one or more conditions precedent (including the consummation of a debt financing, Qualified Equity Offering or other corporate transaction);
 
83

(7)          that, subject to the satisfaction of any condition precedent specified in such notice, unless the Company defaults in making such redemption payment or the Paying Agent is prohibited from making such payment pursuant to the terms of this Indenture, interest on Notes called for redemption ceases to accrue on and after the redemption date;
 
(8)          the paragraph or subparagraph of the Notes or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and
 
(9)          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.
 
(c)           At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at the Company’s expense; provided that the Company shall have delivered to the Trustee, at least five Business Days before notice of redemption is required to be sent or caused to be sent to Holders pursuant to this Section 3.03 (unless a shorter notice shall be satisfactory to the Trustee), an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in Section 3.03(b).
 
Section 3.04           Effect of Notice of Redemption.
 
Once notice of redemption is sent in accordance with Section 3.03, Notes called for redemption become due and payable on the redemption date at the redemption price. Any redemption and notice of redemption (other than in connection with a defeasance or satisfaction and discharge of this Indenture) may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent (including the consummation of a debt financing, Qualified Equity Offering or other corporate transaction). If such redemption 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 as any or all of such conditions shall be satisfied or such redemption may not occur and such notice may be rescinded in the event that any or all of 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 designated by the Company in such notice; provided that any such payment or performance occurs in accordance with this Indenture and no such designation shall relieve the Company from making such payment or performing such obligations if such other Person so designated shall fail to do the same in accordance with this Indenture.
 
The notice, if sent in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice.  In any case, failure to give such notice or any defect in the notice to the Holder of any Note designated for redemption in whole or in part shall not affect the validity of the proceedings for the redemption of any other Note. Subject to Section 3.05, on and after the redemption date, interest ceases to accrue on Notes or portions of Notes called for redemption.
 
84

Section 3.05           Deposit of Redemption or Purchase Price.
 
(a)           By no later than 11:00 a.m.  (New York City time) on the redemption or purchase date, the Company shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of, and accrued and unpaid interest, if any, on, all Notes to be redeemed or purchased on that date.  The Paying Agent shall promptly mail to each Holder whose Notes are to be redeemed or repurchased the applicable redemption or purchase price thereof and accrued and unpaid interest, if any, thereon.  The Trustee or the Paying Agent shall 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 and unpaid interest, if any, on, all Notes to be redeemed or purchased.
 
(b)           If the Company complies with the provisions of Section 3.05(a), on and after the redemption or purchase date, interest shall 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 a Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest, if any, to the redemption or purchase date shall be paid on the relevant Interest Payment Date to the Person in whose name such Note was registered at the close of business on such Record Date, and no additional interest shall be payable to Holders whose Notes shall be subject to redemption or purchase by the Company.  If any Note called for redemption or purchase shall not be so paid upon surrender for redemption or purchase because of the failure of the Company to comply with Section 3.05(a), interest, if any, 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 accrued to the redemption or purchase date not paid on such unpaid principal, in each case, at the rate provided in the Notes and in Section 4.01.
 
Section 3.06           Notes Redeemed or Purchased in Part.
 
Upon surrender of a Note that is redeemed or purchased in part, the Company shall issue and, upon receipt of an Authentication Order, the Trustee shall promptly authenticate and mail to the Holder (or cause to be transferred by book entry) at the expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered representing the same Debt to the extent not redeemed or purchased; provided that each new Note shall be in a minimum denomination of $2,000 or an integral multiple of $1,000 in excess thereof.  It is understood that, notwithstanding anything in this Indenture to the contrary, only an Authentication Order and not an Opinion of Counsel or Officer’s Certificate is required for the Trustee to authenticate such new Note.
 
Section 3.07           Optional Redemption.
 
85

(a)           The Notes may be redeemed on any one or more occasions, in whole or in part, at any time prior to [    ], 2020, at the option of the Company upon not less than 15 nor more than 60 days’ prior notice mailed by first class mail (and/or, to the extent permitted by Applicable Procedures or regulations, transmitted electronically) to each Holder’s registered address, at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed plus the Applicable Premium, plus accrued and unpaid interest, if any, to, but not including, the applicable redemption date (subject to the right of registered Holders of the Notes on a relevant Record Date to receive interest due on a relevant Interest Payment Date).
 
(b)           At any time prior to [    ], 2020, the Company may at its option, with the net proceeds of one or more Qualified Equity Offerings, redeem on any one or more occasions up to 40% of the aggregate principal amount of the outstanding Notes (including Additional Notes) at a Redemption Price equal to 108.000% of the principal amount of the Notes redeemed, plus accrued and unpaid interest thereon, if any, to, but not including, the redemption date (subject to the right of registered Holders of the Notes on a relevant Record Date to receive interest due on a relevant Interest Payment Date); provided that (1) at least 50% of the aggregate principal amount of Notes originally issued under this Indenture (calculated after giving effect to the original issuance of any Additional Notes) remains outstanding immediately after the occurrence of any such redemption (excluding Notes held by the Company or its Subsidiaries) and (2) any such redemption occurs within 90 days following the closing of any such Qualified Equity Offering.
 
(c)           Except pursuant to clause (a) or (b) of this Section 3.07 or pursuant to Section 3.09, the Notes shall not be redeemable at the Company’s option prior to [    ], 2020.
 
(d)           The Notes may be redeemed on any one or more occasions, in whole or in part, at any time on or after [    ], 2020, at the option of the Company upon not less than 15 nor more than 60 days’ prior notice at the following Redemption Prices (expressed as percentages of the principal amount to be redeemed) set forth below, plus accrued and unpaid interest, if any, to, but not including, the redemption date (subject to the right of registered Holders of the Notes on a relevant Record Date to receive interest due on a relevant Interest Payment Date), if redeemed during the 12-month period beginning on [   ] of the years indicated below:
 
Year
 
Percentage
 
2020          
   
102.000
%
2021          
   
101.000
%
2022 and thereafter          
   
100.000
%
 
(e)           Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06.
 
Section 3.08           Mandatory Redemption; Open Market Purchases.
 
86

The Company will not be required to make mandatory redemption or sinking fund payments with respect to the Notes.
 
The Company and its Affiliates may, at any time and from time to time, acquire or purchase Notes by means other than a redemption, including by open market purchases, tender offers, privately negotiated transactions or otherwise and at prices as well as with such consideration as the Company and its Affiliates may determine, subject to compliance with applicable securities laws and regulations including, without limitation, Canadian Securities Laws, so long as such acquisition does not otherwise violate the terms of this Indenture.
 
Section 3.09           Tax Redemption.
 
(a)           The Company, at its option, may redeem all but not part of the Notes, upon not less than 15 nor more than 60 days’ prior notice at a redemption price equal to 100% of the aggregate principal amount thereof, together with accrued and unpaid interest, if any, to, but not including, the date fixed by the Company for redemption (a “Tax Redemption Date”) and all Additional Amounts (if any) then due and which will become due on the Tax Redemption Date as a result of the redemption or otherwise (subject to the right of Holders on the relevant Record Date to receive interest due on the relevant Interest Payment Date), if, due to a Change in Tax Law, the Company, in accordance with the terms of the Notes, would become obligated, on the next date on which any amount would be payable with respect to the Notes, to pay to the Holder or beneficial owner of any Note any Additional Amounts, and the Company cannot avoid any such payment obligation by taking reasonable measures available (including making payment through a paying agent located in another jurisdiction).
 
(b)           Notice of the Company’s intent to redeem the Notes pursuant to the provisions set forth in Section 3.09(a) shall not be effective until such time as the Company delivers to the Trustee both: (i) a certificate signed by two of its Authorized Officers stating that the Company cannot avoid its obligation to pay Additional Amounts by the Company taking reasonable measures available (including making payment through a paying agent located in another jurisdiction); and (ii) an opinion of independent legal counsel reasonably acceptable to the Trustee and qualified to practice law in the relevant Taxing Jurisdiction stating that the applicable Payor is obligated to pay Additional Amounts because of a Change in Tax Law.  The Trustee will accept and shall be entitled to rely on such certificate and opinion of counsel as sufficient evidence of the existence and satisfaction of the conditions set forth in Section 3.09(a), which will be conclusive and binding on the Holders.
 
(c)           This Section 3.09 will apply mutatis mutandis to any Surviving Entity and any jurisdiction in which any such Surviving Entity is incorporated or organized or engaged in business or resident for tax purposes or any jurisdiction from or through which payment is made by or on behalf of such Surviving Entity on the Notes, and any political subdivision thereof or therein.
 
87

(d)           Any redemption pursuant to Section 3.09 shall be made pursuant to the provisions of Section 3.01 through 3.06.
 
ARTICLE 4

COVENANTS
 
Section 4.01           Payment of Notes.
 
(a)           The Company shall pay or cause to be paid the principal, premium, if any, and interest, if any, on the Notes on the dates and in the manner provided in the Notes.  Principal, premium, if any, and interest, if any, shall be considered paid on the date due if the Paying Agent, if other than one of the Company or a Subsidiary, holds as of 11:00 a.m., New York City time, on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay the principal, premium, if any, and interest then due.
 
(b)           The Company shall pay interest (including Post-Petition Interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, at the rate equal to the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including Post-Petition Interest in any proceeding under any Bankruptcy Law) on overdue installments of interest, if any, (without regard to any applicable grace period) at the same rate to the extent lawful.
 
Section 4.02           Maintenance of Office or Agency.
 
The Company shall maintain an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company and the Guarantors in respect of the Notes and this Indenture may be served.  The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency.  If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
 
The Company may also from time to time designate additional offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations.  The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
 
The Company hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.03.
 
Section 4.03           Reports and Other Information.
 
88

(a)           For so long as any Notes are outstanding, the Company will furnish to the Trustee:
 
(1)          on or prior to the later of (A) 90 days after the end of each fiscal year of the Company or (B) if the Company is then a “reporting issuer” (or its equivalent) in any province or territory of Canada, the date on which the Company is required to file (after giving effect to any available extension) such financial information pursuant to Canadian Securities Laws, annual financial information of the Company consisting of: (i) “Management’s Discussion and Analysis of Financial Condition and Results of Operations” (“MD&A”) for the fiscal year then ended; (ii) audited financial statements prepared in accordance with IFRS; and (iii) a presentation of Adjusted EBITDA of the Company which will be included in the MD&A for the fiscal year then ended and derived from such financial statements;
 
(2)          on or prior to the later of (A) 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Company (commencing with the fiscal quarter ending [   ], 2018) or (B) if the Company is then a “reporting issuer” (or its equivalent) in any province or territory of Canada, the date on which the Company is required to file (after giving effect to any available extension) such financial information pursuant to Canadian Securities Laws, quarterly financial information of the Company consisting of: (i) an MD&A for the fiscal quarter and year-to-date period then ended; (ii) unaudited quarterly financial statements prepared in accordance with IFRS; and (iii) a presentation of Adjusted EBITDA of the Company which will be included in the MD&A for the fiscal quarter and year-to-date period then ended and derived from such financial statements;
 
(3)          on or prior to the tenth Business Day following the occurrence of each event that is required pursuant to Canadian Securities Laws to be reported in a material change report under National Instrument 51-102 “Continuous Disclosure Obligations” (a “Material Change Report”), if the Company is then a “reporting issuer” (or its equivalent) in any province or territory of Canada, a copy of the Material Change Report containing substantially all of the information that is required to be contained in such a report pursuant to Canadian Securities Laws; provided, however, that no such Material Change Report will be required to be furnished to the Trustee if the Company determines in its good faith judgment that such event is not reasonably expected to be material to the Holders or the business, operations or capital of the Company and its Restricted Subsidiaries, taken as a whole; and
 
(4)          so long as the Company is obligated to make such filings or furnish such information, any filings or information filed with and made publicly available by the applicable Canadian securities regulators under the System for Electronic Document Analysis and Retrieval (“SEDAR”) website (or any successor system).
 
(b)           If any document of the type contemplated in clauses (1), (2), (3) and (4) of Section 4.03(a) is filed and publicly available on SEDAR, the Company shall have, and shall be deemed to have, satisfied all requirements under this Indenture to furnish such document to the Trustee upon the filing of such document with the Canadian securities regulators for public viewing on SEDAR; provided, however, that the Company shall provide a copy of any such document to the Trustee within a reasonable period of time if the Trustee makes a request therefor to the Company.
 
89

(c)           So long as any Notes are outstanding, (1) within 10 Business Days after furnishing or being deemed to have furnished to the Trustee annual financial information required by Section 4.03(a)(1), the Company will hold a conference call to discuss such reports and the results of operations for the relevant reporting period (it being understood that such conference call may be the same conference call as with the Company’s equity investors and analysts) and (2) (i) with respect to the reports required by clauses (1), (2) and (3) of Section 4.03(a) above, the Company shall file such reports electronically on the SEDAR website (or any successor system) or (ii) if reports required by clauses (1), (2) and (3) of Section 4.03(a) above are not available on SEDAR (or other successor electronic filing system) the Company will also maintain a password protected website via an Intralinks site or other similar password protected website to which Holders of the Notes and prospective purchasers of Notes are given access upon request to the Company and to which all of the reports required by this Section 4.03 are posted.
 
(d)           In addition, the Company will also hold quarterly conference calls for the Holders of the Notes to discuss financial information for the previous quarter (it being understood that such quarterly conference call may be the same conference call as with the Company’s equity investors and analysts).  The conference call will be following the last day of each fiscal quarter of the Company and not later than 10 Business Days from the time that the Company furnishes or is deemed to have furnished the financial information required by Section 4.03(a)(2).
 
(e)           No fewer than two days prior to any annual or quarterly conference call, as applicable, the Company will issue a press release announcing the time and date of such conference call and providing instructions for Holders, securities analysts and prospective investors to obtain access to such call.
 
(f)            Notwithstanding anything herein to the contrary, for purposes of Section 6.01(a)(4), (1) the Company will be deemed not to have failed to comply with any of its obligations under Section 4.03(a)(1) until 15 days after the date any financial information thereunder is due under Canadian Securities Laws, and (2) the Company will be deemed not to have failed to comply with any of its obligations under Section 4.03(a)(2) until 15 days after the date any financial information thereunder is due under Canadian Securities Laws.  For greater certainty, if the Company from time to time files any amendment or amendment and restatement of any document referred to in Section 4.03(a), the filing of any such amendment or amendment and restatement thereof shall not constitute a failure of the Company to comply with its obligations in such covenant and shall not constitute an Event of Default.
 
(g)           Delivery of the foregoing reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein or determinable from information contained therein, or the Company’s compliance with any of its covenants under this Indenture (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificates).
 
90

(h)           The Company will deliver or cause to be delivered to the Trustee, within 10 calendar days of the occurrence thereof, an Officer’s Certificate providing notice of any of the following events, including in reasonable detail a summary of such event or events and the Company’s plans in respect thereof:
 
(A)       any Change of Control, including, without limitation, the name of the Person(s) acquiring control of the Company, the amount and form of the consideration used (e.g., cash, securities or a combination thereof), the basis of the control, the date and description of the transaction resulting in the Change of Control, the percentage of beneficial ownership of voting securities of the Company owned by the Person gaining control, the identity of the Person from whom control was assumed and the effect of such Change of Control, if any, on any material agreements or arrangements of the Company; and
 
(B)        an Event of Default specified in clause (7) or (8) of Section 6.01(a).
 
(i)            To the extent any information is not provided as specified in this Section 4.03 and such information is subsequently provided, 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; provided, however, that this Section 4.03(i) shall not apply to the Company’s obligations under Section 4.03(h).
 
Section 4.04           Compliance Certificate.
 
(a)           The Company shall deliver to the Trustee and the Collateral Agent, on an annual basis at the same time as the Company furnishes its annual financial information referred to in Section 4.03(a)(1), an Officer’s Certificate stating that a review of the activities of the Company and its Restricted Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Authorized Officer with a view to determining whether the Company and each Guarantor have kept, observed, performed and fulfilled their obligations under this Indenture, and further stating, as to such Authorized Officer signing such certificate, that to the best of his or her knowledge, the Company and each Guarantor have kept, observed, performed and fulfilled each and every condition and covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions, covenants and conditions of this Indenture (or, if a Default shall have occurred, describing all such Defaults of which he or she may have knowledge and what action the Company and each Guarantor are taking or propose to take with respect thereto).
 
(b)           When any Default has occurred and is continuing under this Indenture, or if the Trustee or the holder of any other evidence of Debt of the Company or any Subsidiary gives any notice or takes any other action with respect to a claimed Default, the Company shall promptly (which shall be no more than 10 Business Days following the date on which the Company becomes aware of such Default, receives such notice or becomes aware of such action, as applicable) send to the Trustee an Officer’s Certificate specifying such event, its status and what action the Company is taking or proposes to take with respect thereto.
 
91

Section 4.05           Taxes.
 
The Company shall pay, and shall cause each of its Restricted Subsidiaries to pay, prior to delinquency, all material taxes, assessments and governmental levies except such as are contested in good faith and by appropriate negotiations or proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders.
 
Section 4.06           Stay, Extension and Usury Laws.
 
The Company and each Guarantor covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, 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 Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it 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.
 
Section 4.07           Restricted Payments.
 
(a)           The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment; provided that from and after January 1, 2019, the Company may make Restricted Payments if, at the time of and after giving effect to the proposed Restricted Payment:
 
(1)          no Event of Default shall have occurred and be continuing or will occur as a consequence thereof;
 
(2)          (x) with respect to Restricted Payments other than any Junior Financing Payment or Restricted Investment, immediately after giving effect to such Restricted Payment on a Pro Forma Basis, (i) the Senior Secured Net Leverage Ratio shall not exceed 4.00:1.00 and (ii) the Total Net Leverage Ratio shall not exceed 4.50:1.00, and (y) with respect to Restricted Payments constituting Junior Financing Payments or Restricted Investments, immediately after giving effect to such Restricted Payment on a Pro Forma Basis, (i) the Senior Net Secured Leverage Ratio shall not exceed 4.00:1.00 and (ii) the Total Net Leverage Ratio shall not exceed 4.75:1.00; and
 
(3)          after giving effect to such Restricted Payment on a Pro Forma Basis, the aggregate amount expended or declared for all Restricted Payments made on or after [ ], 2018 (the “Reference Date”) (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6) (7), (8), (9) and (10) of Section 4.07(b)) shall not exceed the sum (without duplication) of:
 
92

(i)           50% of the Consolidated Net Income (or, if Consolidated Net Income shall be a deficit, minus 100% of such deficit) of the Company accrued on a cumulative basis during the period (taken as one accounting period) from the Reference Date and ending on the last day of the most recently ended fiscal quarter for which internal financial information is available at the time of such Restricted Payment; plus
 
(ii)          100% of the aggregate net proceeds (including the Fair Market Value of property other than cash) received by the Company subsequent to the Reference Date either (i) as a contribution to its common equity capital or (ii) from the issuance and sale (other than to a Subsidiary) of its Qualified Capital Interests, including Qualified Capital Interests issued upon the conversion or exchange of Debt (including Redeemable Capital Interests) of the Company, and from the exercise of options, warrants or other rights to acquire such Qualified Capital Interests (other than, in each case, Capital Interests or Debt issued or sold to a Subsidiary of the Company); plus
 
(iii)         100% of the net reduction in Restricted Investments, made by the Company or any Restricted Subsidiary subsequent to the Reference Date, in any Person, resulting from (i) payments of interest on Debt, dividends, repayments of loans or advances, or any sale or disposition of such Restricted Investments (but only to the extent such items are not included in the calculation of Consolidated Net Income), or (ii) the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary (or the causing of a Person that is not a Subsidiary to become a Restricted Subsidiary), not to exceed in the case of any Person the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person subsequent to the Reference Date.
 
(b)           Notwithstanding the provisions of Section 4.07(a), the Company and its Restricted Subsidiaries may take the following actions:
 
(1)          the payment of any dividend on Capital Interests in the Company or a Restricted Subsidiary or the consummation of any irrevocable redemption within 60 days after declaration thereof or the giving of such irrevocable notice, as applicable, if, at the declaration date or notice thereof, such payment was permitted by the foregoing provisions of this Section 4.07;
 
(2)          the purchase, repurchase, redemption, defeasance or other acquisition or retirement of any Capital Interests of the Company by conversion into, or by or in exchange for, Qualified Capital Interests, or out of net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of Qualified Capital Interests of the Company; provided, however, that the net cash proceeds from such sale of Qualifying Capital Interests will be excluded from Section 4.07(a)(3)(ii) to the extent applied to any such purchase, repurchase, redemption, defeasance or other acquisition or retirement;
 
93

(3)          the redemption, defeasance, repurchase or acquisition or retirement for value of any Junior Financing out of the net cash proceeds of a substantially concurrent issue and sale (other than to a Subsidiary of the Company) of (x) Refinancing Debt of the Company or such Guarantor, as the case may be, Incurred in accordance with this Indenture or (y) Qualified Capital Interests of the Company;
 
(4)          so long as no Event of Default has occurred and is continuing, the purchase, redemption, retirement or other acquisition for value of Capital Interests in the Company or any Parent Entity (or any payments to a Parent Entity for the purposes of permitting any such repurchase) held by directors, officers, consultants, employees, former directors, former officers, former consultants or former employees of the Company or any Restricted Subsidiary (or their Immediate Family Members, estates or beneficiaries under their estates) upon death, disability, retirement or termination of employment or service or alteration of employment or service status or pursuant to the terms of any agreement under which such Capital Interests were issued (including any management equity plan or stock option plan or any other management or employee benefit plan or agreement, or any stock subscription or shareholder agreement) and, for the avoidance of doubt, including any principal and interest payable on any promissory notes issued by the Company or any Parent Entity in connection with such repurchase, retirement or other acquisition; provided that the aggregate cash consideration paid for such purchase, redemption, retirement or other acquisition of such Capital Interests does not exceed $10 million in any calendar year; provided, further, that any unused amounts in any calendar year may be carried forward; provided, 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 or any of its Restricted Subsidiaries from the sale of Qualified Capital Interests of the Company or any direct or indirect Parent Entity of the Company (to the extent contributed to the Company) to directors, officers, employees or consultants of the Company and its Restricted Subsidiaries that occurs after the Issue Date; provided, however, 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 4.07(a)(3); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date (provided, however, that the Company may elect to apply all or any portion of the aggregate increase contemplated by the proviso of this clause (4) in any calendar year and, to the extent any payment described under this clause (4) is made by delivery of Debt and not in cash, such payment shall be deemed to occur only when, and to the extent, the obligor on such Debt makes payments with respect to such Debt);
 
(5)          dividend adjustments and repurchases of Capital Interests deemed to occur upon the exercise of stock options, warrants or other convertible or exchangeable securities or the vesting of restricted stock units or deferred stock units (including any management equity plan or stock option plan or any other management or employee benefit plan or agreement, or any stock subscription or shareholder agreement);
 
(6)          Restricted Payments (A) to make cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Interests of the Company or the vesting of restricted stock units or deferred stock units and (B) consisting of: (i) payments made or expected to be made in respect of withholding or similar taxes or brokerage fees payable by any future, present or former officers, directors, employees, members of management or consultants of the Company, any Restricted Subsidiary or any Parent Entity, in each case solely to the extent such taxes relate to the foregoing persons’ ownership of Capital Interests in the Company; and/or (ii) repurchases of Capital Interests in consideration of the payments described in clause (i), including demand repurchases in connection with the exercise of stock options or the vesting of restricted stock units or deferred stock units;
 
94

(7)          so long as no Event of Default has occurred and is continuing or would result therefrom, Restricted Payments constituting Junior Financing Payments in an aggregate amount not to exceed the greater of (x) $23 million and (y) 1.0% of Consolidated Total Assets;
 
(8)          the extension of credit that constitutes intercompany Debt, the Incurrence of which is permitted pursuant to clauses (5), (6) and (7) of the definition of “Permitted Debt” hereunder;
 
(9)          as required by the terms of contracts of the Company or any Restricted Subsidiary that are in effect on the Issue Date and Restricted Payments made pursuant to the Transactions; and
 
(10)        the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of any Junior Financing (A) at a purchase price not greater than 101% of the principal amount of such Junior Financing in the event of a change of control in accordance with provisions similar to Section 4.14 or (B) at a purchase price not greater than 100% of the principal amount thereof in accordance with provisions similar to Section 4.10; provided that, prior to or simultaneously with such purchase, repurchase, redemption, defeasance or other acquisition or retirement, the Company has complied with its obligations set forth in Section 4.14 of this Indenture;
 
(c)           If the Company makes a Restricted Payment which, at the time of the making of such Restricted Payment, in the good faith determination of the Company, would be permitted under the requirements of this Indenture, such Restricted Payment shall be deemed to have been made in compliance with this Indenture notwithstanding any subsequent adjustment made in good faith to the Company’s financial statements affecting Consolidated Net Income.
 
(d)           The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of such Restricted Payment of the assets or securities proposed to be transferred or issued by the Company or any of its Restricted Subsidiaries, as the case may be, pursuant to such Restricted Payment.
 
(e)           For purposes of determining compliance with this Section 4.07, in the event that a proposed Restricted Payment or Investment (or a portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in clauses (1) to (10) of Section 4.07(b) and/or one or more of the clauses contained in the definition of “Permitted Investments” hereunder, or is entitled to be made pursuant to Section 4.07(a), 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) among such clauses (1) to (10) of Section 4.07(b), and/or one or more of such clauses contained in the definition of “Permitted Investments” hereunder, or Section 4.07(a), in each case, in a manner that otherwise complies with this Section 4.07.
 
95

(f)            Notwithstanding anything in this Section 4.07, no Investment may be made in any Unrestricted Subsidiary consisting of Intellectual Property which is material to the business of the Company and its Restricted Subsidiaries, taken as a whole.
 
(g)            For purposes of determining compliance with any U.S. dollar denominated restriction on Restricted Payments, the U.S. dollar equivalent of a Restricted Payment denominated in another currency shall be calculated based on the relevant currency exchange rate in effect on the date the Company or the Restricted Subsidiary, as the case may be, first commits to such Restricted Payment.
 
Section 4.08           Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.
 
(a)           The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, cause or suffer to exist or become effective or enter into any encumbrance or restriction (other than pursuant to this Indenture or any law, rule, regulation or order) on the ability of any Restricted Subsidiary to:
 
(1)          pay dividends or make any other distributions on its Capital Interests to the Company or any of its Restricted Subsidiaries or pay any Debt owed to the Company or any of its Restricted Subsidiaries;
 
(2)          make loans or advances to the Company or any Restricted Subsidiary; or
 
(3)          transfer any of its property or assets to the Company or any Restricted Subsidiary.
 
(b)           However, the preceding provisions shall not prohibit the following encumbrances or restrictions existing under or by reason of:
 
(1)          any encumbrance or restriction in existence on the Issue Date, including those under the Credit Agreement, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings, in the good faith judgment of the Company and conclusively evidenced by an Officer’s Certificate, are no more restrictive in any material respect, taken as a whole, with respect to such dividend or other payment restrictions than those contained in these agreements on the Issue Date or refinancings thereof;
 
(2)          any encumbrance or restriction which exists with respect to an acquired property in existence at the time of such acquisition pursuant to an agreement, so long as the encumbrances or restrictions in any such agreement relate solely to the property so acquired (and are not or were not created in anticipation of or in connection with the acquisition thereof);
 
96

(3)          any encumbrance or restriction which exists with respect to a Person that becomes a Restricted Subsidiary or merges or amalgamates with or into a Restricted Subsidiary of the Company on or after the Issue Date, which is in existence at the time such Person becomes a Restricted Subsidiary, but not created in connection with or in anticipation of such Person becoming a Restricted Subsidiary, and which is not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person becoming a Restricted Subsidiary;
 
(4)          any encumbrance or restriction under the terms of Refinancing Debt Incurred to renew, refund, replace, refinance or extend any agreement containing any encumbrance or restriction referred to in the foregoing clauses (1) through (3), so long as the encumbrances and restrictions contained in any such Refinancing Debt are no less favorable in any material respect to the Holders than the encumbrances and restrictions contained in the agreements governing the Debt being renewed, refunded, replaced, refinanced, or extended, in the good faith judgment of the Company and conclusively evidenced by an Officer’s Certificate;
 
(5)          customary provisions restricting subletting or assignment of any lease, contract, or license of the Company or any Restricted Subsidiary or any rights thereunder;
 
(6)          any encumbrance or restriction by reason of applicable law, rule, regulation or order;
 
(7)          any encumbrance or restriction under the Notes Documents;
 
(8)          any encumbrance or restriction under a contract for the sale or other disposition of assets or Capital Interests, including, without limitation, any agreement for the sale or other disposition of a Subsidiary, that restricts distributions of the applicable assets or Capital Interests to be issued or sold, or of any assets of a Subsidiary to be sold, pending such sale or other disposition;
 
(9)          restrictions on cash and other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
 
(10)        customary provisions and/or restrictions with respect to the disposition or distribution of property, securities or assets in joint venture agreements, asset sale agreements, stock sale agreements (including underwriting agreements), sale leaseback agreements and other similar agreements;
 
(11)        any restriction with respect to the Company or a Restricted Subsidiary (or any of its property or assets) imposed by customary provisions in Hedging Obligations or Swap Contracts, in each case, not entered into for speculative purposes;
 
97

(12)        Purchase Money Debt and Capital Lease Obligations permitted under this Indenture for property acquired in the ordinary course of business that impose restrictions on that property so acquired of the nature described in Section 4.08(a)(3);
 
(13)        Liens securing Debt otherwise permitted to be Incurred under this Indenture, including Section 4.12;
 
(14)         any other agreement governing Debt entered into after the Issue Date that contains encumbrances and restrictions that are not materially more restrictive with respect to any Restricted Subsidiary than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date;
 
(15)        customary provisions contained in licenses, sublicenses, covenants not to sue, releases and other agreements in connection with Intellectual Property (including in connection with distribution, license and supply agreements) and other similar agreements entered into in the ordinary course of business; and
 
(16)        any restrictions with respect to the corporate aircraft, including under any lease, sublease, charter, management, operating, crew, service, repair, maintenance, storage or other agreement relating to the aircraft.
 
(c)           Nothing contained in this Section 4.08 shall prevent the Company or any Restricted Subsidiary from: (i) creating, Incurring, assuming or suffering to exist any Liens otherwise permitted by Section 4.12; or (ii) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Debt of the Company or any of its Restricted Subsidiaries Incurred in accordance with Section 4.09 and Section 4.12.
 
Section 4.09           Incurrence of Debt.
 
(a)           The Company will not, and will not permit any of its Restricted Subsidiaries to Incur any Debt (including Acquired Debt); provided that the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, the Total Net Leverage Ratio of the Company and its Restricted Subsidiaries, determined on a Pro Forma Basis, including as if any such Debt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the four fiscal quarter period had been Incurred and the proceeds thereof had been applied at the beginning of the four fiscal quarter period, and any other Debt repaid since the beginning of the four fiscal quarter period had been repaid at the beginning of the four fiscal quarter period, would not exceed 6.50:1.00; provided that, (i) any such Debt Incurred by Restricted Subsidiaries that are not Guarantors pursuant to this Section 4.09(a), when aggregated with Debt Incurred by Restricted Subsidiaries that are not Guarantors pursuant to clauses (1), (20), (21)(i), (23) and (24) of the definition of “Permitted Debt”, shall not exceed an aggregate principal amount outstanding equal to the greater of (x) $58.0 million and (y) 2.5% of Consolidated Total Assets (in each case, determined on the date of such Incurrence) and (ii) prior to January 1, 2019, such Debt may only be Incurred to finance Investments permitted under clause (6) of the definition of “Permitted Investments.”
 
98

(b)           Notwithstanding Section 4.09(a), the Company and its Restricted Subsidiaries may Incur Permitted Debt.
 
(c)           For purposes of determining compliance with this Section 4.09:
 
(1)          in the event that an item of Debt meets the criteria of more than one of the types of Debt described in Section 4.09(a) or (b), including categories of Permitted Debt, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt in any manner that complies with Section 4.09 and shall only be required to include the amount and type of such Debt in one of such clauses under Section 4.09 or the definition of “Permitted Debt” hereunder; provided that no such reclassification or division shall be permitted with respect to any Debt incurred pursuant to clauses (1) or (23) of the definition of “Permitted Debt” hereunder;
 
(2)          Debt permitted by this Section 4.09 need not be permitted solely by reference to one provision permitting such Debt but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.09 (including categories of Permitted Debt) permitting such Debt;
 
(3)          Guarantees of, or obligations with respect to letters of credit supporting, Debt that is otherwise included in the determination of a particular amount of Debt shall not be included; and
 
(4)          in the event that the Company or a Restricted Subsidiary enters into or increases commitments under a revolving credit facility or otherwise enters into any commitment to Incur or issue Debt or any related Lien, the incurrence or issuance thereof, including the calculation of the Senior Secured Net Leverage Ratio and the Total Net Leverage Ratio or compliance with any cap expressed as a percentage of Consolidated Adjusted EBITDA or Consolidated Total Assets, as applicable, for borrowings and reborrowings thereunder will, at the Company’s option, either be determined (a) on the date of such facility or such entry into or increase in commitments or (b) on the date such amount is borrowed pursuant to any such facility or increased commitment.
 
The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt for purposes of this Section 4.09.
 
99

For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt denominated in another currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term Debt, or first committed, in the case of revolving credit Debt; provided that if such Debt is Incurred as Refinancing Debt to refinance Debt denominated in another 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 Debt does not exceed (i) the principal amount of such Debt being refinanced, plus (ii) the aggregate amount of fees, underwriting discounts, defeasance costs, premiums and other costs and expenses Incurred in connection with such refinancing.  Notwithstanding any other provision of this covenant, the maximum amount of Debt that the Company may Incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies.
 
Section 4.10           Asset Sales; Casualty Events.
 
(a)           The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
 
(1)          the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (such Fair Market Value to be determined at the time of contractually agreeing to such Asset Sale) of the assets or Capital Interests issued or sold or otherwise disposed of;
 
(2)          at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Eligible Cash Equivalents; and
 
(3)          to the extent that any consideration received by the Company (or such Restricted Subsidiary, as the case may be) in any such Asset Sale of Collateral constitutes property or other assets that are of a type or class that constitutes Collateral, such property or other assets are added to the Collateral securing the Notes in the manner and to the extent required by this Indenture or any of the Collateral Documents with the Lien on such Collateral securing the Notes being of the same priority with respect to the Notes as the Lien on the property or assets disposed of in the Asset Sale.
 
(b)           For the purposes of Section 4.10(a)(2) above, each of the following will be deemed to be cash:
 
(1)          any liabilities (as shown on the most recent consolidated balance sheet of the Company or any Restricted Subsidiary) of the Company or any of its Restricted Subsidiaries (other than Debt and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary assignment and assumption agreement that releases the Company or such Restricted Subsidiary from further liability;
 
100

(2)          any securities, notes, Capital Interests or other obligations received by the Company or any of its Restricted Subsidiaries from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days of their receipt to the extent of the cash received in that conversion; and
 
(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 $35.0 million 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).
 
(c)           Within 365 days after the receipt of any Net Cash Proceeds from an Asset Sale or from a Casualty Event (the “Net Cash Proceeds Application Period”), the Company or the applicable Restricted Subsidiary, as the case may be, may apply such Net Cash Proceeds, at its option:
 
(1)          to prepay, repay, redeem or purchase any First Priority Obligations of the Company or any Restricted Subsidiary and cause such Debt to be permanently retired and the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed or repurchased; provided, however, that (x) to the extent the terms of such First Priority Obligations (other than Additional Notes) require Net Cash Proceeds to repay obligations outstanding under such First Priority Obligations prior to the repayment of other First Priority Obligations, the Company or such Restricted Subsidiary shall be entitled to repay such obligations without an obligation to offer to repay obligations under the Notes in an equivalent amount and (y) except as provided in the foregoing clause (x), to the extent the Company or such Guarantor so reduces any other First Priority Obligations, the Company shall offer to purchase an equal and ratable amount of the Notes as provided under Article 3 by making an Offer to Purchase (in accordance with the procedures set forth in Section 4.10(d)) to all Holders of Notes to purchase their Notes at 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but not including, the date of purchase (and, in the case of revolving loans, to correspondingly reduce commitments with respect thereto);
 
(2)          to acquire all or substantially all of the assets of, or any Capital Interests of, another Permitted Business, if, after giving effect to any such acquisition of Capital Interests, the Permitted Business is or becomes a Restricted Subsidiary of the Company; provided that, to the extent such Net Cash Proceeds are derived from an Asset Sale of Collateral, such assets or Capital Interests, as applicable, shall be added to the Collateral securing the Notes to the extent required by this Indenture or any of the Collateral Documents;
 
101

(3)          to make a capital expenditure in or that is used or useful (as determined in the good faith judgment of the Company) in a Permitted Business or to make expenditures for maintenance, repair or improvement of existing properties and assets in accordance with the provisions of this Indenture;
 
(4)          to acquire other assets that are not classified as current assets under IFRS and that are used or useful (as determined in the good faith judgment of the Company) in a Permitted Business; provided that, to the extent such Net Cash Proceeds are derived from an Asset Sale of Collateral, such assets shall be added to the Collateral securing the Notes to the extent required by this Indenture or any of the Collateral Documents; or
 
(5)          any combination of the foregoing;
 
provided that notwithstanding the foregoing or the first sentence of Section 4.10(d), (A) in the case of clause (3) of this Section 4.10(c), a binding commitment shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment so long as the Company or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 180 days of the Net Cash Proceeds Application Period (an “Acceptable Commitment”) and such Net Cash Proceeds are actually applied in such manner within the later of 365 days from the consummation of the Asset Sale or Casualty Event and 180 days from the date of the Acceptable Commitment, and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Cash Proceeds are applied in connection therewith, then such Net Cash Proceeds shall constitute Excess Proceeds to the extent the Net Cash Proceeds Application Period has expired, (B) with respect to Net Cash Proceeds from an Asset Sale (other than a sale of North American Assets or a Material Disposition) or from a Casualty Event, the Company or the applicable Restricted Subsidiary shall only be required to apply or invest such Net Cash Proceeds pursuant to this Section 4.10(c) if the aggregate Net Cash Proceeds in any fiscal year in respect of all Asset Sales (other than (x) a sale of the North American Assets or (y) a Material Disposition) or all Casualty Events, respectively, exceeds $25.0 million (provided that such Net Cash Proceeds to be so applied or invested shall be the amount thereof in excess of $25.0 million (it being understood by means of example and not in limitation of the foregoing, if in the 2020 fiscal year, there was $27.5 million of Net Cash Proceeds, then only $2.5 million of Net Cash Proceeds shall be required to be so applied or invested )); provided that, to the extent such aggregate Net Cash Proceeds do not exceed $25.0 million in any fiscal year, then the Company and its Restricted Subsidiaries shall be entitled to retain any such Net Cash Proceeds and use such Net Cash Proceeds for any purposes not prohibited under this Indenture and such Net Cash Proceeds shall not constitute “Excess Proceeds”, and (C) with respect to Net Cash Proceeds from any non-ordinary course sale of North American Assets or any Material Disposition, the Company or the applicable Restricted Subsidiary shall only be required to apply such Net Cash Proceeds pursuant to this Section 4.10(c) in the event such Net Cash Proceeds exceed $5.0 million, in which event, 100% of such Net Cash Proceeds shall be required to be applied pursuant to this Section 4.10(c) (provided further that, only up to 50% of such Net Cash Proceeds may be applied pursuant to clause (2), (3) or (4) of this Section 4.10(c) or any combination thereof and for the avoidance of doubt, the remainder of such Net Cash Proceeds shall only be applied pursuant to clause (1) of this Section 4.10(c)).
 
102

(d)           Any Net Cash Proceeds from Asset Sales or Casualty Events that are not applied or invested as provided in Section 4.10(c) will constitute “Excess Proceeds.” The Company will, within 30 days after the expiry of the Net Cash Proceeds Application Period, make an Offer to Purchase to all Holders of Notes (on a pro rata basis to each series of Notes), and if required by the terms of any other First Priority Obligations containing comparable repurchase rights, to purchase or redeem the maximum principal amount of Notes and such other First Priority Obligations that may be purchased out of the amount of such Excess Proceeds.
 
The offer price in any Offer to Purchase of Notes will be equal to 100% of the principal amount plus accrued and unpaid interest, if any, to, but not including, the date of purchase, and will be payable in cash.  If any Excess Proceeds remain after consummation of an Offer to Purchase, the Company may use those funds for any purpose not otherwise prohibited by this Indenture and they will no longer constitute Excess Proceeds.  If the aggregate principal amount of Notes and other First Priority Obligations tendered into such Offer to Purchase exceeds the amount of Excess Proceeds, the Trustee will select the Notes and the trustee or agent for the other First Priority Obligations will select the First Priority Obligations to be purchased on a pro rata basis among each series.  Upon completion of each Offer to Purchase, the amount of Excess Proceeds will be reset at zero.
 
(e)           Notwithstanding the foregoing, to the extent that the Company determines in good faith that any Offer to Purchase attributable to any Restricted Subsidiary incorporated or organized outside the United States or Canada, (i) would be prohibited or restricted under applicable local law (including, without limitation, as a result of laws or regulations relating to financial assistance, corporate benefit, restrictions on upstreaming of cash intragroup and fiduciary and statutory duties of directors of relevant Restricted Subsidiaries) (provided that the Company and its Restricted Subsidiaries shall take all commercially reasonable actions available under local law to permit such repatriation), (ii) would result in material adverse tax  consequences (including, without limitation, as a result of any withholding tax) as determined in good faith by the Company (which shall be conclusively evidenced by an Officer’s Certificate of the Company) if such amount were repatriated to the Company as a dividend or (iii) in the case of any Offer to Purchase attributable to any joint venture, would violate any organizational document of such joint venture (or any relevant shareholders’ or similar agreement), in each case, if the amount subject to the relevant Offer to Purchase were upstreamed or transferred to the Company as a distribution or dividend (any amount limited as set forth in clauses (i) through (iii) above of this clause (e), a “Restricted Amount”), the amount of the relevant Offer to Purchase shall be reduced by the Restricted Amount; provided that (A) in the case of any Restricted Amount arising under the circumstances described in clause (i) or (ii) above, the Company shall use commercially reasonable efforts to take all actions required by applicable law to permit the repatriation of the relevant amounts to the Company and (B) if the circumstance giving rise to any Restricted Amount ceases to exist within 365 days following the end of the event giving rise to the relevant Offer to Purchase, the relevant Restricted Subsidiary shall promptly repatriate or distribute the amount that no longer constitutes a Restricted Amount to the Company for application to such an Offer to Purchase as required above promptly following the date on which the relevant circumstance ceases to exist; it being understood and agreed that following the expiration of the 365-day period referenced above, the relevant Restricted Subsidiary may retain any Restricted Amount, and no Offer to Purchase shall be required in respect thereof; provided that in no event shall any Restricted Amount be used to increase the amounts available to make a Restricted Payment under Section 4.07(a).
 
103

(f)            Pending the final application of any Net Cash Proceeds pursuant to this Section 4.10, such Net Cash Proceeds may be applied temporarily to reduce Debt outstanding under a revolving credit facility or may otherwise be invested in any manner not prohibited by this Indenture.
 
(g)           The Company will comply with the applicable requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder, including Canadian Securities Laws, to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Offer to Purchase.  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 will be deemed to have complied with its obligations under the provisions of this Section 4.10 by virtue of such compliance with the applicable securities laws and regulations.
 
(h)           Other than as specifically provided in this Section 4.10, any purchase pursuant to this Section 4.10 shall be made pursuant to the provisions of Sections 3.02, 3.05 and 3.06.
 
Section 4.11           Transactions with Affiliates.
 
(a)           The Company will not, and will 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 related transactions), contract, agreement, loan, advance or Guarantee with, or for the benefit of, any Affiliate of the Company involving aggregate consideration in excess of $5 million (each of the foregoing, an “Affiliate Transaction”), unless:
 
(1)          such Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by the Company or such Subsidiary with a Person who is not an Affiliate; and
 
(2)          with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20 million, the Company delivers to the Trustee a resolution adopted in good faith by the majority of the Board of Directors of the Company approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (1) above.
 
104

(b)           Section 4.11(a) shall not apply to:
 
(1)          any Restricted Payment permitted to be made pursuant to Section 4.07 and any Permitted Investments (other than a Permitted Investment described in clause (6) of the definition thereof);
 
(2)          the payment of reasonable and customary fees and other benefits and indemnities to officers, consultants, employees of the Company or a Restricted Subsidiary, and members of the Board of Directors of the Company or a Restricted Subsidiary who are outside directors;
 
(3)          the payment of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans, and annual retainer fees for directors (or a duly authorized committee thereof)) and indemnities to directors, officers and employees of the Company or any Restricted Subsidiary as determined by the Board of Directors thereof in good faith;
 
(4)          transactions between or among the Company and/or its Restricted Subsidiaries;
 
(5)          any agreement or arrangement as in effect on the Issue Date and any amendment or modification thereto so long as such amendment or modification is no less favorable in any material respect to the Holders;
 
(6)          any contribution of capital to the Company or a Restricted Subsidiary;
 
(7)          any transaction with a joint venture, partnership, limited liability company or other entity (other than an Unrestricted Subsidiary) that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in such joint venture, partnership, limited liability company or other entity;
 
(8)          transactions with customers, distributors, clients, suppliers or purchasers or sellers of goods or services, in each case, in the ordinary course of business and on terms that are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, as determined in good faith by the Company, than those that could be obtained in a comparable arm’s length transaction with a Person that is not an Affiliate of the Company;
 
(9)          any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, equity purchase agreements, stock options, long term incentive plans and stock ownership plans approved by the Board of Directors of the Company;
 
(10)        any purchase of Capital Interests (other than Redeemable Capital Interests) of the Company or a Restricted Subsidiary or any contribution to the equity capital of the Company or a Restricted Subsidiary;
 
105

(11)        (i) payments by the Company and any of its Restricted Subsidiaries pursuant to any tax sharing agreements among any of a Parent Entity, the Company and any of its Restricted Subsidiaries on customary terms that require each party to make payments when taxes are due or refunds received of amounts equal to the income tax liabilities and refunds generated by each such party and (ii) payments by any Parent Entity, the Company or any of its Restricted Subsidiaries pursuant to any tax sharing agreements among such Parent Entity, the Company and any of its Restricted Subsidiaries on customary terms that require each party to make payments when taxes are due or refunds received of amounts equal to the income tax liabilities and refunds generated by each such party calculated on a separate return basis, and payments to the party generating tax benefits and credits of amounts equal to the value of such tax benefits and credits made available to the party making the payments;
 
(12)        transactions in which the Company or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from a nationally recognized investment bank or accounting or appraisal firm stating substantially to the effect that such transaction is on terms that are not less favorable to the Company or such Restricted Subsidiary than those that would 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
 
(13)        (A) any employment, severance or consulting agreements entered into by the Company or any of the Restricted Subsidiaries in the ordinary course of business, (B) any subscription agreement or similar agreement pertaining to the repurchase of Capital Interests pursuant to put/call rights or similar rights with employees, consultants, officers or directors and (C) any employee, severance or consultant compensation, indemnification arrangement, benefit plan or arrangement, any health, disability or similar insurance plan which covers employees or consultants, and any reasonable employment or consulting contract and transactions pursuant thereto.
 
Section 4.12           Liens.
 
The Company will not, and will not permit any of its Restricted Subsidiaries to create, Incur, assume or otherwise cause or suffer to exist or become effective any Lien of any kind (other than Permitted Liens) that secures obligations under any Debt or any related guarantee, on any of their property or assets, now owned or hereafter acquired.
 
For purposes of determining compliance with this Section 4.12:
 
(1)          in the event that any Lien meets the criteria of more than one category of Permitted Liens, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Lien in any manner that complies with Section 4.12 and shall only be required to include the amount and type of such Lien in one of such clauses under the definition of “Permitted Liens” hereunder; provided that no such reclassification or division shall be permitted with respect to any Lien incurred pursuant to clauses (1) or (33) of the definition of “Permitted Liens” hereunder; and
 
106

(2)          Lien permitted by this Section 4.12 need not be permitted solely by reference to one provision permitting such Lien but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.12 (including categories of Permitted Liens) permitting such Lien.
 
With respect to any Lien securing Debt that was permitted to secure such Debt at the time of the Incurrence of such Debt, such Lien shall also be permitted to secure any Increased Amount of such Debt.  The “Increased Amount” of any Debt shall mean any increase in the amount of such Debt 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 Debt with the same terms, accretion of original issue discount or liquidation preference and increases in the amount of Debt outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Debt.
 
Section 4.13           Corporate Existence.
 
Subject to Article 5, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect: (1) its corporate existence and the corporate, partnership, limited liability company or other existence of each of its Restricted Subsidiaries, in accordance with the respective organizational documents (as the same may be amended from time to time) of the Company or any such Restricted Subsidiary; and (2) the material rights, licenses and franchises of the Company and its Restricted Subsidiaries; provided 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 of its Restricted Subsidiaries, if the Company in good faith shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Restricted Subsidiaries, taken as a whole; and provided, further, that the Company and its Restricted Subsidiaries that are organized in a jurisdiction in Canada (including a jurisdiction in any province, territory or political subdivision thereof) shall be permitted to change the jurisdiction of its existence to another jurisdiction in (i) a Permitted Jurisdiction or (ii) Canada or the United States or, in each case, any political subdivision thereof or any state, province or territory thereof or the District of Columbia.
 
Section 4.14           Change of Control.
 
(a)           Upon the occurrence of a Change of Control, the Company will make an Offer to Purchase all of the outstanding Notes at a Purchase Price in cash equal to 101% of the aggregate principal amount of the Notes tendered, together with accrued and unpaid interest, if any, to, but not including, the Purchase Date; provided that, if the Company has exercised its right to redeem all of the Notes pursuant to Section 3.07 prior to the time the Company would be required to make an Offer to Purchase, the Company shall not be required to make such Offer to Purchase.
 
107

(b)           For purposes of this Section 4.14, an Offer to Purchase shall be deemed to have been made if (i) within 60 days following the date of the consummation of a transaction or series of transactions that constitutes a Change of Control, the Company commences an Offer to Purchase for all then outstanding Notes at a Purchase Price in cash equal to 101% of the aggregate principal amount of the Notes tendered, together with accrued and unpaid interest, if any, to, but not including, the Purchase Date and (ii) all Notes properly tendered and not validly withdrawn pursuant to the Offer to Purchase are purchased on the terms of such Offer to Purchase.
 
(c)           The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws or regulations, including Canadian Securities Laws, in connection with any Offer to Purchase pursuant to this Section 4.14. To the extent that the provisions of any applicable securities laws or regulations conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will be deemed to have complied with its obligations under this Indenture by virtue of such compliance with the applicable securities laws and regulations.
 
(d)           The Company will not be required to make an Offer to Purchase upon a Change of Control if: (i) a third party makes such Offer to Purchase contemporaneously with or upon a Change of Control in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.14 and such third party purchases all Notes validly tendered and not validly withdrawn under such Offer to Purchase; or (ii) a notice of redemption has been given pursuant to Section 3.07.
 
(e)           If Holders of not less than 90% of the aggregate principal amount of the then outstanding Notes validly tender and do not validly withdraw such Notes in an Offer to Purchase and the Company, or any other Person making an Offer to Purchase in lieu of the Company pursuant to this Section 4.14, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, then the Company or such Person will have the right, upon not less than 15 nor more than 60 days’ prior notice (provided that such notice is given not more than 30 days following such purchase pursuant to the Offer to Purchase pursuant to this Section 4.14), to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the aggregate principal amount of such Notes, plus, to the extent not already included, accrued and unpaid interest, if any, on the Notes that remain outstanding to, but not including, the purchase date (subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date that is on or prior to the purchase date).
 
(f)           An Offer to Purchase may be made in advance of a Change of Control, conditional upon the occurrence of such Change of Control, if a definitive agreement is in place for the Change of Control at the time of launching the Offer to Purchase.
 
108

(g)           Other than as specifically provided in this Section 4.14, any purchase pursuant to this Section 4.14 shall be made pursuant to the provisions of Sections 3.02, 3.05 and 3.06.
 
Section 4.15           Additional Note Guarantees.
 
(a)           After the Issue Date, the Company will, within 30 days of the event giving rise to such requirement, cause each of its Restricted Subsidiaries (other than any Restricted Subsidiary that is a “controlled foreign corporation” as defined under Section 957 of the Code) that (1) is a borrower under any Credit Facility or (2) Guarantees any Debt of the Company or any of its Restricted Subsidiaries Incurred under any Credit Facility to Guarantee the Notes pursuant to a supplemental indenture substantially in the form of Exhibit D attached to this Indenture (or such other documents or instruments in form reasonably satisfactory to the Trustee) (subject to the limitations in Article 10 hereto) and execute joinders to Collateral Documents or new Collateral Documents and take all actions required thereunder to perfect the liens created thereunder; provided that, for the duration of any period during which no such Credit Facilities exist, the Company will cause a sufficient number of its Restricted Subsidiaries to Guarantee the Notes such that (i) each Non-Guarantor Subsidiary comprises no more than 5% of (x) Consolidated Total Assets or (y) Consolidated Adjusted EBITDA and (ii) all Non-Guarantor Subsidiaries comprise, in the aggregate, no more than 10% of (x) Consolidated Total Assets or (y) Consolidated Adjusted EBITDA.
 
(b)           Each Note Guarantee will state that it 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.
 
(c)           Each Note Guarantee shall be released in accordance with the provisions of Section 10.07.
 
Section 4.16           Sale and Leaseback Transactions.
 
(a)           The Company will not, and will not permit any of its Restricted Subsidiaries to, enter into any Sale and Leaseback Transaction involving an aggregate amount in excess of $5 million unless:
 
(1)          the consideration received in such Sale and Leaseback Transaction is at least equal to the Fair Market Value of the property sold;
 
109

(2)          prior to and after giving effect to the Attributable Debt in respect of such Sale and Leaseback Transaction, the Company and such Restricted Subsidiary comply with Section 4.09; and
 
(3)          at or after the time of giving effect to the Attributable Debt in respect of such Sale and Leaseback Transaction, the Company and such Restricted Subsidiary comply with Section 4.10.
 
Section 4.17           Business Activities.
 
(a)           The Company will not, and will not permit any Restricted Subsidiary to, engage in any business other than a Permitted Business.
 
Section 4.18           Creation of Unrestricted Subsidiaries.
 
(a)           After the Issue Date, the Company may designate any Subsidiary of the Company (other than any Subsidiary that holds any Intellectual Property that is material to the business of the Company and its Restricted Subsidiaries, taken as a whole (it being understood that an Unrestricted Subsidiary may subsequently develop Intellectual Property or purchase material Intellectual Property from a third party)) to be an “Unrestricted Subsidiary” as provided in this Section 4.18, in which event such Subsidiary and each other Person that is then or thereafter becomes a Subsidiary of such Subsidiary will be deemed to be an Unrestricted Subsidiary.
 
(b)          The Board of Directors of 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, amalgamation, consolidation, arrangement or Investment therein) to be an Unrestricted Subsidiary after the Issue Date only if:
 
(1)          neither the Company nor any of its Restricted Subsidiaries:
 
(A)       provides credit support for, or Guarantee of, any Debt of such Subsidiary or any Subsidiary of such Subsidiary (including any undertaking, agreement or instrument evidencing such Debt);
 
(B)        is directly or indirectly liable for any Debt of such Subsidiary or any Subsidiary of such Subsidiary; or
 
(C)        has any obligation to maintain or preserve such Subsidiary’s financial condition or to cause such Subsidiary to achieve any specified levels of operating results, including by way of subscription for additional Capital Interests of such Subsidiary; and such Subsidiary does not own any Capital Interests of, or own or hold any Lien on any property of, any Restricted Subsidiary of the Company; and
 
(2)          either:
 
(A)       (i) the Subsidiary to be so designated comprises no more than 5% of (x) Consolidated Total Assets and (y) Consolidated Adjusted EBITDA at the time of such designation, and (ii) after giving effect to such designation, all Unrestricted Subsidiaries comprise, in the aggregate, no more than 10% of (x) Consolidated Total Assets and (y) Consolidated Adjusted EBITDA at the time of such designation; or
 
110

(B)        the Company could make a Permitted Investment and/or Restricted Payment at the time of designation in an amount equal to the greater of the Fair Market Value or net book value of such Subsidiary pursuant to Section 4.07 (and such amount is thereafter treated as a Permitted Investment and/or Restricted Payment, as applicable, for the purpose of calculating the amount available for Permitted Investments and/or Restricted Payments, as applicable, thereunder).
 
(c)           Any such designation by the Company shall be evidenced to the Trustee by filing with the Trustee an Officer’s Certificate certifying that such designation complies with the foregoing conditions.
 
(d)           The Company may designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the Company; provided that, immediately after giving effect to such designation, (i) the Company could Incur at least $1.00 of additional Debt pursuant to Section 4.09(a) on a Pro Forma Basis taking into account such designation, and (ii) the Company could Incur the Liens on the property and assets of such Unrestricted Subsidiary pursuant to Section 4.12.
 
(e)            Nothing in this Indenture shall prevent the Company or a Restricted Subsidiary from pledging the Capital Interests of any Unrestricted Subsidiary so long as such transaction otherwise complies with the provisions of this Indenture.
 
Section 4.19           Covenant Suspension on Investment Grade Rating.
 
(a)          During any period of time (a “Suspension Period”) that:
 
(1)          the Notes have Investment Grade Ratings from both of the Rating Agencies; and
 
(2)          no Default or Event of Default has occurred and is continuing, (the occurrence of the events described in the foregoing clauses (1) and (2) being collectively referred to as a “Covenant Suspension Event”), the Company and its Restricted Subsidiaries will not be subject to the provisions of Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.16 and 5.01(a)(3) (collectively, the “Suspended Covenants”).
 
(b)           In the event that the Company and its Restricted Subsidiaries are not subject to the Suspended Covenants with respect to the Notes for any Suspension Period and, subsequently, (i) either one or both Rating Agencies withdraws its rating or downgrades the rating assigned to the Notes below the required Investment Grade Rating or (ii) the Company or any of its affiliates enters into an agreement to effect a transaction that would result in a Change of Control and either one or both Rating Agencies indicate that, if consummated, such transaction (alone or together with any related recapitalization or refinancing transactions) would cause such Rating Agency to withdraw its Investment Grade Rating or downgrade the ratings assigned to the Notes below an Investment Grade Rating, and such event in clause (i) or (ii) occurs prior to the Satisfaction of the Notes (such date of withdrawal or downgrade in clause (i) or (ii), a “Reinstatement Date”), then the Company and its Restricted Subsidiaries will, after the Reinstatement Date, again be subject to the Suspended Covenants with respect to future events for the benefit of the Notes (unless and until a Suspension Event again exists) until the Satisfaction of the Notes.
 
111

(c)           On the Reinstatement Date, all Debt Incurred during the Suspension Period shall be classified as having been Incurred pursuant to Section 4.09(a) or, at the Company’s option, one of the clauses set forth in the definition of “Permitted Debt” hereunder (to the extent such Debt would be permitted to be Incurred thereunder as of the Reinstatement Date and after giving effect to Debt Incurred prior to the Suspension Period and outstanding on the Reinstatement Date), and subject to Section 4.09.  To the extent such Debt would not be so permitted to be Incurred pursuant to Section 4.09(a) or (b), such Debt shall be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under clause (4) of the definition of “Permitted Debt” hereunder.
 
(d)           Calculations made after the Reinstatement Date of the amount available to be made as Restricted Payments under Section 4.07 shall be made as though Section 4.07 had been in effect since the Issue Date and throughout the Suspension Period.  Accordingly, Restricted Payments made during the Suspension Period shall reduce the amount available to be made as Restricted Payments under Section 4.07(a) to the extent provided therein.
 
(e)           Notwithstanding that the Suspended Covenants may be reinstated, no Default or Event of Default will be deemed to have occurred as a result of a failure to comply with the Suspended Covenants during a Suspension Period (or on the Reinstatement Date or after a Suspension Period based solely on events that occurred during the Suspension Period).
 
(f)            During a Suspension Period, but prior to the repayment, repurchase, retirement or redemption of all of the outstanding principal amount of the Notes or defeasance or satisfaction and discharge of this Indenture (collectively, the “Satisfaction of the Notes”), the Company may not designate any of the Company’s Subsidiaries as Unrestricted Subsidiaries pursuant to this Indenture unless the Company could have designated such Subsidiaries as Unrestricted Subsidiaries in compliance with this Indenture assuming the Suspended Covenants had not been suspended.
 
(g)           The Company will provide prompt written notice to the Trustee of any Covenant Suspension Event and any Reinstatement Date.  The Trustee is not required under this Indenture to monitor the ratings of the Notes or to give notice to the Holders of the occurrence of any Covenant Suspension Event or any Reinstatement Date.
 
112

Section 4.20           [Reserved].
 
Section 4.21           After-Acquired Property.
 
(a)           From and after the Issue Date, upon the acquisition by the Company or any Guarantor of any After-Acquired Property, the Company or such Guarantor shall execute and deliver such mortgages, deeds of trust, security instruments, financing statements, certificates and opinions of counsel as shall be necessary to vest in the Collateral Agent a perfected security interest, subject only to Permitted Liens, in such After-Acquired Property and to have such After-Acquired Property (but subject to certain limitations, if applicable, including as described under Article 12) added to the Collateral, and thereupon all provisions of this Indenture relating to the Collateral shall be deemed to relate to such After-Acquired Property to the same extent and with the same force and effect; provided that so long as the Credit Facilities are then outstanding, the Company and the Guarantors will not be required to grant, or to take actions to perfect, Liens of the Collateral Agent in certain of the After-Acquired Property if such actions are not requested by the Senior Secured Credit Facilities Collateral Agent with respect to such After-Acquired Property; provided further, however, that if granting such first priority security interest in such After-Acquired Property requires the consent of a third party, the Company will use commercially reasonable efforts to obtain such consent with respect to the first priority interest for the benefit of the Collateral Agent on behalf of the Trustee and the Holders of the Notes; provided, further, that if such third party does not consent to the granting of such first priority security interest after the use of such commercially reasonable efforts, the Company or such Guarantor, as the case may be, will not be required to provide such security interest.
 
Section 4.22           Companies Act 2014 (Ireland).
 
(a)           Each Irish Domiciled Grantor shall comply in all respects with Sections 82 and 239 of the Companies Act 2014 of Ireland, including in relation to the execution of this Indenture, any other Notes Document to which it is a party and the payment of amounts due under this Agreement or any other Notes Document to which it is a party.
 
ARTICLE 5

SUCCESSORS
 
Section 5.01           Merger, Amalgamation, Arrangement, Consolidation or Sale of All or Substantially All Assets.
 
(a)           The Company will not, in any transaction or series of transactions, consolidate or amalgamate with or merge into any other Person, including by way of plan of arrangement (other than a merger or amalgamation of a Restricted Subsidiary into the Company in which the Company or the Person continuing from such amalgamation is the continuing Person), or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of the property and assets of the Company and its Restricted Subsidiaries (determined on a consolidated basis), taken as a whole, to any other Person, unless:
 
113

(1)          either (a) the Company or the Person continuing from such amalgamation shall be the continuing Person or (b) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or amalgamated or the Person that acquires, by sale, assignment, conveyance, transfer, lease or other disposition, all or substantially all of the property and assets of the Company (such Person, the “Surviving Entity”), (A) shall be a corporation, partnership, limited liability company or similar entity organized and validly existing under the laws of (i) a Permitted Jurisdiction or (ii) Canada or the United States or, in each case, any political subdivision thereof or any state, province or territory thereof or the District of Columbia, and (B) shall expressly assume, by a supplemental indenture and such other necessary agreements, executed and delivered to the Trustee and/or the Collateral Agent, if applicable, in form reasonably satisfactory to the Trustee and/or the Collateral Agent, if applicable, the due and punctual payment of all amounts due in respect of the principal of, premium, if any, and interest, if any, on the Notes and the performance of the covenants and obligations of the Company under this Indenture and the Collateral Documents; provided that, if at any time the Company or the Surviving Entity is not a corporation, there shall be a co-issuer of the Notes that is a corporation;
 
(2)          immediately after giving effect to such transaction or series of transactions on a Pro Forma Basis (including, without limitation, any Debt Incurred in connection with or in respect of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing or would result therefrom;
 
(3)          immediately after giving effect to such transaction or series of transactions on a Pro Forma Basis (including, without limitation, any Debt Incurred in connection with or in respect of such transaction or series of transactions) as if such transaction or series of transactions had occurred on the first day of the determination period, the Total Net Leverage Ratio of the Company (or the Surviving Entity, if the Company is not continuing) would (x) not exceed 6.50:1.00 or (y) be equal to or less than the Total Net Leverage Ratio of the Company immediately prior to such transaction or series of transactions;
 
(4)          to the extent required in the Collateral Documents, the Surviving Entity promptly causes such amendments, supplements or other instruments to be executed, delivered, filed and recorded, as applicable, in such jurisdictions as may be reasonably required by applicable law to preserve and protect the Lien of the Collateral Documents on the Collateral owned by or transferred to the Surviving Entity; and
 
(5)          the Company delivers, or causes to be delivered, to the Trustee and the Collateral Agent, in form satisfactory to the Trustee and the Collateral Agent, an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation, sale, conveyance, assignment, transfer, lease or other disposition, and such supplemental indenture, if any, complies with the requirements of this Indenture.
 
114

(b)           Notwithstanding Section 5.01(a), failure to satisfy clauses (2) and (3) of Section 5.01(a) will not prohibit:
 
(1)          any merger or amalgamation between the Company and a Restricted Subsidiary that is a Wholly Owned Subsidiary; or
 
(2)          any merger or amalgamation between the Company and an Affiliate incorporated solely for the purpose of converting the Company into a Person organized under the laws of (i) a Permitted Jurisdiction or (ii) Canada or the United States or, in each case, any political subdivision thereof or any state, province or territory thereof or the District of Columbia (other than its then current state, province, territory or political subdivision of organization), or for the purpose of changing its form of organization; provided that, in each case, the amount of Debt of the Company and its Restricted Subsidiaries is not increased thereby or the Company is otherwise in compliance with the conditions and covenants of this Indenture.
 
Section 5.02           Surviving Entity Substituted.
 
Upon any consolidation, merger, amalgamation or arrangement, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries in accordance with Section 5.01:
 
(a)           the Surviving Entity (if other than the Company) shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, amalgamation, arrangement, winding-up, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring to the Company shall refer instead to the Surviving Entity and not to the Company), and may exercise every right and power of, the Company under this Indenture, the Notes and the Note Guarantees with the same effect as if such Surviving Entity had been named as the Company herein; provided that, in the case of a lease of all or substantially all the Company’s assets, the predecessor Person shall be relieved of all such obligations; and
 
(b)           Subsidiaries of any Surviving Entity (if other than the Company) will, upon such transaction or series of transactions, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture and all Debt, and all Liens on property or assets, of the Surviving Entity and its Subsidiaries which are deemed to be Restricted Subsidiaries that was not Debt, or were not Liens on property or assets, of the Company and its Subsidiaries immediately prior to such transaction or series of transactions shall be deemed to have been Incurred upon such transaction or series of transactions.
 
115

ARTICLE 6

DEFAULTS AND REMEDIES
 
Section 6.01           Events of Default.
 
(a)           Each of the following is an “Event of Default”:
 
(1)          default in the payment of principal of (or premium, if any, on) any Note when due and payable (whether at Stated Maturity or upon repurchase, acceleration, optional redemption or otherwise);
 
(2)          default in the payment of any interest upon any Note when it becomes due and payable, and continuance of such default for a period of 30 days;
 
(3)          except as permitted by this Indenture, any Note Guarantee of any Significant Subsidiary required to be a Guarantor pursuant to this Indenture (or any group of Restricted Subsidiaries required to be Guarantors pursuant to this Indenture that, taken together, would constitute a Significant Subsidiary) shall for any reason cease to be, or it shall be asserted by any such Guarantor or the Company not to be, in full force and effect and enforceable in accordance with its terms;
 
(4)          default in the performance, or breach, of any covenant or agreement of the Company or any Guarantor in this Indenture or any of the Collateral Documents (other than a covenant or agreement a default in whose performance or whose breach is specifically addressed in clause (1), (2) or (3) above), and continuance of such default or breach for a period of 60 days after written notice thereof has been given to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding Notes;
 
(5)          a default or defaults under any bonds, debentures, notes or other evidences of Debt (other than the Notes) by the Company or any Restricted Subsidiary having, individually or in the aggregate, a principal or similar amount outstanding of at least $50 million (or its foreign currency equivalent), whether such Debt now exists or shall hereafter be created, which default or defaults (A) shall have resulted in the acceleration of the maturity of such Debt prior to its express maturity or (B) shall constitute a failure to pay principal of at least $50 million (or its foreign currency equivalent) on such Debt when due and payable after the expiration of any applicable grace period with respect thereto;
 
(6)          the entry against the Company or any Restricted Subsidiary that is a Significant Subsidiary of a final judgment or final judgments for the payment of money in an aggregate amount in excess of $50 million (or its foreign currency equivalent), by a court or courts of competent jurisdiction, which judgment or judgments are not covered by insurance and remain undischarged, unwaived, unstayed, unbonded or unsatisfied for a period of 60 consecutive days;
 
116

(7)          the Company or any Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary, other than in connection with solvent reconstructions or reorganizations otherwise permitted under this Indenture, pursuant to or within the meaning of any Bankruptcy Law:
 
(A)       commences proceedings to be adjudicated bankrupt or insolvent;
 
(B)        consents to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition, application or answer or consent seeking an arrangement of debt, reorganization (including by way of voluntary arrangement, scheme of arrangement or otherwise), liquidation, dissolution, examinership, winding-up or relief under applicable Bankruptcy Law (including the making of a proposal or the filing of a notice of intention to make a proposal);
 
(C)        applies for or consents to the appointment of a custodian, examiner, receiver, interim receiver, receiver and manager, liquidator, administrative receiver, administrator, compulsory manager, assignee, trustee, sequestrator or other similar official of it or for all or substantially all of its property and assets;
 
(D)        makes a general assignment for the benefit of its creditors or takes any comparable action under any foreign laws relating to insolvency;
 
(E)        generally is not paying its debts as they become due or admits in writing its inability to pay its debts when due;
 
(F)        commences any proceedings in relation to any reconstruction (Sw.  företagsrekonstruktion) under the Swedish Act on Reconstruction (Sw.  Lag om företagsrekonstruktion (1996:764)), bankruptcy (Sw.  konkurs) under the Swedish Bankruptcy Act (Sw.  Konkurslag (1987:672)) or winding-up or dissolution (Sw.  likvidation) under the Swedish Companies Act; or
 
(G)        takes any corporate action in furtherance of any such actions in this clause (7);
 
(8)          an involuntary case or proceeding shall be commenced or an involuntary petition, application or other originating process shall be filed with a court of competent jurisdiction under any Bankruptcy Law that seeks:
 
(A)       to adjudicate the Company, any Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, bankrupt or insolvent;
 
117

(B)        the appointment of a custodian, examiner, receiver, interim receiver, receiver and manager, liquidator, assignee, administrative receiver, administrator, compulsory manager, trustee, sequestrator or other similar official for the Company, any Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property and assets of the Company, any Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary;
 
(C)        the liquidation, administration, dissolution, examinership, readjustment of debt, reorganization or winding-up of the Company, any Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary; or
 
(D)        any reconstruction (Sw.  företagsrekonstruktion) under the Swedish Act on Reconstruction (Sw.  Lag om företagsrekonstruktion (1996:764)), bankruptcy (Sw.  konkurs) under the Swedish Bankruptcy Act (Sw.  Konkurslag (1987:672)) or winding-up or dissolution (Sw.  likvidation) under the Swedish Companies Act in respect of any Swedish Guarantor;
 
and such case, proceeding, petition, application or other process shall continue undismissed and unstayed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered; or
 
(9)          any Collateral Document shall for any reason be asserted in writing by the Company or any Guarantor not to be a legal, valid and binding obligation of such party thereto or any security interest purported to be created by any Collateral Document relating to a material portion of the Collateral with a Fair Market Value in excess of $50 million shall cease to be, or shall be asserted in writing by the Company or a Guarantor not to be, a valid and perfected security interest (having the priority required by this Indenture or the relevant Collateral Document and subject to such limitations and restrictions as are set forth in this Indenture or the Collateral Documents).
 
(b)           In the event of a declaration of acceleration of the Notes solely because an Event of Default described in clause (5) of Section 6.01(a) has occurred and is continuing, the declaration of acceleration of the Notes shall be automatically rescinded and annulled if:
 
(1)          the default triggering such Event of Default pursuant to clause (5) of Section 6.01(a) shall be remedied or cured by the Company or any of its Restricted Subsidiaries or waived by the holders of the relevant Debt within 20 Business Days after the declaration of acceleration with respect thereto; and
 
118

(2)          (A) the rescission and annulment of the acceleration of the Notes would not conflict with any judgment or decree of a court of competent jurisdiction obtained by the Trustee for the payment of principal, premium, if any, or interest, if any, due on the Notes and (B) all existing Events of Default, except nonpayment of principal, premium, if any, or interest, if any, on the Notes that became due solely because of the acceleration of the Notes, have been cured or waived.
 
Section 6.02           Acceleration.
 
(a)           If an Event of Default (other an Event of Default specified in clause (7) or (8) of Section 6.01(a) with respect to the Company) occurs and is continuing of which a Responsible Officer of the Trustee has actual knowledge or has received notice thereof at the address specified in Section 13.01 hereof, the Trustee shall transmit by mail to the Holders as their names and addresses appear on the Note Register, notice of such Event of Default within ten Business Days after such Responsible Officer receives such notice or obtains actual knowledge. The Holders of at least 25% in aggregate principal amount of the then outstanding Notes by written notice to the Company and the Trustee, may, and the Trustee at the written request of such Holders shall, declare the principal of, premium, if any, and accrued and unpaid interest, if any, on all the Notes to be due and payable immediately.  Upon such a declaration, such principal, premium, if any, and accrued and unpaid interest, if any, shall be due and payable immediately.
 
(b)           If an Event of Default specified in clause (7) or (8) of Section 6.01(a) occurs with respect to the Company and is continuing, the principal of, premium, if any, and accrued and paid interest, if any, on all the Notes shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.
 
Section 6.03           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, premium, if any, and interest, if any, on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
 
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding.  A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default.  All remedies are cumulative to the extent permitted by law.
 
Section 6.04           Waiver of Past Defaults.
 
The Required Consenting Holders may on behalf of the Holders of all the Notes waive any past Default or Event of Default and its consequences hereunder, except a Default or Event of Default:
 
119

(1)          in any payment in respect of the principal of (or premium, if any) or interest, if any, on any Notes (including any Note which is required to have been purchased pursuant to an Offer to Purchase which has been made by the Company); or
 
(2)          in respect of a covenant or provision hereof which under this Indenture cannot be modified or amended without the consent of the Holder of each outstanding Note affected, each of which, for the avoidance of doubt, shall require the consent of all the Holders of the then outstanding Notes.
 
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.
 
Section 6.05           Control by Majority.
 
The Holders of a majority in aggregate principal amount of the outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or the Collateral Agent or for exercising any trust or power conferred on the Trustee or the Collateral Agent.  However, the Trustee or the Collateral Agent may refuse to follow any direction that conflicts with applicable law or this Indenture, the Notes or any Note Guarantee, or that the Trustee or the Collateral Agent determines in good faith is unduly prejudicial to the rights of any other Holder (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any such direction is unduly prejudicial to any such other Holder) or that would involve the Trustee or the Collateral Agent in personal liability or expense for which the Trustee or the Collateral Agent, as applicable, has not been offered an indemnity satisfactory to it.
 
Section 6.06           Limitation on Suits.
 
Subject to Section 6.07, no Holder of a Note 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)          the Holders of at least 25% in aggregate principal amount of the then outstanding Notes have requested in writing that the Trustee pursue the remedy;
 
(3)          such Holders have offered and, if requested, agreed to provide the Trustee with security or indemnity satisfactory to the Trustee against any loss, liability or expense;
 
120

(4)          the Trustee has not complied with such written request made hereunder within 60 days after the receipt thereof and the offer and, if requested, the agreement to provide security or indemnity; and
 
(5)          the Holders of a majority in aggregate principal amount of the then outstanding Notes have not given the Trustee a direction that, in the reasonable opinion of the Trustee, is inconsistent with such request within such 60-day period.
 
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder, it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any actions or forbearances by a Holder are unduly prejudicial to other Holders.
 
Section 6.07           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, and interest, if any, on its Note, on or after the respective due dates expressed or provided for in such Note (including in connection with an Offer to Purchase), 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 6.08           Collection Suit by Trustee.
 
If an Event of Default specified in Section 6.01(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 and any other obligor on the Notes, including the Guarantors, for the whole amount of principal of, premium, if any, and interest, if any, remaining unpaid on the Notes, together with interest, if any, on overdue principal and, to the extent lawful, interest, if any, and such further amount as shall be sufficient to cover the costs and expenses of collection, including the compensation, expenses, disbursements and advances of the Trustee and its agents and counsel.
 
Section 6.09           Restoration of Rights and Remedies.
 
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceedings, the Company, the Guarantors, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding has been instituted.
 
Section 6.10           Rights and Remedies Cumulative.
 
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.07, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy are, to the extent permitted by law, cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
 
121

Section 6.11           Delay or Omission Not Waiver.
 
No delay or omission by the Trustee or any Holder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein.  Every right and remedy given by this Article 6 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
 
Section 6.12           Trustee May File Proofs of Claim.
 
The Trustee may file 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 compensation, expenses, disbursements and advances of the Trustee and its agents and counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes, including the Guarantors), its creditors or its property and is entitled and empowered to participate as a member in any official committee of creditors appointed in such matter and to collect, receive and distribute any money or other property payable or deliverable on any such claims.  Any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the compensation, expenses, disbursements and advances of the Trustee and its agents and counsel and any other amounts due the Trustee under Section 7.07.  To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 out of the bankruptcy estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.  Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to, or accept or adopt on behalf of any Holder, any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
 
Section 6.13           Priorities.
 
122

Subject to the provisions of the Intercreditor Agreement and the Collateral Documents, if the Trustee collects any money or property pursuant to this Article 6, it shall pay out the money in the following order:
 
(1)          to the Trustee, and its agents, counsel, accountants and experts, for amounts due under Section 7.07, including payment of all compensation, expenses and liabilities incurred by, all indemnification obligations owed to, and all advances made by, the Trustee and the costs and expenses of collection;
 
(2)          to Holders for amounts due and unpaid on the Notes for principal, premium, if any, and interest, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, if any, respectively; and
 
(3)          to the Company or to such party as a court of competent jurisdiction shall direct, including a Guarantor, if applicable.
 
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.13.  Promptly after any record date is set pursuant to this Section 6.13, the Trustee shall cause notice of such record date and payment date to be given to the Company and to each Holder in the manner set forth in Section 13.01.
 
Section 6.14           Undertaking for Costs.
 
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in such suit of an undertaking to pay the costs of the suit and may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant.  This Section 6.14 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in aggregate principal amount of the then outstanding Notes.
 
ARTICLE 7

TRUSTEE
 
Section 7.01           Duties of Trustee.
 
(a)           If an Event of Default has occurred and is continuing and a Responsible Officer shall have actual knowledge or written notice of such Event of Default, the Trustee shall, prior to receipt of directions, if any, from the Required Consenting Holders, 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)           Subject to paragraph (a) above:
 
123

(1)          the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, the Collateral Documents or the Intercreditor Agreement, and no implied covenants or obligations shall be read into this Indenture, the Collateral Documents or the Intercreditor Agreement against the Trustee; and
 
(2)          in the absence of willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture.  However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (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 negligent action, its own negligent failure to act, or its own willful misconduct, except that:
 
(1)          this paragraph does not limit the effect of paragraphs (a) or (b) of this Section 7.01;
 
(2)          the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved in a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and
 
(3)          the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with this Indenture and/or a direction received by it pursuant to Sections 6.02, 6.03 or 6.05 hereof;
 
(4)          except for an Event of Default under Sections 6.01(a)(1) or (2) hereof, the Trustee shall not be deemed to have notice or be charged with knowledge of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or shall have received from the Company or the Holders of not less than 25% in aggregate principal amount of the Notes then outstanding written notice thereof at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.  In the absence of any such notice or actual knowledge, and except for a default under Sections 6.01(a)(1) or (2) hereof, the Trustee may conclusively assume that no Default or Event of Default exists;
 
(5)          the Trustee shall not have any duty (A) to review any recording, filing or depositing of this Indenture or any agreement referred to herein or in the Collateral Documents or the Intercreditor Agreement or any financing statement or amendments to a financing statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any re-recording re-filing or re-depositing of any thereof, (B) to see to any insurance or (C) to see to the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Collateral or otherwise; and
 
124

(6)          knowledge or information acquired by (i) GLAS in any of its respective capacities hereunder or under any other document related to this transaction shall not be imputed to GLAS in any of its other capacities hereunder or under such other documents except to the extent their respective duties are performed by Responsible Officers in the same division of GLAS, and vice versa, and (ii) any Affiliate of GLAS shall not be imputed to GLAS in any of its respective capacities.
 
(d)           Subject to this Article 7, if an Event of Default occurs and is continuing, the Trustee shall be under no obligation to exercise any of its rights or powers under this Indenture at the request or direction of any of the Holders unless the Holders have offered to the Trustee indemnity and security satisfactory to it against any loss, liability or expense.
 
(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. The Trustee or its Affiliates are permitted to receive additional compensation (not payable under this Indenture) that could be deemed to be in the Trustee’s economic self-interest for (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or subcustodian for the Company or its Affiliates, (ii) using Affiliates to effect transactions in certain Collateral and (iii) effecting transactions in certain Collateral.
 
(f)            Money held in trust or as agent by the Trustee need not be segregated from other funds except to the extent required by law and except for money held in trust or as agent under Article 8.
 
(g)           No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur liability. The Trustee shall be under no obligation to exercise any of its rights or powers, if it shall have grounds to believe that repayment of such funds and adequate indemnity against such risk or liability is not reasonably assured to it.
 
(h)           Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee or in any other way relating to the Trustee shall be subject to the provisions of this Section 7.01.
 
Section 7.02           Rights of Trustee.
 
(a)           The Trustee may conclusively rely on, and shall be fully protected in acting or refraining from acting in accordance with any resolution, certificate, statement, instrument, Officer’s Certificate, opinion, report, notice, request, direction, consent, order, bond, note or other document believed by it to be genuine and to have been signed or presented to it pursuant to this Indenture by the proper Person.  The Trustee shall be under no obligation to inquire as to the adequacy, accuracy or sufficiency of any such information or be under any obligation to make any calculation or verifications in respect of any such information and shall be under no obligation to investigate any fact or matter stated in the document and shall not be liable for any loss that may be occasioned thereby, 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.  In the case of any document which is specifically required to be furnished to the Trustee pursuant to any provision hereof, the Trustee shall examine the document to determine whether it conforms to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
 
125

(b)           Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both conforming to Section 13.03.  The Trustee shall not be liable for any action it takes or omits to take in good faith in conclusive reliance on the Officer’s Certificate or Opinion of Counsel.
 
(c)           The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent 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.
 
(e)           The Trustee may, including as a condition to the taking, suffering or omitting of any action by it hereunder, consult with counsel of its selection, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the Notes, including any Opinion of Counsel, shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel, including any Opinion of Counsel.
 
(f)            The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder. The Trustee shall not be under any obligation to exercise any of the rights or powers vested in it by this Indenture, or to honor the request or direction of any of the Holders of the Notes pursuant to this Indenture to institute, conduct or defend any litigation hereunder in relation hereto, unless such Holder shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
 
(g)           The Trustee shall not be bound to ascertain or inquire as to the performance or observance of any covenants, conditions, or agreements on the part of the Company, except as otherwise set forth herein, but the Trustee may require of the Company full information and advice as to the performance of the covenants, conditions and agreements contained herein.
 
126

(h)           The permissive rights of the Trustee to do things enumerated in this Indenture or any discretionary act enumerated herein shall not be construed as a duty and if the Trustee takes any such action it shall not be answerable for other than its gross negligence or willful misconduct in the performance of such act.
 
(i)            The Trustee will not be liable to any person if prevented or delayed in performing any of its obligations or discretionary functions under this Indenture by reason of any present or future law applicable to it, by any governmental or regulatory authority or by any circumstances beyond its control.
 
(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, including the Collateral Agent. Absent willful misconduct or gross negligence, each Paying Agent and Registrar shall not be liable for acting in good faith on instructions believed by it to be genuine and from the proper party. This section shall survive the resignation or removal of the Trustee or satisfaction and discharge of this Indenture.
 
(k)           In the event the Trustee receives inconsistent or conflicting requests and indemnity from two or more groups of Holders, each representing less than a majority in aggregate principal amount of the Notes then outstanding, pursuant to the provisions of this Indenture, the Trustee, in its sole discretion, may determine what action, if any, will be taken and shall not incur any liability for its failure to act until such inconsistency or conflict is, in its reasonable opinion, resolved.
 
(l)            The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company personally or by agent or attorney.
 
(m)          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 to resume performance as soon as practicable under the circumstances and that the Company may elect to replace the Trustee pursuant to Section 7.08(a)(4) under such circumstances.
 
(n)           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.
 
127

(o)           No provision of this Indenture shall require the Trustee to do anything which, in its reasonable opinion, may be illegal or contrary to applicable law or regulation.
 
(p)           Any request or direction of the Company mentioned herein shall be sufficiently evidenced by an Officer’s Certificate and any resolution of the Board of Directors may be sufficiently evidenced by a board resolution.
 
(q)           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, which certificate may be updated and delivered to the Trustee at any time by the Company in its discretion.
 
(r)            The Trustee shall not have any obligation or duty to monitor, determine or inquire as to compliance, and shall not be responsible or liable for compliance with restrictions on transfer, exchange, redemption, purchase or repurchase, as applicable, of minimum denominations imposed under this Indenture or under applicable law or regulation with respect to any transfer, exchange, redemption, purchase or repurchase, as applicable, of any interest in any Notes.
 
(s)           The Trustee shall not be under any obligation to take any action in the performance of its respective duties hereunder that would be in violation of applicable law.
 
(t)            The Trustee may retain professional advisors to assist it in performing its duties under this Indenture. The Trustee may consult with such professional advisors or with counsel, and the advice or opinion of such professional advisors or counsel with respect to legal or other matters relating to this Indenture and the Notes shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it hereunder in good faith and in reliance on the advice or opinion of such counsel.
 
(u)           The Trustee may assume without inquiry, in the absence of a Responsible Officer of the Trustee receiving written notice to the contrary, that the Company is duly complying with its obligations contained in this Indenture required to be performed and observed by it, and that no Default or Event of Default or other event which would require repayment of the Notes has occurred.
 
(v)           If any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such event occurred.
 
(w)          To the extent that the Trustee is granted any discretion herein to act or not act, the Trustee shall have absolute and uncontrolled discretion as to the exercise of its rights and discretions, the exercise or non-exercise of which as between the Trustee and the Holders shall be conclusive and binding on the Holders, subject to Section 7.01 hereof.
 
128

(x)            At any time that the security granted pursuant to the Collateral Documents has become enforceable and the Holders have given a direction to the Trustee to enforce such security, the Trustee is not required to give any direction to the Collateral Agent with respect thereto unless it has been indemnified and/or secured in accordance with Section 7.01(g). In any event, in connection with any enforcement of such security, the Trustee is not responsible for:
 
(1)          any failure of the Collateral Agent to enforce such security within a reasonable time or at all;
 
(2)          any failure of the Collateral Agent to pay over the proceeds of enforcement of the security;
 
(3)          any failure of the Collateral Agent to realize such security for the best price obtainable;
 
(4)          monitoring the activities of the Collateral Agent in relation to such enforcement;
 
(5)          taking any enforcement action itself in relation to such security;
 
(6)          agreeing to any proposed course of action by the Collateral Agent which could result in the Trustee incurring any liability for its own account; or
 
(7)          paying any fees, costs or expenses of the Collateral Agent.
 
Section 7.03           Individual Rights of Trustee.
 
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.  Any Paying Agent or Registrar may do the same with like rights.  However, in the event that a Responsible Officer of the Trustee becomes aware of any conflicting interest at the time a Default or Event of Default has occurred, the Trustee must eliminate such conflict within 90 days or resign, unless such Default or Event of Default has been cured or waived prior to such 90th day.  The Trustee must also comply with Section 7.10.
 
Section 7.04           Trustee’s Disclaimer.
 
The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture, Note Guarantees or the Notes, it shall not be accountable for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement 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. The recitals contained herein and in the Notes shall not be taken as statements of the Trustee and the Trustee does not assume any responsibility for their correctness.
 
129

To the extent permitted by applicable law, no recourse may be taken, directly or indirectly, with respect to the obligations of the Company or the Guarantors under the Note, the Note Guarantees or this Indenture or any related documents, any certificate or other writing delivered in connection therewith, against: (i) the Trustee in its individual capacity; (ii) any partner, owner, beneficiary, agent, officer, director, employee, agent, successor or assign of the Trustee, each in its individual capacity; or (iii) any holder of equity in the Trustee.
 
Section 7.05           Notice of Defaults.
 
If a Default occurs and is continuing and if a Responsible Officer of the Trustee has received written notice thereof, the Trustee shall send to each Holder a notice of the Default within 60 days after it occurs.  Except in the case of an Event of Default specified in clauses (1) or (2) of Section 6.01(a), the Trustee may withhold from the Holders notice of any continuing Default if the Trustee determines in good faith that withholding the notice is in the interests of the Holders.  Notice to Holders under this Section 7.05 shall be given in the manner and to the extent provided in Trust Indenture Act Section 313(c) (whether or not applicable by law).
 
Section 7.06           Reports by Trustee to Holders of the Notes.
 
(a)           The Trustee shall transmit to Holders reports concerning the Trustee and its actions under this Indenture.  The interval between transmission of reports to be transmitted at intervals shall be 12 months.  Such report shall be due on March 1 of each year following the first issuance of Notes.
 
(b)           A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which the Notes are listed, with the Commission and with the Company.  The Company shall promptly notify the Trustee in writing when the Notes are listed on any stock exchange and of any delisting therefrom.
 
Section 7.07           Compensation and Indemnity.
 
130

(a)           The Company and each Guarantor, jointly and severally, shall pay to the Trustee and the Collateral Agent from time to time such compensation for its services as shall be agreed to in writing from time to time by the Company, the Guarantors and the Trustee or the Collateral Agent, as applicable.  The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.  The Company and each Guarantor, jointly and severally, shall reimburse the Trustee and the Collateral Agent upon request for all documented and reasonable out-of-pocket expenses incurred or made by it, including costs of collection, in addition to the compensation for its services.  Such expenses shall include the documented and reasonable compensation and expenses, disbursements and advances of the Trustee’s or the Collateral Agent’s agents, counsel, accountants and experts.  The Company and the Guarantors, jointly and severally, shall (in relation to any Guarantor, subject to the limitations in Article 10 hereto) indemnify the Trustee, its agents, representatives, officers, directors, employees and attorneys against any and all loss, liability, damage, claim (whether asserted by the Company, a Guarantor, a Holder or any other person) or expense (including documented and reasonable compensation and expenses and disbursements of the Trustee’s counsel) incurred by it in connection with the administration of this trust or agency and the performance of its duties or in connection with the exercise or performance of any of its rights or powers hereunder, and including reasonable attorney’s fees and expenses and court costs incurred in connection with any action, claim or suit brought to enforce the Trustee’s right to compensation, reimbursement or indemnification.  Each of the Trustee and the Collateral Agent shall notify the Company promptly of any claim for which it may seek indemnity.  Failure by the Trustee or the Collateral Agent to so notify the Company shall not relieve the Company of its obligations hereunder, except to the extent that such delay increases the liability of the Company or a Guarantor.  At the Trustee’s sole discretion, the Company shall defend the claim and the Trustee or the Collateral Agent, as applicable, shall provide reasonable cooperation and may participate at the Company’s expense in such defense.  The Trustee or the Collateral Agent, as applicable, may have separate counsel of its selection and the Company shall pay the documented and reasonable fees and expenses of such counsel; provided, however, that the Company shall not be required to pay such fees and expenses if the Company assumes such defense unless there is a conflict of interest between the Company and the Trustee in connection with such defense as determined by Trustee or the Collateral Agent, as applicable, in consultation with counsel.  Notwithstanding the foregoing, the Company need not reimburse any expense or indemnify against any loss, liability, damage, claim or expense incurred by the Trustee or the Collateral Agent through the Trustee’s or the Collateral Agent’s own willful misconduct or gross negligence as finally adjudicated by a court of competent jurisdiction.
 
(b)           To secure the payment obligations of the Company and the Guarantors in this Section 7.07, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, in its capacity as Trustee, other than money or property held in trust or as agent to pay principal of and interest, if any, on particular Notes. Such Lien will survive the satisfaction and discharge of this Indenture or the resignation or removal of the Trustee.
 
(c)           The obligations of the Company and Guarantors pursuant to this Section 7.07 shall survive the resignation or removal of the Trustee and the discharge of this Indenture.  When the Trustee incurs expenses or renders service after the occurrence of an Event of Default specified in Section 6.01(a)(7) or (8) with respect to the Company, the expenses and compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under the Bankruptcy Law.
 
131

Section 7.08           Replacement of Trustee.
 
(a)           The Trustee may resign at any time by giving 30 days’ prior notice of such resignation to the Company and be discharged from the trust hereby created by so notifying the Company.  The Holders of a majority in aggregate principal amount of the outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in writing.  The Company shall remove the Trustee if:
 
(1)          the Trustee fails to comply with Section 7.10;
 
(2)          Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
 
(3)          a receiver or public officer takes charge of the Trustee or its property; or
 
(4)          Trustee otherwise becomes incapable of acting.
 
(b)           If the Trustee resigns or has been removed by the Holders, Holders of a majority in principal amount of the outstanding Notes may appoint a successor Trustee.  Otherwise, if the Trustee resigns or is removed, or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee.  Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the successor Trustee to replace it with another successor Trustee appointed by the Company.
 
(c)           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 send a notice of its succession to Holders, and include in the notice its name and address of its Corporate Trust Office.  The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07.
 
(d)           If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at least 10% in principal amount of the Notes may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee.
 
(e)           If the Trustee fails to comply with Section 7.10, any Holder of Notes may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee with respect to the Notes.
 
132

(f)            Notwithstanding the replacement of the Trustee pursuant to this Section, the Company’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.
 
Section 7.09           Successor Trustee by Merger.
 
(a)           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, if such resulting, surviving or transferee corporation or banking association is otherwise eligible under this Indenture, be the successor Trustee.
 
(b)           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 the Notes provide or this Indenture provides that the certificate of the Trustee shall have.
 
Section 7.10           Eligibility; Disqualification.
 
The Trustee hereunder shall at all times be a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least the minimum amount required by the Trust Indenture Act. Neither the Company, a Guarantor nor any person directly or indirectly controlling, controlled by, or under common control with the Company or a Guarantor may serve as Trustee.
 
Section 7.11           Preferential Collection of Claims Against the Company.
 
The Trustee shall comply with Trust Indenture Act Section 311(a) (whether or not applicable by law), excluding any creditor relationship listed in Trust Indenture Act Section 311(b).  A Trustee who has resigned or been removed shall be subject to Trust Indenture Act Section 311(a) (whether or not applicable by law) to the extent indicated therein.
 
Section 7.12           Collateral Documents; Intercreditor Agreement.
 
By their acceptance of the Notes, the Holders hereby authorize and direct the Trustee and Collateral Agent, as the case may be, to execute and deliver the Intercreditor Agreement and any other Collateral Documents in which the Trustee or the Collateral Agent, as applicable, is named as a party, including any Collateral Documents or Intercreditor Agreements executed after the Issue Date.  It is hereby expressly acknowledged and agreed that, in doing so, the Trustee and the 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 Agreement or any other Collateral Documents, the Trustee and the 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).
 
133

ARTICLE 8

LEGAL DEFEASANCE AND COVENANT DEFEASANCE
 
Section 8.01           Legal Defeasance.
 
(a)           Subject to the satisfaction of the conditions set forth in Section 8.03, the Company may elect, at its option, to have its obligations discharged with respect to the outstanding Notes (“Legal Defeasance”).
 
(b)           For this purpose, Legal Defeasance means that the Company will be deemed to have paid and discharged the entire indebtedness represented by the outstanding Notes which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.04 and the other Sections of this Indenture referred to in (1), (2), (4) and (5) below, and to have satisfied all of its other obligations under such Notes, this Indenture and the other Notes Documents, including that of the Guarantors (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder:
 
(1)          the rights of Holders of such Notes to receive payments in respect of the principal of and any premium and interest on such Notes when payments are due;
 
(2)          the Company’s obligations with respect to such Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust or as agent;
 
(3)          the rights, powers, trusts, duties and immunities of the Trustee;
 
(4)          the Company’s right of optional redemption pursuant to Section 3.07; and
 
(5)          this Section 8.01.
 
134

(c)           Following the Company’s exercise of its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default.
 
(d)           Subject to compliance with this Article 8, the Company may exercise its option under this Section 8.01 notwithstanding the prior exercise of its option under Section 8.02.
 
Section 8.02           Covenant Defeasance.
 
(a)           Subject to the satisfaction of the conditions set forth in Section 8.03, the Company may elect, at its option, to be released from its obligations under the covenants contained in Sections 4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.14, 4.15, 4.16, 4.17, 4.19, 4.21, 4.22 and 4.23 and clause (5) of Section 5.01(a), including, without limitation, its obligation to make Offers to Purchase in connection with Asset Sales and any Change of Control and any omission to comply with such obligation shall not constitute a Default or an Event of Default with respect to the Notes, and the Guarantors shall be deemed to have been discharged from their obligations with respect to all Note Guarantees, on and after the date the conditions set forth in Section 8.03 are satisfied (“Covenant Defeasance”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes).
 
(b)           For this purpose, Covenant Defeasance means that, with respect to this Indenture and the outstanding Notes, the Company 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 6.01, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby.  In addition, upon the Company’s exercise of the option under this Section 8.02, subject to the satisfaction of the conditions set forth in Section 8.03, Sections 6.01(a)(3), 6.01(a)(4) (only with respect to the failure of the Company to comply with clause (3) of Section 5.01(a) and with respect to covenants that are released as a result of such Covenant Defeasance), 6.01(a)(5), 6.01(a)(6), 6.01(a)(7) (solely with respect to Significant Subsidiaries or a group of Restricted Subsidiaries of the Company that, taken together would constitute a Significant Subsidiary), 6.01(a)(8) (solely with respect to Significant Subsidiaries or a group of Restricted Subsidiaries of the Company that, taken together would constitute a Significant Subsidiary) and 6.01(a)(9), in each case, shall not constitute Events of Default.
 
Section 8.03           Conditions to Legal or Covenant Defeasance.
 
(a)           In order to exercise either Legal Defeasance or Covenant Defeasance with respect to outstanding Notes, as provided for in this Article 8:
 
135

(1)          the Company must irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust and as agent for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefits of the Holders of such Notes: (A) money in an amount, or (B) U.S. Government Obligations, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount or (C) a combination thereof, in each case sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness in respect of the principal of and premium, if any, and interest on such Notes on the Stated Maturity thereof or (if the Company has made irrevocable 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) the redemption date thereof, as the case may be, in accordance with the terms of this Indenture and such Notes;
 
(2)          in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable United States federal income tax law, in either case (A) or (B) to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of such Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit, defeasance and discharge to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, defeasance and discharge were not to occur;
 
(3)          in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such outstanding Notes will not recognize gain or loss for United States federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Notes and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and covenant defeasance were not to occur;
 
(4)          the Company shall have delivered to the Trustee a ruling received from the Canada Revenue Agency or an Opinion of Counsel reasonably acceptable to the Trustee and qualified to practice law in Canada, in each case to the effect that Holders and beneficial owners of the outstanding Notes will not recognize income, gain or loss for applicable Canadian federal, provincial or territorial income tax or other tax purposes as a result of such Legal Defeasance or Covenant Defeasance, as applicable, and will only be subject to applicable Canadian federal, provincial and territorial income tax and other taxes on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance or Covenant Defeasance, as applicable, had not occurred;
 
136

(5)          no Default or Event of Default with respect to the outstanding Notes shall have occurred and be continuing at the time of such deposit after giving effect thereto (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien to secure such borrowing);
 
(6)          in the event that this Indenture is qualified under the Trust Indenture Act, such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Notes are in default within the meaning of such Act);
 
(7)          such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or material instrument (other than the Indenture) to which the Company is a party or by which the Company is bound; and
 
(8)          the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with.
 
Section 8.04           Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.
 
(a)           Subject to Section 8.05, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to Section 8.03 in respect of the outstanding Notes shall be held in trust and as agent 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 or a Guarantor acting as Paying Agent) as the Trustee may determine, to the Holders of all sums due and to become due thereon in respect of principal, premium, if any, and interest, if any, on the Notes, 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, the U.S. Government Obligations deposited pursuant to Section 8.03 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.

(b)           Anything in this Article 8 to the contrary notwithstanding, the Trustee shall 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 8.03 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 8.03(a)), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
 
137

Section 8.05           Repayment to the Company.
 
Subject to any applicable abandoned property law, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust and as agent for the payment of the principal, premium, if any, or interest on any Note and remaining unclaimed for two years after such principal, premium, if any, or interest, if any, has become due and payable shall be paid to the Company on its request or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease.
 
Section 8.06           Reinstatement.
 
If the Trustee or Paying Agent is unable to apply any U.S. dollars or U.S. Government Obligations in accordance with Section 8.01 or Section 8.02, 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, the Notes and the Note Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.01 or Section 8.02 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.01 or Section 8.02, as the case may be; provided that, if the Company makes any payment of principal, premium, if any, or interest, if any, on any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders to receive such payment from the money held by the Trustee or Paying Agent.
 
ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER
 
Section 9.01           Without Consent of Holders.
 
(a)           Notwithstanding Section 9.02, without the consent of any Holder, the Company, the Guarantors and the Trustee and/or the Collateral Agent, at any time and from time to time, may enter into one or more indentures supplemental to this Indenture, the Collateral Documents and/or the Intercreditor Agreement for any of the following purposes:
 
(1)          to evidence the succession of another Person to the Company and the assumption by any such Surviving Entity of the covenants of the Company in this Indenture, the Note Guarantees, the Notes and any Collateral Document in accordance with the terms of this Indenture and the Collateral Documents;
 
(2)          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;
 
(3)          to add additional Events of Default;
 
138

(4)          to provide for certificated Notes in addition to or in place of the uncertificated Notes;
 
(5)          to evidence and provide for the acceptance of appointment under this Indenture by a successor Trustee;
 
(6)          to provide for or confirm the issuance of Additional Notes in accordance with the terms of this Indenture;
 
(7)          to add a Guarantor or to release a Guarantor in accordance with the terms of this Indenture;
 
(8)          to cure any ambiguity, defect, omission, mistake or inconsistency;
 
(9)          to make any other provisions with respect to matters or questions arising under this Indenture; provided that such actions pursuant to this clause (9) shall not adversely affect the interests of the Holders in any material respect, as determined in good faith by the Board of Directors of the Company and as conclusively evidenced by an Officer’s Certificate delivered to the Trustee;
 
(10)        to effect or maintain the qualification of this Indenture under the Trust Indenture Act;
 
(11)        to add additional assets as Collateral or make, complete or confirm any grant of security interest in any property or assets as additional Collateral securing the obligations under this Indenture, the Notes, the Notes Guarantees and the Collateral Documents, including when permitted or required by this Indenture or any of the Collateral Documents, or any release, termination or discharge of Collateral when permitted or required by this Indenture or any of the Collateral Documents;
 
(12)        to provide for the issuance of exchange securities which shall have terms substantially identical in all respects to the Notes (except that the transfer restrictions contained in the Notes shall be modified or eliminated as appropriate) and which shall be treated, together with any outstanding Notes, as a single class of securities;
 
(13)        to enter into or amend the Intercreditor Agreement and/or the Collateral Documents (or supplement the Intercreditor Agreement and/or the Collateral Documents) under circumstances provided therein including if the Company or any Restricted Subsidiary Incurs Future First Lien Debt; or
 
(14)        to secure any Future First Lien Debt, Junior Priority Debt or First Priority Obligations to the extent permitted under this Indenture, the Collateral Documents and the Intercreditor Agreement.
 
139

(b)           Upon the request of the Company, and upon receipt by the Trustee and/or the Collateral Agent, as applicable, of the documents described in Section 13.03, the Trustee and/or the Collateral Agent, as applicable, shall join with the Company and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and make any further appropriate agreements and stipulations that may be therein contained, but the Trustee and/or the Collateral Agent, as applicable, shall not be obligated to enter into such amended or supplemental indenture that affects their respective rights, duties or immunities under this Indenture or otherwise.
 
(c)           After an amendment, supplement or waiver under this Section 9.01 becomes effective, the Company shall send to the Holders of Notes affected thereby a written notice briefly describing the amendment, supplement or waiver.  Any failure of the Company to send such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.
 
In connection with any amendment or supplement, the Company shall deliver to the Trustee an Opinion of Counsel and an Officer’s Certificate that meet the requirements of Section 13.03 and Section 13.04 on which the Trustee may rely.

Section 9.02           With Consent of Holders.
 
(a)          With the consent of the Required Consenting Holders (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes), the Company, the Guarantors and the Trustee and/or the Collateral Agent may amend this Indenture, the Collateral Documents and/or the Intercreditor Agreement for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture or the Notes or modifying in any manner the rights of the Holders of the Notes under this Indenture, including the definitions set forth herein; provided, however, that no such amendment shall, without the consent of the Holder of each outstanding Note affected thereby:
 
(1)          change the Stated Maturity of any Note, or of any installment of interest on any Note, reduce the amount payable in respect of the principal thereof or the rate of interest thereon or any premium payable thereon, reduce the amount that would be due and payable on acceleration of the maturity thereof, change the place of payment where, or the coin or currency in which, any Note or any premium or interest thereon is payable, impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof or change the date on which any Notes may be subject to redemption or reduce the Redemption Price therefor;
 
(2)          reduce the percentage in aggregate principal amount of the outstanding Notes, the consent of whose Holders is required for any such amendment or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture;
 
(3)          modify the obligations of the Company to make Offers to Purchase upon a Change of Control or from the Excess Proceeds of Asset Sales if such modification is made after the time that the Company is required to make an Offer to Purchase in connection with a Change of Control or Asset Sale;
 
140

(4)          modify or change any provision of this Indenture, the Collateral Documents or the Intercreditor Agreement affecting the ranking of the Notes or any Note Guarantee in a manner adverse to the Holders of the Notes;
 
(5)          make any change in the provisions of the Intercreditor Agreement or this Indenture dealing with the application of proceeds of the Collateral that would adversely affect the Holders of the Notes in any material respect;
 
(6)          make any change to Section [   ] of the Security Agreement, the Priority Waterfall or any other “waterfall” provisions of the Notes Documents, except as otherwise provided by the Notes Documents;
 
(7)          modify any of the provisions of this Section 9.02(a) or the definition of the terms “Required Consenting Holders” and “Applicable Voting Percentage” or provisions relating to waiver of Defaults or covenants, except to increase any percentage required for such actions or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Note affected thereby; or
 
(8)          release any Note Guarantees required to be maintained under this Indenture (other than in accordance with the terms of this Indenture.
 
(b)           In addition, without the consent of the Holders of at least 85.0% in aggregate principal amount of the then outstanding Notes (provided that such percentage shall be reduced to 66.66% at any time the Applicable Voting Percentage is 50.1%), no amendment, supplement or waiver may (1) increase the maximum principal amount of the Revolving Credit Facility permitted under clause (23) of the definition of “Permitted Debt” on the Issue Date, (2) subordinate the Liens on Collateral securing the Notes to Liens securing any other Debt or increase in the amount of Debt that is permitted to rank senior to the Liens of Holders of the Notes or (3) modify any Collateral Document or the provisions of this Indenture dealing with the Collateral Documents or application of trust monies under the Collateral Documents in a manner that would release all or substantially all of the Collateral from the Liens securing the Notes and the Note Guarantees, other than in accordance with this Indenture, the Collateral Documents and the Intercreditor Agreement.
 
(c)           Section 2.08 and Section 2.09 shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.02.
 
(d)           Upon the request of the Company, and upon the filing with the Trustee and/or the Collateral Agent, as applicable, of evidence satisfactory to the Trustee and/or the Collateral Agent of the consent of the Holders as aforesaid, and upon receipt by the Trustee and/or the Collateral Agent, as applicable, of the documents described in Section 13.03, the Trustee and/or the Collateral Agent, as applicable, shall join with the Company and the Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture affects their respective rights, duties or immunities under this Indenture or otherwise, in which case the Trustee and/or the Collateral Agent, as applicable, may in their discretion, but shall not be obligated to, enter into such amended or supplemental indenture.
 
141

(e)           It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver.  It shall be sufficient if such consent approves the substance thereof.
 
(f)            After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company shall send to the Holders of Notes affected thereby a notice briefly describing the amendment, supplement or waiver.  Any failure of the Company to send such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.
 
(g)           A consent to any amendment, supplement or waiver of this Indenture, the Notes or any Note Guarantee by any Holder given in connection with a tender of such Holder’s Notes shall not be rendered invalid by such tender.
 
Section 9.03           Record Dates for Consents.
 
The Company may, but shall not be obligated to, fix a record date pursuant to Section 1.07 for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver.
 
Section 9.04           Notation on or Exchange of Notes.
 
(a)           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 Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.
 
(b)           Failure to make the appropriate notation or issue a new Note shall not impair or affect the validity and effect of any such amendment, supplement or waiver.
 
Section 9.05           Trustee and Collateral Agent to Sign Amendments, Etc.
 
The Trustee and Collateral Agent shall sign any amendment, supplement or waiver authorized pursuant to this Article 9 if the amendment, supplement or waiver does not adversely affect the rights, duties, liabilities or immunities of the Trustee and the Collateral Agent.  In executing any amendment, supplement or waiver, the Trustee and the Collateral Agent shall receive and (subject to Section 7.01) shall be fully protected in conclusively relying upon, in addition to the documents required by Section 13.03, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture and that such amendment, supplement or waiver is the legal, valid and binding obligation of the Company and any Guarantor party thereto, enforceable against them in accordance with its terms, subject to customary exceptions, and complies with the provisions hereof.
 
142

ARTICLE 10
 
GUARANTEES
 
Section 10.01         Guarantee.
 
(a)           Subject to this Article 10, each of the Guarantors hereby, jointly and severally, irrevocably and unconditionally guarantees, on a first lien senior secured basis, to each Holder and to the Trustee and the Collateral Agent and their successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes, the other Notes Documents or the obligations of the Company hereunder or thereunder, that: (1) the principal, premium, if any, and interest, if any, on the Notes shall be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and interest on the Notes, if any, if lawful, and all other Obligations of the Company to the Holders, the Collateral Agent or the Trustee hereunder or under the Notes or the other Notes Documents shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise.  Failing payment by the Company when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately.  The Company hereby fully and unconditionally guarantees the Guarantee of each Guarantor on an unsecured, unsubordinated basis.  Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
 
(b)           The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.  Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture, or pursuant to Section 10.07.
 
(c)           Each of the Guarantors also agrees, jointly and severally, to pay any and all costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee, the Collateral Agent or any Holder in enforcing any rights under this Section 10.01.
 
143

(d)           If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, examiner, trustee, liquidator or other similar official acting in relation to the Company or the Guarantors, any amount paid either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
 
(e)           Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby.  Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article 6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee.  The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantees.
 
(f)            Each Note Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or the Note Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made.  In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
 
(g)           In case any provision of any Note Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
 
(h)           Each payment to be made by a Guarantor in respect of its Note Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
 
Section 10.02         Limitation on Guarantor Liability.
 
Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent conveyance or a fraudulent transfer for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, Canadian, provincial or state law to the extent applicable to any Note Guarantee.  To effectuate the foregoing intention, the Trustee, the Collateral Agent, the Holders and the Guarantors hereby irrevocably agree that the obligations of each Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law.  Each Guarantor that makes a payment under its Note Guarantee shall be entitled upon payment in full of all Note Guarantees under this Indenture to a contribution from each other Guarantor in an amount equal to such other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with IFRS.  The obligations of each Guarantor are subject to the limitations set forth in Section 4.15.
 
 
144

Section 10.03         Luxembourg Provisions.
 
(a)           Each of the Luxembourg Domiciled Grantors hereby expressly accepts and confirms, for the purposes of articles 1278 and 1281 of the Luxembourg civil code, that, notwithstanding any assignment, transfer and/or novation permitted under, and made in accordance with the provisions of, this Indenture, any security interest in the Collateral pursuant to the Collateral Documents, the Notes Guarantee given under this Indenture shall be preserved for the benefit of any new Trustee.
 
(b)           For the avoidance of doubt and for the purpose of Luxembourg law only, the Note Guarantee of a Luxembourg Domiciled Grantor constitutes an independent guarantee and does not constitute a suretyship (cautionnement) in the sense of article 2011 et seq.  of the Luxembourg civil code.
 
Section 10.04         Execution and Delivery.
 
(a)           To evidence its Note Guarantee set forth in Section 10.01, each Guarantor hereby agrees that this Indenture shall be executed on behalf of such Guarantor by an Authorized Officer or person holding an equivalent title.
 
(b)           Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes.
 
(c)           If an Authorized Officer whose signature is on this Indenture no longer holds that office at the time the Trustee authenticates any Note, the Note Guarantees shall be valid nevertheless.
 
145

(d)           The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.
 
(e)           If required by Section 4.15, the Company shall cause any newly created or acquired Restricted Subsidiary to comply with the provisions of Section 4.15 and this Article 10, to the extent applicable.
 
Section 10.05         Subrogation.
 
Each Guarantor shall be subrogated to all rights of Holders against the Company in respect of any amounts paid by any Guarantor pursuant to the provisions of Section 10.01; provided that, if an Event of Default has occurred and is continuing, no Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Company under this Indenture or the Notes shall have been paid in full.
 
Section 10.06         Benefits Acknowledged.
 
Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
 
Section 10.07         Release of Note Guarantees.
 
(a)           A Note Guarantee by a Guarantor shall be automatically and unconditionally released and discharged, and no further action by such Guarantor, the Company, the Trustee or the Collateral Agent shall be required for the release of such Guarantor’s Note Guarantee, upon:
 
(1)          (A)       a sale or other transfer or disposition (including by way of merger, consolidation, arrangement or amalgamation) of all of the Capital Interests in any Guarantor to any Person that is not an Affiliate of the Company in compliance with the terms of this Indenture;
 
(B)       the sale or other transfer of all or substantially all the assets of a Guarantor (including by way of merger, consolidation, arrangement or amalgamation) to a Person that is not an Affiliate of the Company in compliance with the terms of this Indenture;
 
(C)       the merger, consolidation, arrangement or amalgamation of any Guarantor with and into the Company, another Guarantor or a Person that will become a Guarantor substantially upon the consummation of such merger, consolidation, arrangement or amalgamation;
 
146

(D)        the release of a Guarantor of all of its Guarantee obligations in respect of the Credit Facilities (other than pursuant to the Notes or this Indenture);
 
(E)        the proper designation of any Guarantor as an Unrestricted Subsidiary;
 
(F)        the occurrence of any other transaction permissible under this Indenture pursuant to which such Guarantor ceases to be a Subsidiary;
 
(G)        the election of the Company to have its obligations satisfied and discharged with respect to any outstanding Notes in accordance with the terms of this Indenture; or
 
(H)        the Company’s exercise of its Legal Defeasance option or Covenant Defeasance option in accordance with Article 8 or the discharge of the Company’s obligations under this Indenture in accordance with the terms of this Indenture; and
 
(2)          such Guarantor delivering 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 and/or release have been complied with.
 
(b)          At the written request of the Company, the Company, such Guarantor, the Trustee and the Collateral Agent shall execute and deliver any documents reasonably required in order to evidence such release, discharge and termination in respect of the applicable Note Guarantee.
 
Section 10.08         Luxembourg Guaranty Limitation.
 
Notwithstanding any provision to the contrary in this Indenture, the payment obligation of any Guarantor incorporated under the laws of Luxembourg (a “Luxembourg Guarantor”) under Article 10 of this Indenture for the Note Guarantee shall be limited at any time, with no double counting, to an aggregate amount not exceeding the higher of:
 
(1)          ninety-five per cent (95%) of the sum of the Luxembourg Guarantor’s own funds (capitaux propres) (as referred to in Annex I to the grand-ducal regulation dated December 18, 2015 setting out the form and content of the presentation of the balance sheet and profit and loss account, enforcing the Luxembourg act dated December 19, 2002 concerning the trade and companies register and the accounting and annual accounts of undertakings, as amended) (the “Own Funds”) and the Luxembourg Guarantor’s debt which is subordinated in right of payment (whether generally or specifically) to any claim of any beneficiary or any noteholder under this Indenture, as determined in good faith by the Company (the “Own Debt”), as at the date of this Indenture; and
 
147

(2)          ninety-five per cent (95%) of the sum of the Own Funds and the Own Debts, as on the date of payment of the Note Guarantee under this clause.
 
The above limitation shall not apply to any proceeds from the Notes made available, in any form whatsoever, to the Luxembourg Guarantor or any of its (current or future) direct or indirect subsidiaries; provided always that, for the avoidance of doubt, the above limitation shall not apply to any Collateral Document or any recoveries derived from the enforcement of a Holder’s rights under any Luxembourg Pledge Agreement.
 
Section 10.09         Jersey Guaranty Waivers.
 
(a)           Each Jersey Domiciled Grantor and any other Grantor that enters into a Jersey Security Agreement irrevocably and unconditionally waives and abandons any and all rights or entitlement which it has or may have under the existing or future laws of Jersey, whether by virtue of the customary law rights of droit de discussion or otherwise, to require that recourse be had to the assets of any other Guarantor or other person before any claim is enforced against it in respect of its obligations under any Notes Document.
 
(b)           Each Jersey Domiciled Grantor and any other Grantor that enters into a Jersey Security Agreement irrevocably and unconditionally waives and abandons any and all rights or entitlement which it has or may have under the existing or future laws of Jersey, whether by virtue of the customary law right of droit de division or otherwise, to require that any liability under any Notes Document be divided or apportioned with any other person or reduced in any manner.
 
Section 10.10         Swiss Guaranty Limitation.
 
Notwithstanding anything to the contrary in this Indenture, the obligations of a Guarantor incorporated in Switzerland (a “Swiss Guarantor”) and the rights of the Trustee under this Indenture are subject to the following limitations:
 
(a)           If and to the extent the obligations assumed or the security interest granted by the Swiss Guarantor under this Indenture or any other Notes Document guarantees or secures obligations of its (direct or indirect) parent company (upstream security) or its sister companies (cross-stream security) (the “Upstream or Cross-Stream Secured Obligations”) and if and to the extent payments under this Indenture or any other Notes Document or using the proceeds from the enforcement of such security interest to discharge the Upstream or Cross-Stream Secured Obligations would constitute a repayment of capital (Einlagerückgewähr/Kapitalrückzahlung), a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the payment of a (constructive) dividend (Gewinnausschüttung) by the Swiss Guarantor or would otherwise be restricted under Swiss law and practice then applicable, the payments under this Indenture or any other Notes Document or the use of proceeds of such enforcement shall be limited to the maximum amount of the Swiss Guarantor’s freely disposable shareholder equity at the time it becomes liable, or at the time of enforcement, including, without limitation, any statutory reserves which can be transferred into unrestricted, distributable reserves, in accordance with Swiss law (the “Maximum Amount”); provided that such limitation is required under the applicable law at that time; provided, further, that such limitation shall not free the Swiss Guarantor from its obligations in excess of the Maximum Amount, but merely postpone the performance date of those obligations or the discharge date out of enforcement proceeds until such time or times as performance or discharge is again permitted under then applicable law.  This Maximum Amount of freely disposable shareholder equity shall be determined in accordance with Swiss law and applicable Swiss accounting principles, and, if and to the extent required by applicable Swiss law, shall be confirmed by the auditors of the Swiss Guarantor on the basis of an interim audited balance sheet as of that time.
 
148

(b)           In respect of Upstream or Cross-Stream Secured Obligations, at the time it is required to make a payment under this Indenture, the Swiss Guarantor shall, if and to the extent required by applicable law (including tax treaties) in force at the relevant time:
 
(1)          procure that such payments or enforcement proceeds can be used to discharge Upstream or Cross-Stream Secured Obligations without deduction of Swiss Withholding Tax by discharging the liability to such tax by notification pursuant to applicable law rather than payment of the tax;
 
(2)          if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct the Swiss Withholding Tax at such rate (currently 35% at the date of this Indenture) as is in force from time to time from any such payment or enforcement proceeds used to discharge Upstream or Cross-Stream Secured Obligations; or deduct Swiss Withholding Tax at the reduced rate resulting after discharge of part of such tax by notification if the notification procedure pursuant to sub-paragraph (i) above applies for a part of Swiss Withholding Tax only, and pay, without delay, any such tax deducted to the Swiss Federal Tax Administration;
 
(3)          promptly give written notification to the Trustee that such notification or, as the case may be, deduction has been made, and provide the Trustee with an Officer’s Certificate accompanied with evidence that such a notification to the Swiss Federal Tax Administration has been made or, as the case may be, such tax deducted have been paid to the Swiss Federal Tax Administration; and
 
(4)          in the case of a deduction of Swiss Withholding Tax, use its best efforts to ensure that any person, which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment or enforcement proceeds, will, as soon as possible after such deduction: (i) request a refund of the Swiss Withholding Tax under applicable law (including tax treaties); and (ii) pay to the Trustee upon receipt any amount so refunded.
 
(c)           To the extent the Swiss Guarantor is required to deduct Swiss Withholding Tax pursuant to this Indenture, and if the Maximum Amount is not fully utilised, the Swiss Guarantor will be required to pay, directly or by way of use of the proceeds of enforcement, an additional amount so that after making any required deduction of Swiss Withholding Tax the aggregate net amount paid to the Trustee, directly or by way of use of the proceeds of enforcement, is equal to the amount which would have been paid if no deduction of Swiss Withholding Tax had been required, provided that the aggregate amount paid (including the additional amount) shall in any event be limited to the Maximum Amount.  If a refund is made to a beneficiary, such beneficiary shall transfer the refund so received to the Swiss Guarantor, subject to any right of set-off of such beneficiary pursuant to this Indenture.
 
149

(d)           The Swiss Guarantor and any holding company of the Swiss Guarantor which is a party to this Indenture shall procure that the Swiss Guarantor will promptly take and promptly cause to be taken all and any action as soon as reasonably practicable but in any event within 30 Business Days from the request of the Trustee, including, without limitation, the following:
 
(1)          the passing of any shareholders’ resolutions to approve the payment or other performance under this Indenture or any other Notes Document or the use of the enforcement proceeds, which may be required as a matter of Swiss mandatory law in force at the time of the enforcement of this Indenture or any other Notes Document or the security interest in order to allow a prompt use of the enforcement proceeds;
 
(2)          preparation of up-to-date audited balance sheet of the Swiss Guarantor;
 
(3)          confirmation of the auditors of the Swiss Guarantor that the relevant amount represents the Maximum Amount;
 
(4)          conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law);
 
(5)          revaluation of hidden reserves (to the extent permitted by mandatory Swiss law);
 
(6)          to the extent permitted by applicable law, Swiss accounting standards and this Indenture, (i) write-up or realize any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of realization, however, only if such assets are not necessary for the Swiss Guarantor’s business (nicht betriebsnotwendig), and (ii) reduce its share capital to the minimum allowed under then applicable law; provided that such steps are permitted under this Indenture and the other Notes Documents; and
 
(7)          all such other measures necessary or useful to allow the Trustee to use payments by the Swiss Guarantor or enforcement proceeds as agreed hereunder or the other Notes Documents with a minimum of limitations.
 
(e)           The limitations and procedures of this Section 10.10 shall also apply to any other obligation of a Swiss Guarantor under this Indenture or the other Notes Documents to grant economic benefits to its (direct or indirect) parent company or its sister companies, including, for the avoidance of doubt, any joint liability, any indemnity, any waiver of set-off or subrogation rights or any subordination or waiver of intra-group claims.
 
150

Section 10.11         Irish Guaranty Limitation.
 
The Note Guarantee does not apply to any liability of any Irish Domiciled Grantor incorporated in Ireland to the extent that it would be prohibited by Section 239 of the Companies Act 2014 of Ireland or would result in the Note Guarantee constituting unlawful financial assistance within the meaning of Section 82 of the Companies Act 2014 of Ireland.
 
Section 10.12         Swedish Guaranty Limitation.
 
Notwithstanding anything to the contrary in this Agreement, in relation to any Swedish Guarantor, its obligations and liabilities under this Indenture shall be limited if (and only if) required by an application of the mandatory provisions of the Swedish Companies Act (Sw. aktiebolagslagen 2005:551)) regulating (i) distribution of assets (Chapter 17, Sections 1-4 (or their equivalents from time to time)), including profits and dividends and any other form of transfer of value (Sw. värdeöverföring) within the meaning of the Swedish Companies Act, and (ii) prohibited loans, guarantees and distribution of assets and security (Chapter 21, Sections 1-3 (or their equivalents from time to time)), also taking into account any other guarantee provided by any Swedish Guarantor subject to the corresponding limitation, and it is understood that the obligations of any Swedish Guarantor for such obligations and liabilities under this Indenture shall apply only to the extent permitted by the abovementioned provisions of the Swedish Companies Act.
 
Section 10.13         Dutch Guaranty Limitation.
 
The Note Guarantee does not apply to any liability of any Dutch Domiciled Grantor to the extent that it would result in the Note Guarantee constituting unlawful financial assistance within the meaning of Section 2:98(c) of the Dutch Civil Code.
 
Section 10.14         Joint and Several Liability
 
Notwithstanding any other provision contained herein, if a “secured creditor” (as that term is defined under the Bankruptcy and Insolvency Act (Canada)) is determined by a court of competent jurisdiction not to include a Person to whom obligations are owed on a joint or joint and several basis, then the First Priority Notes Obligations of the Grantors hereunder to which the Bankruptcy and Insolvency Act (Canada) applies, to the extent such First Priority Notes Obligations secured, shall be several obligations of such Grantors.
 
151

ARTICLE 11

SATISFACTION AND DISCHARGE
 
Section 11.01         Satisfaction and Discharge.
 
(a)           The Company and the Guarantors may terminate their respective obligations under this Indenture and the Collateral Documents, and this Indenture and the Collateral Documents will cease to be of further effect as to all Notes, (a “Discharge”) when:
 
(1)          either: (A) all Notes that have been authenticated and delivered have been delivered to the Trustee for cancellation, or (B) all such Notes not theretofore delivered to the Trustee for cancellation (i) have become due and payable or (ii) will become due and payable within one year or are to be called for redemption within one year under irrevocable 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, and the Company has irrevocably deposited or caused to be deposited with the Trustee immediately available funds 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, if any, to the Stated Maturity or redemption date;
 
(2)          the Company has paid or caused to be paid all other sums then due and payable under this Indenture by the Company;
 
(3)          the deposit will not result in a breach or violation of, or constitute a default under, any other material instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound;
 
(4)          the Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or on the redemption date, as the case may be; and
 
(5)          the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent under this Indenture relating to the Discharge have been complied with.
 
(b)           Notwithstanding the satisfaction and discharge of this Indenture, if money shall have been deposited with the Trustee pursuant to this Section 11.01, the provisions of Section 11.02 and Section 8.05 shall survive.
 
Section 11.02         Application of Trust Money.
 
(a)           Subject to the provisions of Section 8.05, all money deposited with the Trustee pursuant to Section 11.01 shall be held in trust and as agent 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 or a Guarantor acting as Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, if any, and interest, if any, for whose payment such money has been deposited with the Trustee, but such money need not be segregated from other funds except to the extent required by law.
 
152

(b)           If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with Section 11.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s and any Guarantor’s obligations under this Indenture, the Notes and the Note Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01; provided that, if the Company has made any payment of principal, premium, if any, or interest, if any, on any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent, as the case may be.
 
ARTICLE 12

COLLATERAL
 
Section 12.01         Collateral Documents.  The due and punctual payment of the principal of, premium, if any, and interest (including Additional Amounts, if any) 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, if any, and interest on the Notes and performance of all other Obligations of the Company and the Guarantors to the Holders or the Trustee under this Indenture, the Notes and the other Notes Documents, according to the terms thereunder, shall be secured as provided in the Collateral Documents, which define the terms of the Liens that secure the First Priority Notes Obligations, subject to the terms of the Intercreditor Agreement.  The Trustee and the Company hereby acknowledge and agree that the Collateral Agent holds the Collateral in trust and, for the purposes of Swedish and Swiss law, as agent for the benefit of the Holders and the Trustee and pursuant to the terms of the Collateral Documents and the Intercreditor Agreement.  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 creation of the Parallel Obligation in this Article 12) and the Intercreditor Agreement 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 Agreement, and authorizes and directs the Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreement and to perform its obligations and exercise its rights thereunder in accordance therewith.  The Company shall deliver to the Collateral Agent copies of all documents required to be filed pursuant to the Collateral Documents, and will do or cause to be done all such acts and things as may be reasonably required by the next sentence of this Section 12.01, to assure and confirm to the Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents 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 purposes herein expressed.  The Company shall, and shall cause the Guarantors to, take any and all actions and make all filings (including the filing of UCC or PPSA financing statements, continuation statements and amendments thereto (or analogous procedures under the applicable laws in the relevant jurisdiction of the applicable Grantor, including in respect of a Jersey Security Agreement, to take any and all actions required to allow the Collateral Agent to register financing statements in relation to each Jersey Security Agreement on the Jersey Security Interests Register and payment of associated fees)) required to cause the Collateral Documents to create and maintain, as security for the Obligations of the Company and the Guarantors to the First Priority Notes Secured Parties under the Notes Documents, a valid and enforceable perfected (to the extent applicable in the relevant jurisdiction) Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor Agreement and the Collateral Documents), in favor of the Collateral Agent for the benefit of the Holders and the Trustee subject to no Liens other than Permitted Liens.
 
153

Section 12.02         Creation of Parallel Debt.
 
(a)           For the purposes of (a) creating Liens on Collateral in, or subject to the laws of, The Netherlands and Switzerland (and such other jurisdictions as the Trustee (on the instructions of the Holders) and the Company (each acting reasonably) agree) (together, the “Agreed Jurisdictions”) and (b) ensuring the initial and continued validity of such Liens, the Collateral Agent, the Company and the Guarantors, other than any Swedish Guarantor (each, a “Non-Swedish Obligor”), agree that notwithstanding anything to the contrary contained in this Indenture, the Notes, the Collateral Documents or the Intercreditor Agreement:
 
(1)          each Non-Swedish Obligor shall pay to the Collateral Agent, as creditor in its own right and not as representative of the Trustee or the Holders, sums equal to, and in the currency of, its Principal Obligations (as defined in Section 12.02(b)) as and when the same fall due for payment under this Indenture, the Notes, the Collateral Documents or the Intercreditor Agreement (the “Parallel Obligations”); provided that the total amount of the Parallel Obligations shall never exceed the total amount of the Principal Obligations;
 
(2)          the rights of the Trustee and the Holders, as applicable, to receive payment of the Principal Obligations are several and are separate from, and without prejudice to, the rights of the Collateral Agent to receive payment in respect of the Parallel Obligations;
 
(3)          the Collateral Agent shall have its own independent right, in its own name and stead, to demand payment of the Parallel Obligations by each Non-Swedish Obligor upon the occurrence and during the continuance of an unremedied and unwaived Event of Default;
 
(4)          the payment by any Non-Swedish Obligor of its Parallel Obligations to the Collateral Agent in accordance with this Section 12.02 (whether through direct payment by such Non-Swedish Obligor or any Lien held by the Collateral Agent securing the Parallel Obligations) shall be a good discharge in the corresponding amount of the corresponding Principal Obligations and, similarly, the payment by the Company or any Guarantor of the Principal Obligations shall be a good discharge in the corresponding amount of the corresponding Parallel Obligations owed to the Collateral Agent under this Section 12.02, in each case provided that the receiving party is able to retain the relevant payment so made;
 
154

(5)          the increase of the Principal Obligations of the Company or any Guarantor shall result in the increase of a corresponding amount of the corresponding Parallel Obligations to the Collateral Agent under this Section 12.02;
 
(6)          a Non-Swedish Obligor’s Parallel Obligation is independent from, and without prejudice to, its Principal Obligations, and shall be deemed to constitute a single obligation of that Non-Swedish Obligor to the Collateral Agent (even though that Non-Swedish Obligor may owe more than one Principal Obligation to the Trustee or any Holder under this Indenture) and an independent and separate claim of the Collateral Agent to receive payment of that Parallel Obligation (in its capacity as the independent and separate creditor under that Parallel Obligation and not as co-creditor in respect of the Principal Obligations); and
 
(7)          nothing in this Section 12.02 shall in any way limit the Collateral Agent’s right to act in the protection or preservation of, the rights under, or to enforce any, Collateral Document as contemplated by this Indenture or the relevant Collateral Document.
 
Despite the foregoing, any payment on the Parallel Obligations by a Non-Swedish Obligor shall be made to or to the order of the Trustee, unless the Trustee directs such Non-Swedish Obligor in writing to make such payment to the Collateral Agent.
 
Without limiting or affecting the Collateral Agent’s rights against the Company and the Guarantors (whether under this Section 12.02 or under any other provision of this Indenture, the Notes, the Collateral Documents or the Intercreditor Agreement and subject to the following paragraph), the Collateral Agent agrees with the Trustee and each Holder (on a several basis) that it will not exercise its rights in respect of the Parallel Obligations except with the consent of the Trustee or such Holder, as applicable.
 
Nothing in this Section 12.02 shall in any way negate or affect the obligations which each of the Company and the Guarantors has to the Trustee and the Holders under this Indenture.  For the purpose of this Section 12.02, the Collateral Agent acts in its own name and on behalf of itself and not as agent or representative of any other party hereto or as trustee and the security over the Collateral granted under this Indenture, the Notes, the Collateral Documents and the Intercreditor Agreement to the Collateral Agent to secure the Parallel Obligations is granted to the Collateral Agent in its capacity as creditor in respect of the Parallel Obligations (or to do any act reasonably incidental to any of the foregoing).
 
(b)           For the purposes of this Section 12.02, “Principal Obligations” means, in respect of each Agreed Jurisdiction and in relation to each Non-Swedish Obligor, any sums owing by it or the Company to the Trustee or any Holder under or in connection with this Indenture, the Notes or the Collateral Documents.
 
155

Section 12.03         Release of Collateral.
 
(a)           Subject to Sections 12.03(b), (c) and (d) hereof, the Liens securing the Notes will be automatically released, and the Trustee (subject to its receipt of an Officer’s Certificate and Opinion of Counsel as provided below) shall execute documents evidencing such release, or instruct the 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 (including Additional Amounts, if any) 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;
 
(B)        satisfaction and discharge of this Indenture as set forth under Article 11; or
 
(C)        a Legal Defeasance or Covenant Defeasance of this Indenture as set forth under Article 8;
 
(ii)          in whole or in part, with the consent of Holders of the Notes in accordance with Article 9 of this Indenture;
 
(iii)         in part, as to any asset constituting Collateral:
 
(A)       that is sold or otherwise disposed of:
 
I.           by any Grantor to any Person that is not a Grantor organized in the same jurisdiction in a transaction permitted under Section 4.10; provided that in the event of a transfer of assets from a Grantor to another Grantor organized in a different jurisdiction, the Trustee shall release, or instruct the Collateral Agent to release, such Lien if such transferee Grantor takes all actions reasonably necessary to grant a Lien in such transferred assets to the Collateral Agent (to the extent required by this Indenture and the Collateral Documents)),
 
II.          to the extent that such Collateral is released or no longer required to be pledged pursuant to the terms of the Credit Facility Documents then in effect (other than in connection with the repayment in full of the First Priority Credit Obligations), or
 
156

III.         in connection with the taking of an enforcement action by the Applicable Authorized Representative in respect of the First Priority Credit Obligations in accordance with the Intercreditor Agreement,
 
(B)        that is owned or at any time acquired by a Guarantor that has been released from its Note Guarantee, concurrently with the release of such Note Guarantee,
 
(C)        that becomes Excluded Property, or
 
(D)       that is otherwise released in accordance with the applicable provisions of the Collateral Documents and the Intercreditor Agreement, but subject to any restrictions thereon set forth in this Indenture or the Intercreditor Agreement;
 
(b)           With respect to any release of Collateral, upon receipt of an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent under this Indenture and the Collateral Documents and the Intercreditor Agreement, as applicable, to such release have been met and that it is proper for the Trustee or 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 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 Agreement.  Neither the Trustee nor the Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate or Opinion of Counsel, and notwithstanding any term hereof or in any Collateral Document or in the Intercreditor Agreement to the contrary, the Trustee and the 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 and Opinion of Counsel.
 
(c)           At any time when an Event of Default has occurred and is continuing and the maturity of the Notes has been accelerated (whether by declaration or otherwise) and the Trustee has delivered notice of acceleration to the Collateral Agent, no release of Collateral pursuant to the provisions of this Indenture or the Collateral Documents shall be effective as against the Holders, except as otherwise provided in the Intercreditor Agreement.
 
157

(d)           Notwithstanding anything to the contrary contained herein or in any other Note Document (other than release of security at the direction of the Holders pursuant to Section 9.02(b)), the release of any perfected Lien (or Lien purported to be perfected) over assets subject to any Swedish Security Agreement will at all times be subject to the prior written consent of the Collateral Agent (in its sole discretion), unless the assets to be released are disposed of at Fair Market Value and the proceeds are paid directly to the Collateral Agent towards discharge of the First Priority Notes Obligations (or are paid by the recipient into a blocked account held with the Collateral Agent).  The Trustee and each of the Holders authorize the Collateral Agent to release such Swedish Transaction Security in accordance with this Section 12.03(d).
 
Section 12.04         Suits to Protect the Collateral.  Subject to the provisions of Article 7 hereof 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 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.
 
Subject to the provisions of the Collateral Documents and the Intercreditor Agreement, the Trustee and the Collateral Agent shall have 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 12.04 shall be considered to impose any such duty or obligation to act on the part of the Trustee or the Collateral Agent.
 
Section 12.05         Authorization of Receipt of Funds by the Trustee Under the Collateral Documents.  Subject to the provisions of the Intercreditor Agreement, the Trustee is authorized to receive any funds for the benefit of 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 12.06         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 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 12 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 12.07         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 12 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 Responsible Officer or Responsible Officers thereof required by the provisions of this Article 12; 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.
 
158

Section 12.08         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 and the other Notes 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 its Legal Defeasance option or its Covenant Defeasance option, in each case in compliance with the provisions of Article 8, and an Opinion of Counsel stating that all conditions precedent to the execution and delivery of such notice by the Trustee have been satisfied, the Trustee shall deliver to the Company and the Collateral Agent a notice, in form reasonably satisfactory to the 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 8), and any rights it has under the Collateral Documents, and upon receipt by the Collateral Agent of such notice, the 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 12.09         Collateral Agent.
 
(a)           The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture, the Collateral Documents and the Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Collateral Documents and the Intercreditor Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture, the Collateral Documents and the Intercreditor Agreement, and consents and agrees to the terms of the Intercreditor Agreement 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 Collateral Agent agrees to act as such on the express conditions contained in this Section 12.09.  The provisions of this Section 12.09 are solely for the benefit of the 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 12.04.  Each Holder agrees that any action taken by the Collateral Agent in accordance with the provision of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the 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 Agreement, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the 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 Agreement or otherwise exist against the Collateral Agent.  Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the 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.  The Collateral Agent shall not owe any fiduciary duties to any party to this agreement or any of their directors, employees, agents or affiliates.
 
159

(b)           The Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents or the Intercreditor Agreement 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 Collateral Agent shall not be responsible for the negligence or willful 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 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 Agreement 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 Authorized Officer or Related Person thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Indenture, the Collateral Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents or the Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents or the Intercreditor Agreement to perform its obligations hereunder or thereunder.  None of the 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 Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
 
160

(d)           The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, 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 Collateral Agent.  The 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, order, bond, debenture, or other paper or document.  The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents or the Intercreditor Agreement 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 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 Agreement 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.
 
(e)           The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Trust Officer of the 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 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 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 12.09).
 
(f)            The 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 Collateral Agent.  Additionally, the Company may remove the Collateral Agent if the Collateral Agent otherwise becomes incapable of acting, such removal to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent.  If the Collateral Agent resigns or is removed 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 or removal of the Collateral Agent (as stated in the notice of resignation or removal), the 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 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 or removed Collateral Agent, and the term “Collateral Agent” shall mean such successor collateral agent, and the retiring or removed Collateral Agent’s appointment, powers and duties as the Collateral Agent shall be terminated.  After the Collateral Agent’s resignation or removal hereunder, the provisions of this Section 12.09 (and Section 7.07) shall continue to inure to its benefit and the retiring or removed Collateral Agent shall not by reason of such resignation or removal be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Collateral Agent under this Indenture.
 
161

(g)           The Trustee shall initially act as Collateral Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion.  Except as otherwise explicitly provided herein or in the Collateral Documents or the Intercreditor Agreement, neither the 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 Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the 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 Collateral Agent is authorized and directed to: (i) enter into the Collateral Documents to which it is party, whether executed on or after the Issue Date; (ii) enter into the Intercreditor Agreement; (iii) make the representations of the Holders set forth in the Collateral Documents and Intercreditor Agreement; (iv) bind the Holders on the terms as set forth in the Collateral Documents and the Intercreditor Agreement; and (v) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreement.
 
(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 Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 6, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Collateral Documents and the Intercreditor Agreement.
 
162

(j)            The 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 Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
 
(k)           The 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 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 Collateral Agent pursuant to this Indenture, any Collateral Document or the Intercreditor Agreement 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, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
 
(l)            If the Company or any Guarantor (i) incurs any obligations in respect of First Priority Obligations at any time when no Intercreditor Agreement is in effect or at any time when Debt constituting First Priority Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Collateral Agent an Officer’s Certificate so stating and requesting the Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement) in favor of a designated agent or representative for the holders of the First Priority Obligations so incurred, the 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 reasonable and documented legal fees and expenses of the 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 incurs any obligations in respect of Junior Priority Debt and delivers to the Collateral Agent an Officer’s Certificate so stating and requesting the Collateral Agent to enter into an intercreditor agreement (on terms that are customary for such financings as determined by the Company in good faith reflecting the subordination of such Liens to the Liens secured by Notes and Note Guarantees) in favor of a designated agent or representative for the holders of the Junior Priority Debt so incurred, the 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 reasonable and documented legal fees and expenses of the Collateral Agent), bind the Holders on the terms set forth therein and perform and observe its obligations thereunder.
 
163

(n)           If the Company or any Guarantor incurs any obligations in respect Debt secured by Lien on Collateral ranking senior in priority to the Liens securing the Notes that is permitted under this Indenture and delivers to the Collateral Agent an Officer’s Certificate so stating and requesting the Collateral Agent to enter into an intercreditor agreement (on terms that are customary for such financings as determined by the Company in good faith reflecting the subordination of the Liens secured by Notes and Note Guarantees to such Liens) in favor of a designated agent or representative for the holders of such Debt so incurred, the 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 reasonable and documented legal fees and expenses of the Collateral Agent), bind the Holders on the terms set forth therein and perform and observe its obligations thereunder.
 
(o)           No provision of this Indenture, the Intercreditor Agreement or any Collateral Document shall require the 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 Collateral Agent) unless it shall have received indemnity satisfactory to the Collateral Agent against potential costs and liabilities incurred by the Collateral Agent relating thereto.  Notwithstanding anything to the contrary contained in this Indenture, the Intercreditor Agreement or the Collateral Documents, in the event the 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 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 Collateral Agent has determined that the 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 Collateral Agent has received security or indemnity from the Holders in an amount and in a form all satisfactory to the Collateral Agent in its sole discretion, protecting the Collateral Agent from all such liability.  The Collateral Agent shall at any time be entitled to cease taking any action described in this paragraph (n) if it no longer reasonably deems any indemnity, security or undertaking from the Company or the Holders to be sufficient.
 
(p)           The 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 Agreement and the Collateral Documents or any other instruments 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 Collateral Agent may agree in writing with the Company (and money held in trust or, for purposes of Swedish and Swiss law, as agent, by the 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 Collateral Agent shall not be construed to impose duties to act.
 
164

(q)           In no event shall the 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, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, it being understood that the Company may elect to replace the Collateral Agent under such circumstances pursuant to Section 12.09(f).
 
(r)            The 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 Agreement and the Collateral Documents.  The Collateral Agent shall not be responsible to the Holders or any other Person for any recitals, statements, information, representations or warranties contained in any Notes Documents or in any certificate, report, statement, or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Indenture, the Intercreditor Agreement or any Collateral Document; the execution, validity, genuineness, effectiveness or enforceability of the Intercreditor Agreement and any Collateral Documents of any other party thereto (other than the Collateral Agent); 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 Agreement and the Collateral Documents.  The 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 Agreement and the Collateral Documents, or the satisfaction of any conditions precedent contained in this Indenture, the Intercreditor Agreement and any Collateral Documents.  The Collateral Agent shall not be required to initiate or conduct any litigation or collection or other proceeding under this Indenture, the Intercreditor Agreement and the Collateral Documents unless expressly set forth hereunder or thereunder.  The Collateral Agent shall have the right at any time to seek instructions from the Holders with respect to the administration of the Notes Documents.
 
165

(s)           The parties hereto and the Holders hereby agree and acknowledge that the 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 Agreement, the Collateral Documents or any actions taken pursuant hereto or thereto, unless such 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 are the result of the Collateral Agent’s gross negligence or willful misconduct.  Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture, the Intercreditor Agreement and the Collateral Documents, the Collateral Agent may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Agent in the Collateral and that any such actions taken by the Collateral Agent shall not be construed as or otherwise constitute any participation in the management of such Collateral.
 
(t)            Upon the receipt by the Collateral Agent of a written request of the Company signed by one Authorized Officer of the Company (a “Collateral Document Order”), the 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 Collateral Agent pursuant to, and is a Collateral Document Order referred to in, this Section 12.09(t), and (ii) instruct the 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 Collateral Agent of an Officer’s Certificate and Opinion of Counsel 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 Collateral Agent to execute such Collateral Documents.
 
(u)           Subject to the provisions of the applicable Collateral Documents and the Intercreditor Agreement, each Holder, by acceptance of the Notes, agrees that the Collateral Agent shall execute and deliver the Intercreditor Agreement and the Collateral Documents to which it is a party and all agreements, documents and instruments incidental thereto, and act in accordance with the terms thereof.  For the avoidance of doubt, the Collateral Agent shall have no discretion under this Indenture, the Intercreditor Agreement 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.
 
166

(v)           After the occurrence of an Event of Default and for so long as it is continuing, the Trustee may direct the Collateral Agent in connection with any action required or permitted by this Indenture, the Collateral Documents or the Intercreditor Agreement.
 
(w)          The 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 Agreement and to the extent not prohibited under the Intercreditor Agreement, 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 6.13 hereof and the other provisions of this Indenture.
 
(x)            Subject to the terms of the Collateral Documents, in each case that the Collateral Agent may or is required hereunder or under any other Notes 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 Notes Document, the Collateral Agent may seek direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes.  The 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 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 Collateral Agent shall be entitled to refrain from such Action unless and until the Collateral Agent shall have received direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes, and the Collateral Agent shall not incur liability to any Person by reason of so refraining.
 
(y)           Notwithstanding anything to the contrary in this Indenture or any other Notes Document, in no event shall the 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 Notes Documents (including without limitation the filing or continuation of any UCC or PPSA financing or continuation statements or similar documents or instruments (or analogous procedures under the applicable laws in the relevant jurisdiction), nor shall the Collateral Agent or the Trustee be responsible for, and neither the 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.
 
(z)            Before the 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 13.04.  The 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.
 
167

(aa)         Notwithstanding anything to the contrary contained herein, the Collateral Agent shall act pursuant to the instructions of the Holders and the Trustee solely with respect to the Collateral Documents and the Collateral.
 
(bb)         The Company shall pay compensation to, reimburse expenses of and indemnify the Collateral Agent in accordance with Section 7.07.
 
(cc)         For the purposes of any hypothec granted under the laws of the Province of Quebec as security for the First Priority Notes Obligations, which may now or in the future be required to be provided by any Grantor, the Collateral Agent is hereby irrevocably authorized and appointed to act as the hypothecary representative (within the meaning of Article 2692 of the Civil Code of Québec) for all present and future First Priority Notes Secured Parties (in such capacity, the “Hypothecary Representative”) in order to hold any hypothec granted under the laws of the Province of Quebec and to exercise such rights, powers and duties as are conferred upon a hypothecary representative under the relevant deed of hypothec and applicable laws (with the power to delegate any such rights or duties).  The execution prior to the date hereof by the Collateral Agent in its capacity as Hypothecary Representative of any deed of hypothec or other security documents made pursuant to the laws of the Province of Quebec, is hereby ratified and confirmed.  Any Person who becomes a Holder, Trustee or successor Collateral Agent shall be deemed to have consented to and ratified the foregoing appointment of the Collateral Agent as Hypothecary Representative on behalf of all present and future First Priority Notes Secured Parties, including such Person and any Affiliate of such Person designated above as a First Priority Notes Secured Party.  For greater certainty, the Collateral Agent, acting as Hypothecary Representative, shall have the same rights, powers, immunities, indemnities and exclusions from liability as are prescribed in favor of the Collateral Agent in this Indenture, which shall apply mutatis mutandis.  In the event of the resignation of the Collateral Agent (which shall include its resignation as Hypothecary Representative) and appointment of a successor Collateral Agent, such successor Collateral Agent shall also act as successor Hypothecary Representative for the purposes of each deed of hypothec or the security document without any further act or formality being required to effect such replacement.
 
Section 12.10         Designations.  For purposes of the provisions hereof and the Intercreditor Agreement requiring the Company to designate Debt for the purposes of the term “First Priority Obligations,” “Future First Lien Debt,” “Junior Priority Debt” or any other such designations hereunder or under the Intercreditor Agreement, any such designation shall be sufficient if the relevant designation is set forth in writing, signed on behalf of the Company by an Authorized Officer and delivered to the Trustee, the Collateral Agent and the Senior Secured Credit Facilities Collateral Agent.
 
Section 12.11         No Impairment of the Security Interests.  Except as otherwise permitted under this Indenture, the Intercreditor Agreement and the other Notes 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 security interest with respect to the Collateral for the benefit of the Trustee, the Collateral Agent and the Holders of the Notes.
 
168

Section 12.12         Insurance.  The Company shall maintain insurance, and cause each of its Restricted Subsidiaries to maintain insurance, with financially sound and reputable insurers (naming the Collateral Agent as an additional insured or loss payee, as applicable), 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.
 
ARTICLE 13

MISCELLANEOUS
 
Section 13.01         Notices.
 
(a)           Any notice or communication to the Company, any Guarantor, the Trustee or the Collateral Agent is duly given if in writing and (1) delivered in person, (2) mailed by first-class mail (certified or registered, return receipt requested), postage prepaid, or overnight air courier guaranteeing next day delivery or (3) sent by facsimile or electronic transmission, to its address:
 
if to the Company or any Guarantor:
 
Concordia International Corp.
227 Lakeshore Road East, Suite 302
Oakville, Ontario L6J1H9
Canada
Telephone:
Facsimile:
Email:
Attention:
 
with a copy to:
 
Skadden, Arps, Slate, Meagher & Flom LP
4 Times Square
New York, New York 10036
United States
Telephone: 212-735-3000
Facsimile: 917-777-2918 and 917-777-2457
Email: [email protected] and [email protected]
Attention: Greg Fernicola and Michael Saliba

if to the Trustee or the Collateral Agent:
 
GLAS Trust Company LLC 
3 Second Street, Suite 206 
Jersey City, NJ 07311 
Telephone: 201-839-2181 
Facsimile: 212-202-6246 
Attention: Administrator for Concordia International Corp.

169

The Company, any Guarantor, the Trustee or the Collateral Agent, by like notice, may designate additional or different addresses for subsequent notices or communications.
 
(b)           All notices and communications (other than those sent to Holders) shall be deemed to have been duly given, whether personally delivered, sent by facsimile or electronic transmission (in PDF format), or mailed by first-class mail to the address above in Section 13.01(a), shall be deemed duly given, regardless of whether the addressee receives such notice or communication; provided that any notice or communication delivered to the Trustee or the Collateral Agent shall be deemed effective upon actual receipt thereof.
 
(c)           Any notice or communication to a Holder shall be mailed by first-class mail (certified or registered, return receipt requested) or by overnight air courier guaranteeing next day delivery to its address shown on the Note Register or by such other delivery system as the Trustee agrees to accept and shall be deemed to be sufficiently given if so sent within the time prescribed.  Failure to send a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
 
(d)           Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice.  Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
 
(e)           Where this Indenture provides for notice of any event (including any notice of redemption) 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 Applicable Procedures of such Depositary, if any, prescribed for the giving of such notice.
 
(f)            The Trustee agrees to accept and act upon notice, instructions or directions pursuant to this Indenture sent by unsecured facsimile or electronic transmission (in PDF format); provided, however, that (1) the party providing such written notice, instructions or directions, subsequent to such transmission of written instructions, shall provide the originally executed instructions or directions to the Trustee in a timely manner, and (2) such originally executed notice, instructions or directions shall be signed by an authorized representative of the party providing such notice, instructions or directions.  The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance in good faith upon and compliance with such notice, instructions or directions notwithstanding such notice, instructions or directions conflict or are inconsistent with a subsequent notice, instructions or directions.
 
170

(g)          If the Company sends a notice or communication to Holders, it shall send a copy to the Trustee and each Agent at the same time pursuant to Section 13.01(b).
 
Section 13.02         Communication by Holders with Other Holders.
 
Holders may communicate with other Holders with respect to their rights under this Indenture or the Notes.
 
Section 13.03         Certificate and Opinion as to Conditions Precedent.
 
Upon any request or application by the Company or any Guarantor to the Trustee and/or the Collateral Agent to take any action under this Indenture or the Collateral Documents, the Company or such Guarantor, as the case may be, shall furnish to the Trustee:
 
(1)          an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee and the Collateral Agent, as applicable (which shall include the statements set forth in Section 13.04) stating that, in the opinion of the signer(s), all conditions precedent and covenants, if any, provided for in this Indenture or the Collateral Documents relating to the proposed action have been complied with; and
 
(2)          an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee and the Collateral Agent, as applicable (which shall include the statements set forth in Section 13.04) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with.
 
Section 13.04         Statements Required in Certificate or Opinion.
 
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture or the Collateral Documents (other than a certificate provided pursuant to Section 4.04) shall include:
 
(1)          a statement that the Person making such certificate or opinion has read such covenant or condition;
 
(2)          a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
 
(3)          a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with (and, in the case of an Opinion of Counsel, may be limited to reliance on an Officer’s Certificate as to matters of fact); and
 
171

(4)          a statement as to whether or not, in the opinion of such Person, such covenant or condition has been complied with.
 
Section 13.05         Rules by Trustee and Agents.
 
The Trustee may make reasonable rules for action by or at a meeting of Holders.  The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
 
Section 13.06         No Personal Liability of Directors, Officers, Employees, Members, Partners and Shareholders.
 
No director, officer, employee, stockholder, general or limited partner or incorporator, past, present or future, of the Company or any of its Subsidiaries, as such or in such capacity, shall have any personal liability for any obligations of the Company under the Notes, any Note Guarantee, this Indenture, the Collateral Documents, the Intercreditor Agreement, the First Priority Credit Documents or any other documents governing First Priority Obligations, or pursuant to which liens have been granted to secure First Priority Obligations, or any other documents, instruments and agreements executed pursuant to any of the foregoing, by reason of his, her or its status as such director, officer, employee, stockholder, general or limited partner or incorporator.
 
Each Holder of Notes by accepting a Note waives and releases all such liability.  The waiver and release are part of the consideration for the issuance of the Notes.
 
Section 13.07         Governing Law.
 
THIS INDENTURE, THE NOTES AND ANY NOTE GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
 
Section 13.08         Waiver of Jury Trial.
 
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 INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
 
Section 13.09         No Adverse Interpretation of Other Agreements.
 
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Restricted Subsidiaries or of any other Person.  Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
 
Section 13.10         Successors.
 
172

All agreements of the Company in this Indenture and the Notes shall bind its successors.  All agreements of the Trustee and the Collateral Agent in this Indenture shall bind its successors and assigns.  All agreements of each Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section 10.07.
 
Section 13.11         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 13.12         Counterpart 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 or .pdf 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 or .pdf shall be deemed to be their original signatures for all purposes.
 
Section 13.13         Table of Contents, Headings, Etc.
 
The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
 
Section 13.14         U.S.A. PATRIOT Act.
 
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A.  PATRIOT Act, the Trustee and the Collateral Agent are required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee or Collateral Agent.  The parties to this Indenture agree that they shall provide the Trustee and the Collateral Agent with such information as each may request in order for the Trustee and the Collateral Agent to satisfy the requirements of the U.S.A.  PATRIOT Act.
 
Section 13.15         Payments Due on Non-Business Days.
 
In any case where any Interest Payment Date, redemption date or repurchase date or the Stated Maturity of the Notes shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Notes) payment of principal, premium, if any, or interest, if any, on the Notes need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date, redemption date or repurchase date, or at the Stated Maturity of the Notes; provided that no interest will accrue for the period from and after such Interest Payment Date, redemption date, repurchase date or Stated Maturity, as the case may be.
 
173

Section 13.16         Submission to Jurisdiction.
 
The Company and each Guarantor not organized in the United States shall appoint CT Corporation System, 111 Eighth Avenue, New York, N.Y.  10011 (or a permitted alternative) as its agent for service of process in any suit, action or proceeding with respect to this Indenture, the Notes and the Note Guarantees and for actions brought under the U.S. federal or state securities laws brought in any U.S. federal or state court located in the Borough of Manhattan in the County and City of New York.  The Company and each Guarantor irrevocably and unconditionally submit to the non-exclusive jurisdiction of the state and federal courts sitting in the Borough of Manhattan in the County and City of New York over any suit, action or proceeding arising out of or relating to this Indenture, the Notes or the Note Guarantees and for actions brought under the U.S. federal or state securities laws.  Service of any process, summons, notice or document by registered mail addressed to the Company or any Guarantor at the address above in Section 13.01 shall be effective service of process against the Company or any Guarantor for any suit, action or proceeding brought in any such court.  The Company and each Guarantor irrevocably and unconditionally waives any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding has been brought in an inconvenient forum.  A final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon the Company and each Guarantor and may be enforced in any other courts to whose jurisdiction the Company is or may be subject, by suit upon judgment.  The Company and each Guarantor further agrees that nothing herein shall affect any Holder’s right to effect service of process in any other manner permitted by law or bring a suit action or proceeding (including a proceeding for enforcement of a judgment) in any other court or jurisdiction in accordance with applicable law.
 
Section 13.17         Waiver of Immunity.
 
To the extent that each of the Company and the Guarantors, or any of their respective properties, assets or revenues may have or may hereafter become entitled to, or have attributed to each of the Company and the Guarantors, any right of immunity, on the grounds of sovereignty or otherwise, from any legal action, suit or proceeding, from the giving of any relief in any such legal action, suit or proceeding, from setoff or counterclaim, from the jurisdiction of any Canadian, New York state or U.S. federal court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution of judgment, or from execution of judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any such court in which proceedings may at any time be commenced, with respect to the obligations and liabilities of each of the Company and the Guarantors or any other matter under or arising out of or in connection with this Indenture, each of the Company and the Guarantors hereby irrevocably and unconditionally waives or will waive such right to the extent permitted by applicable law, and agree not to plead or claim, any such immunity and consent to such relief and enforcement.
 
174

Section 13.18         Conversion of Currency.
 
If for the purposes of obtaining judgment in any court it is necessary to convert a sum due under this Indenture to the Holder from U.S. dollars to another currency, the Company and each Guarantor has agreed, and each Holder by holding such Note will be deemed to have agreed, to the fullest extent that the Company, each Guarantor and they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures such Holder could purchase U.S. dollars with such other currency in New York City, New York on the Business Day preceding the day on which final judgment is given.
 
The Company’s and Guarantors’ obligations to any Holder will, notwithstanding any judgment in a currency (the “Judgment Currency”) other than U.S. dollars, be discharged only to the extent that on the Business Day following receipt by such Holder or the Trustee, as the case may be, of any amount in such Judgment Currency, such Holder may in accordance with normal banking procedures purchase U.S. dollars with the Judgment Currency.  If the amount of the U.S. dollars so purchased is less than the amount originally to be paid to such Holder or the Trustee in the Judgment Currency (as determined in the manner set forth in the preceding paragraph), as the case may be, each of the Company and the Guarantors, jointly and severally, agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Holder and the Trustee, as the case may be, against any such loss.  If the amount of the U.S. dollars so purchased is more than the amount originally to be paid to such Holder or the Trustee, as the case may be, such Holder or the Trustee, as the case may be, will pay the Company and the Guarantors, such excess; provided that such Holder or the Trustee, as the case may be, shall not have any obligation to pay any such excess if the Company or the Guarantors shall have failed to pay any Holder or the Trustee any amounts then due and payable under such Note or this Indenture, in which case such excess shall be applied by such Holder or the Trustee to satisfy (to the extent thereof) such Obligations.
 
Section 13.19         Accounting Provisions.
 
Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with IFRS, as in effect from time to time; provided that, in the event that any Accounting Change occurs and such change results in a change in the method of calculation of financial covenants, standards or terms, as determined in good faith by the Company, then, upon the written notice of the Company to the Trustee, such financial covenants, standards or terms shall be calculated on the same basis as calculated prior to giving effect to such Accounting Change and as if such Accounting Change had not occurred.  Any such election with respect to such Accounting Change may not thereafter be changed.
 
Notwithstanding anything to the contrary above or in the definition of Capital Lease Obligations, in the event of a change under IFRS (or the application thereof) requiring all leases to be capitalized, only those leases that would result or would have resulted in Capital Lease Obligations on the Issue Date (assuming for purposes hereof that they were in existence on the Issue Date) shall be considered Capital Lease Obligations and all calculations and deliverables under the Indenture shall be made in accordance therewith.
 
175

Section 13.20         Criminal Rate
 
Notwithstanding any other provision herein to the contrary, if any provision of this Indenture or of any of the other Notes Documents would obligate any Canadian Grantor to make any payment of interest or other amount payable to any First Priority Notes Secured Party in an amount which would be prohibited by applicable law or calculated at a rate that would exceed or result in a receipt by such First Priority Notes Secured Party of interest at a criminal rate (as such terms are construed under the Criminal Code (Canada)) then, notwithstanding such provisions, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by applicable law or so result in a receipt by such First Priority Notes Secured Party of interest at a rate which constitutes a criminal rate, such adjustment to be effected, to the extent necessary, as follows: (1) firstly, by reducing the amount or rate of interest required to be paid to such First Priority Notes Secured Party, and (2) thereafter, by reducing any fees, commissions, premiums and other amounts required to be paid to such First Priority Notes Secured Party which would constitute “interest” for purposes of Section 347 of the Criminal Code (Canada).  Notwithstanding the foregoing, and after giving effect to all adjustments contemplated thereby, if a First Priority Notes Secured Party shall have received an amount in excess of the maximum permitted by that section of the Criminal Code (Canada) from a Canadian Grantor, such Canadian Grantor shall be entitled, by notice in writing to such First Priority Notes Secured Party, to obtain reimbursement from such First Priority Notes Secured Party in an amount equal to such excess and, pending such reimbursement, such amount shall be deemed to be an amount payable by such First Priority Notes Secured Party to such Canadian Grantor. Any amount or rate of interest referred to in this Section 13.20 shall be determined in accordance with IFRS as an effective annual rate of interest over the term that the applicable First Priority Notes Obligation remains outstanding on the assumption that any charges, fees or expenses that fall within the meaning of “interest” (as defined in the Criminal Code (Canada)) shall, if they relate to a specific period of time, be pro-rated over that period of time and otherwise be pro-rated over the period from the Issue Date to the maturity thereof, whether at Stated Maturity, by acceleration or otherwise, and, in the event of a dispute, a certificate of a Fellow of the Canadian Institute of Actuaries appointed by the Trustee shall be conclusive for the purposes of such determination.
 
Section 13.21         Limitations Act, 2002 (Ontario)
 
Each of the parties hereto agree that any and all limitation periods provided for in the Limitations Act, 2002 (Ontario), as amended from time to time, or any other applicable law limiting the time for which an action may be commenced shall be excluded from application to the First Priority Notes Obligations and any undertaking, covenant, indemnity or other agreement of each Grantor hereunder, in each case to fullest extent permitted by such Act or applicable law.
 
176

Section 13.22         Intercreditor Agreement.
 
Reference is made to the Intercreditor Agreement.  Each Holder, by its acceptance of a Note, (a) consents to the priority of Liens and payments provided for in the Intercreditor Agreement, (b) agrees that it will be bound by and will take no actions contrary to the provisions of the Intercreditor Agreement and (c) authorizes and instructs the Collateral Agent to enter into the Intercreditor Agreement as the Collateral Agent 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 Intercreditor Agreement and covering any other matters incidental thereto.  The foregoing provisions are intended as an inducement to the lenders under the Credit Agreement to extend credit and such lenders are intended third party beneficiaries of such provisions and the provisions of the Intercreditor Agreement.

[Signatures on following page]
 
177

 
CONCORDIA INTERNATIONAL CORP.,
as the Company,
 
 
 
 
By:
 
 
 
Name:
 
 
Title:
 
 
AMDIPHARM B.V., as a Guarantor
 
 
 
 
By:
 
 
 
Name:
 
 
Title:
 
 
CONCORDIA LABORATORIES INC., a  société à responsabilité limitée incorporated  in Luxembourg, having its registered office  at 8-10, avenue de la Gare, L-1610  Luxembourg, and registered with the  Registre de Commerce et des SociétésLuxembourg under number B200376, as a  Guarantor
 
 
 
 
By:
 
 
 
Name:
 
 
Title:
 
 
CONCORDIA PHARMACEUTICALS  INC., a société à responsabilité limitée  incorporated in Luxembourg, having its registered office at 8-10, avenue de la Gare,  L-1610 Luxembourg, and registered with the  Registre de Commerce et des SociétésLuxembourg under number B200344, as a  Guarantor,
 
 
 
 
By:
 
 
 
Name:
 
 
Title:
 
[Concordia  – Signature Page to the Indenture]
 

 
AMDIPHARM HOLDINGS, a société à  responsabilité limitée incorporated in  Luxembourg, having its registered office at  46A, avenue J.F. Kennedy, L-1855  Luxembourg, and registered with the  Registre de Commerce et des SociétésLuxembourg under number B105086, as a Guarantor
 
 
 
AMDIPHARM MERCURY
INTERNATIONAL LIMITED, as a
Guarantor
     
 
By:
 
 
 
Name:
 
 
Title:
 
 
CONCORDIA FINANCING (JERSEY)
LIMITED, as a Guarantor,
 
 
 
 
By:
 
 
 
Name:
 
 
Title:
 
 
CONCORDIA INVESTMENTS (JERSEY)
LIMITED, as a Guarantor,
 
 
 
 
By:
 
 
 
Name:
 
 
Title:
 
 
CONCORDIA HOLDINGS (JERSEY)
LIMITED, as a Guarantor,
 
 
 
 
By:
 
 
 
Name:
 
 
Title:
 
[Concordia  – Signature Page to the Indenture]
 

 
CONCORDIA INVESTMENT HOLDINGS
(UK) LIMITED, as a Guarantor
 
 
 
 
By:
 
 
 
Name:
 
 
Title:

 
AMDIPHARM MERCURY HOLDCO UK
LIMITED, as a Guarantor
 
 
 
 
By:
 
 
 
Name:
 
 
Title:
 
 
AMDIPHARM MERCURY UK LTD., as a
Guarantor
 
 
 
 
By:
 
 
 
Name:
 
 
Title:
 
 
CONCORDIA INTERNATIONAL RX
(UK) LIMITED, as a Guarantor
 
 
 
 
By:
 
 
 
Name:
 
 
Title:

 
FOCUS PHARMA HOLDINGS LIMITED,
as a Guarantor
 
 
 
 
By:
 
 
 
Name:
 
 
Title:
 
[Concordia  – Signature Page to the Indenture]
 

 
MERCURY PHARMA GROUP LIMITED,
as a Guarantor
 
 
 
 
By:
 
 
 
Name:
 
 
Title:
 
 
MERCURY PHARMA (GENERICS) LTD.,
as a Guarantor
 
 
 
 
By:
 
 
 
Name:
 
 
Title:
 
 
MERCURY PHARMACEUTICALS
LIMITED, as a Guarantor
 
 
 
 
By:
 
 
 
Name:
 
 
Title:
 
 
FOCUS PHARMACEUTICALS LIMITED,
as a Guarantor
 
 
 
 
By:
 
 
 
Name:
 
 
Title:

 
ABCUR AB, as a Guarantor
 
 
 
 
By:
 
 
 
Name:
 
 
Title:
 
[Concordia  – Signature Page to the Indenture]
 

 
AMDIPHARM AG, as a Guarantor
 
 
 
 
By:
 
 
 
Name:
 
 
Title:

 
GIVEN under the common seal of 
   
 
AMDIPHARM LIMITED, as a Guarantor
 
 
 
 
 
 
 
Director
     
     
    Director / Secretary 
 
 
GIVEN under the common seal of
   
 
MERCURY PHARMA INTERNATIONAL
LIMITED, as a Guarantor
 
 
 
 
 
 
 
Director
     
     
 
 
Director / Secretary

 
GIVEN under the common seal of 
   
 
MERCURY PHARMACEUTICALS
(IRELAND) LIMITED, as a Guarantor
 
 
 
 
 
 
 
Director
 
 
     
    Director / Secretary 
 
 
PRIMEGEN LIMITED, as a Guarantor,
 
 
 
 
By:
 
 
 
Name:
 
 
Title:
 
[Concordia  – Signature Page to the Indenture]
 

 
GLAS TRUST COMPANY LLC, as Trustee
and Collateral Agent
 
 
 
 
By:
 
 
 
Name:
 
 
Title:
 
[Concordia  – Signature Page to the Indenture]
 
 


Exhibit T3D
 
Court File No. CV-17-584836-00CL

 
ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
 
 
THE HONOURABLE REGIONAL
)
TUESDAY, THE 26th
 
)
 
SENIOR JUSTICE MORAWETZ
)
DAY OF JUNE, 2018
 
IN THE MATTER OF AN APPLICATION UNDER SECTION 192 OF THE CANADA BUSINESS CORPORATIONS ACT, R.S.C. 1985, C. C-44, AS AMENDED, AND RULES 14.05(2) AND 14.05(3) OF THE RULES OF CIVIL PROCEDURE
 
AND IN THE MATTER OF A PROPOSED ARRANGEMENT OF CONCORDIA INTERNATIONAL CORP. AND CONCORDIA HEALTHCARE (CANADA) LIMITED AND INVOLVING CONCORDIA LABORATORIES INC., S.A.R.L., CONCORDIA PHARMACEUTICALS INC., S.A.R.L., CONCORDIA INVESTMENTS (JERSEY) LIMITED, CONCORDIA FINANCING (JERSEY) LIMITED, AMDIPHARM HOLDINGS S.A.R.L., AMDIPHARM AG, AMDIPHARM B.V., AMDIPHARM LIMITED, AMDIPHARM MERCURY HOLDCO UK LIMITED, AMDIPHARM MERCURY UK LTD., CONCORDIA HOLDINGS (JERSEY) LIMITED, AMDIPHARM MERCURY INTERNATIONAL LIMITED, CONCORDIA INVESTMENT HOLDINGS (UK) LIMITED, MERCURY PHARMA GROUP LIMITED, CONCORDIA INTERNATIONAL RX (UK) LIMITED, ABCUR AB, MERCURY PHARMACEUTICALS LIMITED, FOCUS PHARMA HOLDINGS LIMITED, FOCUS PHARMACEUTICALS LIMITED, MERCURY PHARMA (GENERICS) LIMITED, MERCURY PHARMACEUTICALS (IRELAND) LIMITED, AND MERCURY PHARMA INTERNATIONAL LIMITED
 
FINAL ORDER
 
THIS APPLICATION by Concordia International Corp. (“Concordia”) and Concordia Healthcare (Canada) Limited (“CHCL”, and together with Concordia, the “Applicants”) pursuant to section 192 of the Canada Business Corporations Act, R.S.C. 1985, c. C-44, as amended (the “CBCA”), was heard this day at 330 University Avenue, Toronto, Ontario.
 

ON READING the Notice of Application issued on October 20, 2017, the affidavit of David Price sworn October 19, 2017 and the exhibits thereto, the affidavit of David Price sworn May 2, 2018 and the exhibits thereto, the affidavit of David Price sworn June 19, 2018 and the exhibits thereto, and the affidavit of Loren Cohen sworn June 25, 2018, and
 
ON READING the Preliminary Interim Order of this Court dated October 20, 2017, and the Interim Order of this Court dated May 2, 2018 (as amended, the “Interim Order”), and
 
ON HEARING the submissions of counsel for the Applicants, the Initial Consenting Secured Debtholders, the Initial Consenting Unsecured Debtholders, the Secured Term Loan Agent, the Trustees, the Secured Swap Lender and those other parties present, and on being advised by counsel to the Applicants that (i) the Director appointed under the CBCA (the “Director”) does not consider it necessary to appear on this application; (ii) the Secured Debtholders’ Meeting, the Unsecured Debtholders’ Meeting and the Shareholders’ Meeting were called, held and conducted in accordance with the Interim Order; (iii) the requisite approvals were obtained in each such meeting in accordance with the terms of the Interim Order; (iv) CHCL is not insolvent; and (v) this Order and the declaration of fairness included herein will be relied upon by the Applicants as the basis for a claim to an exemption pursuant to Section 3(a)(10) of the United States Securities Act of 1933 from the registration requirements otherwise imposed by that Act, regarding the distribution of the Unsecured Debt Exchange Shares, Reallocated Unsecured Shares, Unsecured Debtholder Early Consent Shares and New Senior Secured Notes pursuant to the Plan of Arrangement attached as Schedule “A” to this Order (the “Plan of Arrangement”),
 
2

Definitions
 
1.             THIS COURT ORDERS that all capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Plan of Arrangement and, if not defined in the Plan of Arrangement, in the Interim Order.
 
Service and Compliance
 
2.             THIS COURT ORDERS that there has been good and sufficient service, delivery and notice of this Application, the Interim Order, the Meetings, the Debtholder Meetings Packages and the Shareholder Meeting Packages and the Plan of Arrangement to all Persons upon which service, delivery and notice were required by the terms of the Interim Order, all of the requirements contained in sections 47, 48 and 49 of the Interim Order have been satisfied and the Meetings were duly called and conducted in conformity with the Interim Order and the CBCA or OBCA, as applicable.
 
3.             THIS COURT ORDERS that service of this Order shall be made on all persons who appeared on this application, either by counsel or in person, and upon the Director, but is otherwise dispensed with.
 
Approval of Arrangement
 
4.             THIS COURT ORDERS that:
 
 
(a)
the Arrangement, as described in the Plan of Arrangement, is an arrangement within the meaning of section 192 of the CBCA;
 
3

 
(b)
the Court is satisfied that the Applicants have acted, and are acting, in good faith and with due diligence, and have complied with the provisions of the CBCA and the Interim Order in all respects; and
 
(c)
the Arrangement, as described in the Plan of Arrangement, and including the distribution of the Unsecured Debt Exchange Shares, Reallocated Unsecured Shares, Unsecured Debtholder Early Consent Shares and New Senior Secured Notes contemplated thereby, is fair and reasonable.
 
5.             THIS COURT ORDERS that the Arrangement, as described in the Plan of Arrangement, shall be and is hereby approved pursuant to Section 192 of the CBCA.
 
6.             THIS COURT ORDERS that each of the Concordia Entities, the Agents, the Trustees, the Proxy and Information Agent, the Transfer Agent, CDS Clearing and Depository Services Inc., DTC and GLAS Trust Company LLC (and/or its applicable affiliate(s)), in its capacity as the trustee, agent and collateral agent in respect of the New Senior Secured Debt (the “Exchange Debt Agent”) are authorized and directed to take all steps and actions necessary or appropriate to implement the Plan of Arrangement and the Arrangement and the other transactions contemplated thereby in accordance with and subject to the terms of the Plan of Arrangement, including (a) to enter into any agreements or other documents which are to come into effect in connection with the Arrangement, and (b) in the Agents’ and Trustees’ respective capacities as agents, trustees and/or collateral agents, to execute and deliver (or direct to be executed and delivered) such releases, terminations and discharges of security, liens and guarantees as are required to give effect to the Plan of Arrangement and the Arrangement.
 
4

7.             THIS COURT ORDERS that as of the Effective Date, and as at the times and sequences set forth in the Plan of Arrangement, the Plan of Arrangement and all associated steps and transactions shall be binding and effective as set out in the Plan of Arrangement, and on the terms and conditions set forth in this Order, upon the Concordia Entities, the Secured Debtholders, the Unsecured Debtholders, the Agents, the Trustees, the Exchange Debt Agent, the Affected Equity Holders, all holders of Affected Equity Claims, all holders of Existing Equity Class Action Claims, all holders of Released Claims, the Released Parties, the Additional Released Parties and all other Persons affected by the Plan of Arrangement.
 
8.             THIS COURT ORDERS that from and after the Effective Date, any Person having an Existing Equity Class Action Claim against Concordia or any of its current or former officers and/or directors shall only be permitted to continue its Existing Equity Class Action Claim to the point of determination of liability, if any, and seeking the enforcement of any judgement solely as against the Insurance Policies, to the extent available in respect of any such Existing Equity Class Action Claim. Any such Person shall be irrevocably and forever limited solely to recovery from the proceeds of the Insurance Policies payable on behalf of Concordia or its directors and officers in respect of any such Existing Equity Class Action Claim, and such Person shall have no right to, and shall not, directly or indirectly, make any claim or seek any recoveries from any of the Concordia Entities or any of their respective current or former officers and directors in respect of an Existing Equity Class Action Claim, other than enforcing such Person’s rights to be paid by the applicable insurer(s) from the proceeds of the applicable Insurance Policies. Nothing in this paragraph prejudices, compromises, releases or otherwise affects (i) any right or defence of any insurer in respect of an Insurance Policy or (ii) any Person having an Existing Equity Class Action Claim from recovering against Concordia’s current and former directors and officers for any liabilities or claims attributable to any such director or officer’s fraud, wilful misconduct, or criminal act or criminal omission as determined by the final, non-appealable judgment of a court of competent jurisdiction, provided that all defence costs of any action referred to in this subsection (ii) shall not be paid by any of the Concordia Entities.
 
5

9.             THIS COURT ORDERS that the transactions contemplated by and to be implemented pursuant to the Plan of Arrangement shall not be void or voidable under federal or provincial law and shall not constitute and shall not be deemed to be preferences, assignments, fraudulent conveyances, transfers at undervalue, or other reviewable transactions under any applicable federal or provincial legislation relating to preferences, assignments, fraudulent conveyances or transfers at undervalue.

10.           THIS COURT ORDERS that from and after the Effective Date any conflict between (i) the Plan of Arrangement, and (ii) the covenants, warranties, representations, terms, conditions, provisions or obligations, expressed or implied, of any contract, mortgage, security agreement, indenture, trust indenture, note, loan agreement, commitment letter, agreement for sale, lease or other agreement, written or oral and any and all amendments or supplements thereto existing between any Person and any of the Concordia Entities as at the Effective Date, will be deemed to be governed by the terms, conditions and provisions of the Plan of Arrangement and this Order, which shall take precedence and priority.
 
6

No Default
 
11.          THIS COURT ORDERS that from and after the Effective Date, all Persons shall be deemed to have waived any and all defaults or events of defaults, third party change of control rights or any non-compliance with any covenant, warranty, representation, term, provision, condition or obligation, expressed or implied, in any contract, instrument, credit document, lease, licence, guarantee, agreement for sale or other agreement, written or oral, in each case relating to, arising out of, or in connection with, the Debt or the Debt Documents, the Affected Equity, the Support Agreement, the Subscription Agreement, the Arrangement, the Arrangement Agreement, the Plan of Arrangement, the transactions contemplated under the Plan of Arrangement and any and all proceedings commenced with respect to or in connection with the Plan of Arrangement and any and all amendments or supplements thereto, provided however that notwithstanding any provision of this Order or the Plan of Arrangement, nothing herein or therein shall affect the obligations of any of the Concordia Entities to any employee thereof in their capacity as such (other than with respect to the Affected Equity and the Affected Equity Claims), including any contract of employment between any Person and any of the Concordia Entities. Any and all notices of default and demands for payment or any step or proceeding taken or commenced in connection with any of the foregoing shall be deemed to have been rescinded and of no further force or effect, provided that nothing shall be deemed to excuse the Concordia Entities and their respective successors from performing their obligations under the Plan of Arrangement.
 
Releases and Injunctions
 
12.          THIS COURT ORDERS that, from and after the Effective Date, at the time and in the sequence, as applicable, set forth in the Plan of Arrangement, the releases and injunctions set forth in Article 7 of the Plan of Arrangement shall be binding and effective as set out in the Plan of Arrangement.
 
7

Aid and Recognition
 
13.           THIS COURT ORDERS that this Order shall have full force and effect in all other provinces and territories of Canada and shall be enforced in the courts of each of the provinces and territories of Canada in the same manner in all respects as if this Order had been made by the Court enforcing it.
 
14.           THIS COURT REQUESTS the aid and recognition of any court or judicial, regulatory or administrative body having jurisdiction in Canada, the United States or elsewhere to give effect to this Order and to assist the Applicants (and any of the other Concordia Entities) and their respective agents in carrying out the terms of this Order. All courts and all judicial, regulatory and administrative bodies are hereby respectfully requested to make such orders and to provide such assistance to the Applicants (and any of the other Concordia Entities) as may be necessary or desirable to give effect to this Order or to assist the Applicants (and any of the other Concordia Entities) and their respective agents in carrying out the terms of this Order.
 
15.           THIS COURT ORDERS that each of the Applicants be at liberty and is hereby authorized and empowered, including as foreign representatives as appointed pursuant to paragraphs 61 and 62 of the Interim Order, to apply to any court, tribunal, or regulatory or administrative body, wherever located, for the recognition of this Order and for assistance in carrying out the terms of this Order.

 
   
 
ENTERED AT / INSCRIT À TORONTO
  ON / BOOK NO:
 
LE/DANS LE REGISTRE NO:
   
 
JUNE 26 2018
   
 
PER/PAR:
 
8

Schedule “A”
 
Plan of Arrangement
 
(see attached)
 
9

Court File No. CV-17-584836-00CL

ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
 
IN THE MATTER OF AN APPLICATION UNDER SECTION 192 OF THE CANADA BUSINESS CORPORATIONS ACT, R.S.C. 1985, c. C-44, AS AMENDED, AND RULES 14.05(2) AND 14.05(3) OF THE RULES OF CIVIL PROCEDURE
 
AND IN THE MATTER OF A PROPOSED ARRANGEMENT OF CONCORDIA INTERNATIONAL CORP. AND CONCORDIA HEALTHCARE (CANADA) LIMITED AND INVOLVING CONCORDIA LABORATORIES INC., S.A.R.L., CONCORDIA PHARMACEUTICALS INC., S.A.R.L., CONCORDIA INVESTMENTS (JERSEY) LIMITED, CONCORDIA FINANCING (JERSEY) LIMITED, AMDIPHARM HOLDINGS S.A.R.L., AMDIPHARM AG, AMDIPHARM B.V., AMDIPHARM LIMITED, AMDIPHARM MERCURY HOLDCO UK LIMITED, AMDIPHARM MERCURY UK LTD., CONCORDIA HOLDINGS (JERSEY) LIMITED, AMDIPHARM MERCURY INTERNATIONAL LIMITED, CONCORDIA INVESTMENT HOLDINGS (UK) LIMITED, MERCURY PHARMA GROUP LIMITED, CONCORDIA INTERNATIONAL RX (UK) LIMITED, ABCUR AB, MERCURY PHARMACEUTICALS LIMITED, FOCUS PHARMA HOLDINGS LIMITED, FOCUS PHARMACEUTICALS LIMITED, MERCURY PHARMA (GENERICS) LIMITED, MERCURY PHARMACEUTICALS (IRELAND) LIMITED, AND MERCURY PHARMA INTERNATIONAL LIMITED
 
CONCORDIA INTERNATIONAL CORP. AND CONCORDIA
HEALTHCARE (CANADA) LIMITED
 
PLAN OF ARRANGEMENT
 
JUNE 26, 2018
 

TABLE OF CONTENTS
 
     
Page
       
ARTICLE 1 INTERPRETATION
1
 
1.1
Definitions
1
 
1.2
Certain Rules of Interpretation
21
 
1.3
Governing Law
22
 
1.4
Currency
22
 
1.5
Date for Any Action
22
 
1.6
Time
22
   
ARTICLE 2 PRIVATE PLACEMENT
23
 
2.1
Issuance of Private Placement Shares
23
   
ARTICLE 3 TREATMENT OF AFFECTED PARTIES
23
 
3.1
Treatment of Secured Debtholders
23
 
3.2
Treatment of Unsecured Debtholders
27
 
3.3
Treatment of Existing Equity Holders
28
   
ARTICLE 4 ISSUANCES, DISTRIBUTIONS AND PAYMENTS
29
 
4.1
Delivery of New Senior Secured Debt
29
 
4.2
Delivery of New Limited Voting Shares, Class A Special Shares and Class B Special Shares
30
 
4.3
Delivery of Payments to Secured Debtholders
31
 
4.4
Delivery of Private Placement Commitment Consideration
32
 
4.5
No Liability in respect of Deliveries
32
 
4.6
Surrender and Cancellation of Notes
33
 
4.7
Application of Plan Distributions
33
 
4.8
Withholding Rights
33
   
ARTICLE 5 IMPLEMENTATION
34
 
5.1
Corporate Authorizations
34
 
5.2
Fractional Interests
34
 
5.3
Effective Date Transactions
34
   
ARTICLE 6 RELEASE OF FUNDS FROM ESCROW
40
 
6.1
Release of Funds from Escrow
40
   
ARTICLE 7 RELEASES
40
 
7.1
Release of Released Parties
40
 
7.2
Additional Released Parties
41
 
7.3
Injunctions
41
 
7.4
Existing Equity Class Action Claims
41
   
ARTICLE 8 CONDITIONS PRECEDENT AND IMPLEMENTATION
42
 
8.1
Conditions to Plan Implementation
42
 
8.2
Waiver of Conditions
42
 
8.3
Effectiveness
42
 
(i)

ARTICLE 9 GENERAL
43
 
9.1
Deemed Consents, Waivers and Agreements
43
 
9.2
Waiver of Defaults
43
 
9.3
Compliance with Deadlines and Elections
44
 
9.4
Paramountcy
44
 
9.5
Deeming Provisions
44
 
9.6
Modification of Plan
44
 
9.7
Notices
45
 
9.8
Different Capacities
47
 
9.9
Consent of Majority Initial Consenting Debtholders and Majority Private Placement Parties
48
 
9.10
Further Assurances
48
 
(ii)

PLAN OF ARRANGEMENT
 
ARTICLE 1
INTERPRETATION
 
1.1
Definitions
 
In this Plan, unless otherwise stated:
 
“7.00% Unsecured Notes” means the 7.00% Senior Unsecured Notes due 2023 issued under the 7.00% Unsecured Notes Indenture;
 
“7.00% Unsecured Notes Indenture” means the Indenture for 7.00% Senior Unsecured Notes dated April 21, 2015 by and among Concordia, the guarantors party thereto, and the 7.00% Unsecured Notes Trustee, as amended, modified and/or supplemented from time to time as of the date hereof;
 
“7.00% Unsecured Notes Trustee” means U.S. Bank National Association, in its capacity as indenture trustee under the 7.00% Unsecured Notes Indenture, and any successor thereof;
 
“9.50% Unsecured Notes” means the 9.50% Senior Unsecured Notes due 2022 issued under the 9.50% Unsecured Notes Indenture;
 
“9.50% Unsecured Notes Indenture” means the Indenture for 9.50% Unsecured Notes dated October 21, 2015 by and among Concordia, the guarantors party thereto, and the 9.50% Unsecured Notes Trustee, as amended, modified and/or supplemented from time to time as of the date hereof;
 
“9.50% Unsecured Notes Trustee” means U.S. Bank National Association, in its capacity as indenture trustee under the 9.50% Unsecured Notes Indenture, and any successor thereof;
 
“Additional Cash Amount” means, in the event that the aggregate amount of the Secured Debtholder Early Consent Cash Consideration is less than $100,000,000, an amount equal to $100,000,000 less the aggregate amount of the Secured Debtholder Early Consent Cash Consideration;
 
“Additional Released Parties” means those Persons listed on Schedule “A” to the Plan in accordance with Section 7.2;
 
“Advisors” means, collectively, (i) the Initial Consenting Secured Debtholders Advisors, and (ii) the Initial Consenting Unsecured Debtholders Advisors;
 
“Affected Equity” means all Existing Equity other than the Existing Shares;
 

“Affected Equity Claim” means an equity claim (as defined in section 2(1) of the Companies Creditors Arrangement Act) in respect of Concordia, other than an Existing Equity Class Action Claim;
 
“Affected Equity Holder” means a holder of Affected Equity;
 
“Agents” means, collectively, the Secured Term Loan Agent and the Unsecured Equity Bridge Loan Agent;
 
“Aggregate Number of New Limited Voting Shares” has the meaning given to it in Section 4.2(e);
 
“Applicants” means, collectively, Concordia and CHCL;
 
“Arrangement” means an arrangement under section 192 of the CBCA on the terms and subject to the conditions set out in this Plan, subject to any amendments or variations thereto made in accordance with the Support Agreement, the Arrangement Agreement and Section 9.6 of this Plan or made at the direction of the Court in the Interim Order or the Final Order or otherwise, in any case, with the consent of the Applicants and the Majority Initial Consenting Debtholders, each acting reasonably;
 
“Arrangement Agreement” means the arrangement agreement dated May 1, 2018, among the Applicants, as it may be amended, modified and/or supplemented from time to time;
 
“Articles Amendments” means amendments to the articles of Concordia in connection with the Arrangement, substantially as set out in Schedule “B” to this Plan and as may be amended with the consent of Concordia, acting reasonably, and the Majority Private Placement Parties, to reflect the Governance Terms, the redesignation of the Common Shares as Limited Voting Shares and such other terms and conditions as agreed to by Concordia and the Majority Private Placement Parties;
 
“Articles of Arrangement” means the articles of arrangement of the Applicants in respect of the Arrangement, in form and substance satisfactory to the Applicants and the Majority Initial Consenting Debtholders, each acting reasonably, that are required to be filed with the CBCA Director in order for the Arrangement to become effective on the Effective Date;
 
“Business Day” means any day, other than a Saturday, Sunday or a statutory or civic holiday, on which banks are generally open for business in Toronto, Ontario, New York, New York, and London, England;
 
“Cash Collateral Account” has the meaning given to it in that certain Limited Consent, dated as of April 16, 2018, by and among Concordia, the Secured Term Loan Agent and the lenders party thereto;
 
“CBCA” means the Canada Business Corporations Act, R.S.C. 1985, c. C-44, as amended;
 
- 2 -

“CBCA Director” means the Director appointed under section 260 of the CBCA;
 
“CBCA Proceedings” means the proceedings commenced by the Applicants under the CBCA on October 20, 2017 in connection with this Plan;
 
“Certificate of Arrangement” means the certificate giving effect to the Arrangement, to be issued by the CBCA Director pursuant to section 192(7) of the CBCA upon receipt of the Articles of Arrangement in respect of Concordia and CHCL in accordance with section 262 of the CBCA;
 
“CHCL” means Concordia Healthcare (Canada) Limited;
 
“CIJL” means Concordia Investments (Jersey) Limited;
 
“Cinven Agreement” means the governance agreement dated October 21, 2015 between Concordia and Cinven Capital Management (V) General Partner Limited;
 
“Circular” means the management information circular of Concordia dated May 15, 2018, as it may be amended, modified and/or supplemented from time to time, with the consent of the Majority Initial Consenting Debtholders, acting reasonably, subject to the terms of the Interim Order or other Order of the Court;
 
“Claim” means any right or claim of any Person that may be asserted or made in whole or in part against the applicable Persons, or any of them, in any capacity, whether or not asserted or made, in connection with any indebtedness, liability or obligation of any kind whatsoever, and any interest accrued thereon or costs payable in respect thereof, whether at law or in equity, including by reason of the commission of a tort (intentional or unintentional), by reason of any breach of contract or other agreement (oral or written), by reason of any breach of duty (including, any legal, statutory, equitable or fiduciary duty) or by reason of any equity interest, right of ownership of or title to property or assets or right to a trust or deemed trust (statutory, express, implied, resulting, constructive or otherwise), and together with any security enforcement costs or legal costs associated with any such claim, and whether or not any indebtedness, liability or obligation is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, unsecured, perfected, unperfected, present or future, known or unknown, by guarantee, warranty, surety or otherwise, and whether or not any right or claim is executory or anticipatory in nature, including any claim made or asserted against the applicable Persons, or any of them, through any affiliate, subsidiary, associated or related Person, or any right or ability of any Person to advance a claim for an accounting, reconciliation, contribution, indemnity, restitution or otherwise with respect to any matter, grievance, action (including any class action or proceeding before an administrative or regulatory tribunal), cause or chose in action, whether existing at present or commenced in the future;
 
“Class A Special Shares” means the Class A special shares in the capital of Concordia to be issued to GSO having the rights and terms as contemplated by the Governance Terms;
 
- 3 -

“Class B Special Shares” means the Class B special shares in the capital of Concordia to be issued to Solus having the rights and terms as contemplated by the Governance Terms;
 
“Collateral Agents” means Goldman Sachs Bank USA and U.S. Bank National Association in their capacities as collateral agents under the Secured Term Loan Agreement and the Secured Notes Indenture, respectively;
 
“Common Shares” means common shares in the capital of Concordia, as such shares will be redesignated as Limited Voting Shares pursuant to the Articles Amendments on the Effective Date in accordance with Section 5.3;
 
“Concordia” means Concordia International Corp.;
 
“Concordia Entities” means Concordia and all of its direct and indirect subsidiaries;
 
“Concordia Released Parties” means, collectively, the Concordia Entities, and each of their respective current and former directors, officers, managers, partners, employees, auditors, financial advisors, legal counsel and agents, including the Proxy and Information Agent and the Escrow Agent;
 
“Consenting Debtholders” means, collectively, the Consenting Secured Debtholders and the Consenting Unsecured Debtholders;
 
“Consenting Secured Debtholders” means, collectively, the Secured Debtholders that have executed and remain, at the relevant time, subject to the Support Agreement (or a joinder agreement thereto);
 
“Consenting Unsecured Debtholder Notes Election Pro Rata Share” means, with respect to each Consenting Unsecured Debtholder that holds Secured Term Loans, the percentage that such Consenting Unsecured Debtholder’s principal amount of Non-Elected Secured Term Loans bears to the total principal amount of Non-Elected Secured Term Loans held by all Consenting Unsecured Debtholders;
 
“Consenting Unsecured Debtholders” means, collectively, the Unsecured Debtholders that have executed and remain, at the relevant time, subject to the Support Agreement (or a joinder agreement thereto);
 
“Court” means the Ontario Superior Court of Justice (Commercial List);
 
“Debt” means, collectively, the Secured Debt and the Unsecured Debt;
 
“Debt Documents” means, collectively, the Secured Debt Documents and the Unsecured Debt Documents, and “Debt Document” means any one of such documents;
 
“Debtholder Claims” means, collectively, the Secured Debtholder Claims and the Unsecured Debtholder Claims;
 
- 4 -

“Debtholders” means, collectively, the Secured Debtholders and the Unsecured Debtholders;
 
“Designated Offshore Securities Market” has the meaning given to that term in Rule 902 of Regulation S as promulgated by the United States Securities and Exchange Commission under the United States Securities Act of 1933, as amended from time to time, and the rules and regulations promulgated thereunder, or any successor statute;
 
“Direct Registration System” means an electronic register of the New Limited Voting Shares, Class A Special Shares and Class B Special Shares, as applicable, maintained by a transfer agent selected by Concordia;
 
“Distribution Record Date” means a date to be determined by Concordia in consultation with the Trustees, the Agents and the Majority Initial Consenting Debtholders for purposes of distributions under this Plan, provided that in respect of the Secured Term Loans, the Secured Swap Instruments and the Unsecured Equity Bridge Loans, the Distribution Record Date shall be June 27, 2018 or such other date as determined by Concordia and the Majority Initial Consenting Debtholders, acting reasonably;
 
“DTC” means the Depository Trust & Clearing Corporation and its successors and assigns;
 
“Early Consent Date” means 5:00 p.m. on June 6, 2018, or such later date as Concordia may determine;
 
“Early Consenting Debtholders” means, collectively, the Early Consenting Secured Debtholders and the Early Consenting Unsecured Debtholders;
 
“Early Consenting Secured Debtholder” means a Secured Debtholder that (i) executes the Support Agreement or a Joinder Agreement (as defined in the Support Agreement) prior to the Early Consent Date and complies with all of its obligations under the Support Agreement in all material respects (including for certainty, and without limitation, voting in favour of the Plan prior to the Voting Deadline), other than a beneficial Noteholder, (ii) votes in favour of the Plan prior to the Early Consent Date, (iii) otherwise supports the Arrangement in a manner satisfactory to Concordia and the Majority Initial Consenting Debtholders, or (iv) any transferee of Secured Term Loans from a Person listed in (i)-(iii) above to the extent such transferee provides, on or prior to the Loan Transfer Evidence Deadline, evidence satisfactory to the Applicants and the Proxy and Information Agent, acting reasonably, that such Secured Term Loans transferred to such transferee were voted by the applicable holder of such Secured Term Loans on the Record Date in favour of the Secured Debtholders’ Arrangement Resolution on or prior to the Early Consent Date (or, in the case of a Secured Term Loan Lender that executes the Support Agreement or a Joinder Agreement prior to the Early Consent Date, the Voting Deadline) and that such vote was not withdrawn or changed (such Secured Term Loan Lender, an “Early Consenting Secured Term Loan Transferee”), and in each case that holds such Secured Debt as of the Distribution Record Date;
 
- 5 -

“Early Consenting Unsecured Debtholder” means an Unsecured Debtholder that (i) executes the Support Agreement or a Joinder Agreement (as defined in the Support Agreement) prior to the Early Consent Date and complies with all of its obligations under the Support Agreement in all material respects (including for certainty, and without limitation, voting in favour of the Plan prior to the Voting Deadline), other than a beneficial Noteholder, (ii) votes in favour of the Plan prior to the Early Consent Date, (iii) otherwise supports the Arrangement in a manner satisfactory to Concordia and the Majority Initial Consenting Debtholders, or (iv) any transferee of Unsecured Equity Bridge Loans from a Person listed in (i)-(iii) above to the extent such transferee provides, on or prior to the Loan Transfer Evidence Deadline, evidence satisfactory to the Applicants and the Proxy and Information Agent, acting reasonably, that such Unsecured Equity Bridge Loans transferred to such transferee were voted by the applicable holder of such Unsecured Equity Bridge Loans on the Record Date in favour of the Unsecured Debtholders’ Arrangement Resolution on or prior to the Early Consent Date (or, in the case of an Unsecured Equity Bridge Loan Lender that executes the Support Agreement or a Joinder Agreement prior to the Early Consent Date, the Voting Deadline) and that such vote was not withdrawn or changed (such Unsecured Equity Bridge Loan Lender, an “Early Consenting Unsecured Equity Bridge Loan Transferee”), and in each case that holds such Unsecured Debt as of the Distribution Record Date;
 
“Effective Date” means the date shown on the Certificate of Arrangement issued by the CBCA Director;
 
“Effective Time” means a time on the Effective Date as the Applicants and the Majority Initial Consenting Debtholders may agree, each acting reasonably;
 
“Equity Unsecured Bridge Loan Settlement” means the settlement and termination of the Two Year Equity Bridge Credit and Guaranty Agreement, as agreed to by Concordia and the lenders party thereto;
 
“Escrow Agent” means, collectively, Kingsdale Shareholder Services US LLC and Kingsdale Partners LP, or such other escrow agent as may be agreed by the parties to the Escrow Agreements;
 
“Escrow Agreements” means, collectively, the escrow agreements to be entered into by the Escrow Agent, the Applicants and the applicable Funding Private Placement Parties or agents or representatives on their behalves, in each case in connection with the Private Placement;
 
“EUR/USD Exchange Rate” means the U.S. Federal Reserve daily U.S. Dollar to Euro exchange rate;
 
“EUR New Senior Secured Term Loans” means New Senior Secured Term Loans denominated in Euros;
 
EUR New Senior Secured Term Loans Allocation Amount” means €300 million;
 
- 6 -

“EUR New Senior Secured Term Loans Deficiency” means the amount by which the aggregate New Senior Secured Term Loans Currency Elections for EUR New Senior Secured Term Loans made in accordance with Section 3.1(e) (expressed as a Euro dollar amount) is less than the EUR New Senior Secured Term Loans Allocation Amount, if applicable;
 
“EUR New Senior Secured Term Loans Election Amount” means the percentage of New Senior Secured Term Loans elected by a EUR New Senior Secured Term Loans Elector to be issued to such EUR New Senior Secured Term Loans Elector as EUR New Senior Secured Term Loans (based on the EUR/USD Exchange Rate on the FX Date);
 
“EUR New Senior Secured Term Loans Elector” has the meaning given to it in Section 3.1(f);
 
“EUR New Senior Secured Term Loans Elector Pro Rata Share” means, with respect to each EUR New Senior Secured Term Loans Elector, the percentage that the principal amount of EUR New Senior Secured Term Loans such EUR New Senior Secured Term Loans Elector has elected to receive in accordance with Section 3.1(e) (expressed as a Euro dollar amount) bears to the total principal amount of EUR New Senior Secured Term Loans that all EUR New Senior Secured Term Loans Electors have elected to receive in accordance with Section 3.1(e) (expressed as a Euro dollar amount);
 
“EUR New Senior Secured Term Loans Excess” means the amount by which the aggregate New Senior Secured Term Loans Currency Elections for EUR New Senior Secured Term Loans made in accordance with Section 3.1(e) (expressed as a Euro dollar amount) exceeds the EUR New Senior Secured Term Loans Maximum Amount, if applicable;
 
“EUR New Senior Secured Term Loans Maximum Amount” means €400 million;
 
“Euros” means euros;
 
“Existing Equity” means all Existing Shares and all options, warrants, rights or similar instruments derived from, relating to, or exercisable, convertible or exchangeable therefor;
 
“Existing Equity Class Action Claims” means, collectively, (i) the claims asserted in the proceedings pending before the Ontario Superior Court of Justice under the title Ronald J. Valliere and Shauntelle Paul v. Concordia International Corp., Mark Thompson and Adrian De Saldanha (Court File No. CV-17-584809-00CP), (ii) the claims asserted in the proceedings pending before the Superior Court of Quebec under the title Robert Landry v. Concordia International Corp., Mark Thompson and Adrian De Saldanha (Court File No. 500-06-000834-164), (iii) the claims asserted in the proceedings pending before the United States District Court for the Southern District of New York under the title Andrew Meyer, individually and On Behalf of All Others Similarly Situated v. Concordia International Corp., Mark Thompson and Adrian De Saldanha (Court File No. l : 16-cv-06467), and (iv) any claim for contribution or indemnity in respect of or related to those claims listed in (i) to (iii) above;
 
- 7 -

“Existing Equity Holders” means the holders of any Existing Equity;
 
“Existing Shareholders” means holders of the Existing Shares, in their capacities as such;
 
“Existing Shares” means all Common Shares outstanding immediately prior to the Effective Date;
 
“Final Order” means the Order of the Court approving the Arrangement under section 192 of the CBCA, which shall include such terms as may be necessary or appropriate to give effect to the Arrangement and this Plan, in form and substance satisfactory to the Applicants and the Majority Initial Consenting Debtholders, each acting reasonably;
 
“Funded Amounts” means the aggregate of all Private Placement Commitments (i) deposited with the Escrow Agent in accordance with the Subscription Agreement and not withdrawn from escrow in accordance with the Subscription Agreement and the Escrow Agreements prior to the Effective Date, or (ii) satisfied in such other manner as Concordia and the applicable Private Placement Party may agree in writing;
 
“Funding Private Placement Party” means a Private Placement Party that (i) deposits its Private Placement Commitment with the Escrow Agent in accordance with the Subscription Agreement, or (ii) satisfies its Private Placement Commitment in such other manner as agreed to by Concordia and the applicable Private Placement Party in writing, and in each case is not a Terminated Private Placement Party;
 
“Funding Private Placement Party Shares” means, with respect to each Funding Private Placement Party, the number of Private Placement Shares that such Funding Private Placement Party has agreed to purchase from Concordia determined by dividing its Private Placement Commitment by the Issue Price;
 
“FX Date” means the date that is ten (10) days prior to the anticipated Effective Date, or such other date as may be agreed by Concordia and the Majority Initial Consenting Debtholders;
 
GBP” means pounds sterling;
 
“GBP/USD Exchange Rate” means the U.S. Federal Reserve daily U.S. Dollar to GBP exchange rate;
 
“Governance Terms” means the governance terms with respect to reorganized Concordia as set forth in the Governance Term Sheet attached as Appendix O to the Circular and as otherwise may be agreed by Concordia and the Majority Private Placement Parties;
 
“Governmental Entity” means any government, regulatory authority, governmental department, agency, commission, bureau, official, minister, Crown corporation, court, board, tribunal or dispute settlement panel or other law, rule or regulation-making organization or entity: (i) having or purporting to have jurisdiction on behalf of any nation, province, territory or state or any other geographic or political subdivision of any of them; or (ii) exercising, or entitled or purporting to exercise any administrative, executive, judicial, legislative, policy, regulatory or taxing authority or power;
 
- 8 -

“GSO” means one or more funds for which GSO Capital Partners LP or its affiliates act as investment manager, advisor or sub-advisor;
 
“Initial Consenting Secured Debtholders” means, collectively, the Consenting Secured Debtholders that executed the Support Agreement on May 1, 2018, which are represented by the Initial Consenting Secured Debtholders Advisors as of May 1, 2018;
 
“Initial Consenting Secured Debtholders Advisors” means, collectively, Osier, Hoskin & Harcourt LLP and White & Case LLP, as legal advisors, Houlihan Lokey Capital, Inc., as financial advisor, and Deloitte LLP, as tax advisor, to the Initial Consenting Secured Debtholders;
 
“Initial Consenting Unsecured Debtholders” means, collectively, the Consenting Unsecured Debtholders that executed the Support Agreement on May 1, 2018, which are represented by the Initial Consenting Unsecured Debtholders Advisors as of May 1, 2018;
 
“Initial Consenting Unsecured Debtholders Advisors” means, collectively, Paul, Weiss Rifkind, Wharton & Garrison LLP, Bennett Jones LLP, and Ashurst LLP, as legal advisors, and Greenhill & Co., LLC, as financial advisor, to the Initial Consenting Unsecured Debtholders;
 
“Insurance Policies” means, any insurance policy maintained by Concordia pursuant to which Concordia or any of its current or former directors or officers are insured;
 
“Interim Order” means the interim order of the Court in respect of the Applicants pursuant to the CBCA, in form and substance acceptable to the Applicants and the Majority Initial Consenting Debtholders, each acting reasonably, which, among other things, approves the calling of, and the date for, the Meetings, as such order may be amended from time to time in a manner acceptable to the Applicants and the Majority Initial Consenting Debtholders, each acting reasonably;
 
“Intermediary” means a broker, custodian, investment dealer, nominee, bank, trust company or other intermediary;
 
“Investor Rights Agreement” means an agreement to be entered into among Concordia and the Private Placement Parties with respect to certain governance and other arrangements and registration rights as contemplated by the Governance Terms, in form and substance satisfactory to Concordia, acting reasonably, and the Majority Private Placement Parties;
 
“Issue Price” means $13.69 per Limited Voting Share;
 
- 9 -

“Law” means any law, statute, constitution, treaty, convention, code, injunction, order, decree, consent decree, judgment, rule regulation, ordinance or other pronouncement having the effect of law whether in Canada, the United States or any other country, or any domestic or foreign state, county, province, city or other political subdivision or of any Governmental Entity;
 
“L/C Issuer” has the meaning given to it in the Secured Term Loan Agreement;
 
“Letter of Credit” has the meaning given to it in the Secured Term Loan Agreement;
 
“Letter of Credit Fee” has the meaning given to it in the Secured Term Loan Agreement;
 
“Limited Voting Shares” means limited voting shares in the capital of Concordia, having the rights and terms as contemplated by the Governance Terms and as may otherwise be agreed by Concordia and the Majority Private Placement Parties;
 
“Loan Transfer Evidence Deadline” means 5:00 p.m. on June 28, 2018, or such other date as determined by Concordia and the Majority Initial Consenting Debtholders, acting reasonably;
 
“Majority Private Placement Parties” means, at the relevant time, Remaining Private Placement Parties holding in the aggregate more than two-thirds (662/3%) of the aggregate Private Placement Commitments of all Remaining Private Placement Parties under the Subscription Agreement;
 
“Majority Initial Consenting Debtholders” means, collectively, (i) the Majority Initial Consenting Secured Debtholders and (ii) the Majority Initial Consenting Unsecured Debtholders;
 
“Majority Initial Consenting Secured Debtholders” means, collectively, Initial Consenting Secured Debtholders holding in aggregate more than half (50%) of the aggregate principal amount of Secured Debt held by all Initial Consenting Secured Debtholders, at the applicable time;
 
“Majority Initial Consenting Unsecured Debtholders” means, collectively, Initial Consenting Unsecured Debtholders holding in aggregate more than half (50%) of the aggregate principal amount of Unsecured Debt held by all Initial Consenting Unsecured Debtholders, at the applicable time;
 
“Management Incentive Plan” means a new management incentive plan for Concordia, acceptable to Concordia and the Majority Initial Consenting Debtholders, which management incentive plan shall provide for the granting of various types of equity awards, including stock options, share appreciation rights, restricted shares, restricted share units, deferred share units and other share-based awards as determined by the board of directors of reorganized Concordia (or the applicable compensation committee) following the Effective Date, and which management incentive plan shall provide for the issuance of Limited Voting Shares comprising an aggregate amount not exceeding 7.5% of the outstanding Limited Voting Shares of Concordia immediately following the completion of the transactions set forth in Section 5.3;
 
- 10 -

“Meetings” means, collectively, (i) the Secured Debtholders’ Meeting, (ii) the Unsecured Debtholders’ Meeting and (iii) the Shareholders’ Meeting;
 
“New Directors” means the individuals appointed to the board of directors of Concordia on the Effective Date in accordance with the Governance Terms;
 
“New Limited Voting Shares” means, collectively, the Unsecured Debt Exchange Shares, the Reallocated Unsecured Shares, the Unsecured Debtholder Early Consent Shares and the Funding Private Placement Party Shares;
 
“New Senior Secured Debt” means, collectively, the New Senior Secured Term Loans and the New Senior Secured Notes;
 
“New Senior Secured Debt Aggregate Principal Amount” means an amount equal to (i) (a) 93.3835% of the aggregate principal amount of the Secured Debtholder Claims held by the Early Consenting Secured Debtholders, less (b) the portion of the Secured Debt Repayment Amount paid to the Early Consenting Secured Debtholders, less (c) the aggregate Secured Debtholder Early Consent Cash Consideration paid to the Early Consenting Secured Debtholders, and the results of the foregoing divided by (ii) the fraction that the aggregate principal amount of the Secured Debtholder Claims held by the Early Consenting Secured Debtholders represents of the aggregate principal amount of all Secured Debtholder Claims held by all Secured Debtholders; provided that for the purposes of determining the principal amount of Secured Debtholder Claims in the foregoing formula, Secured Debt denominated in GBP shall be converted to U.S. Dollars based on the GBP/USD Exchange Rate on the FX Date;
 
“New Senior Secured Debt Guarantors” means certain of the Concordia Entities that shall guarantee the New Senior Secured Term Loans and New Senior Secured Notes as described in the Circular and/or as may otherwise be agreed by the Applicants, the Majority Initial Consenting Secured Debtholders and the Majority Private Placement Parties, each acting reasonably;
 
“New Senior Secured Noteholders” means those Secured Debtholders that receive New Senior Secured Notes on the Effective Date in accordance with this Plan;
 
“New Senior Secured Notes” means the new senior secured notes to be issued by Concordia pursuant to the New Senior Secured Notes Indenture, which notes will be denominated in U.S. Dollars in a maximum aggregate principal amount of $300,000,000;
 
“New Senior Secured Notes Allocation Amount” means $300,000,000 less the principal amount of New Senior Secured Notes to be issued to Secured Noteholders as contemplated by Sections 3.1 (a)(iv) and 3.1(b)(i);
 
“New Senior Secured Notes Deficiency” means the amount by which the aggregate New Senior Secured Notes Elections made in accordance with Section 3.1 (b)(iii) (expressed as a dollar amount) is less than the New Senior Secured Notes Allocation Amount, if applicable;
 
- 11 -

“New Senior Secured Notes Election” has the meaning given to it in Section 3.1(b)(iii);
 
“New Senior Secured Notes Election Amount” means, with respect to each New Senior Secured Notes Elector, the amount of New Senior Secured Notes it has elected to receive pursuant to Section 3.l(b)(iii), as may be adjusted pursuant to Section 3.1(c) or Section 3.1 (d);
 
“New Senior Secured Notes Election Deadline” means 5:00 p.m. on June 28, 2018, or such other date as the Applicants and the Majority Initial Consenting Secured Debtholders may agree, each acting reasonably;
 
“New Senior Secured Notes Elector” has the meaning given to it in Section 3.1(c);
 
“New Senior Secured Notes Elector Pro Rata Share” means, with respect to each New Senior Secured Notes Elector, the percentage that the principal amount of New Senior Secured Notes that such New Senior Secured Notes Elector has elected to receive in accordance with Section 3.1 (b)(iii) bears to the total principal amount of New Senior Secured Notes that all New Senior Secured Notes Electors have elected to receive in accordance with Section 3.1 (b)(iii);
 
“New Senior Secured Notes Elector Settlement Information” means such information as Concordia and/or its agent may reasonably request of a New Senior Secured Notes Elector in order to effect the delivery of such New Senior Secured Notes Elector’s New Senior Secured Notes in accordance with this Plan;
 
“New Senior Secured Notes Excess” means the amount by which the aggregate New Senior Secured Notes Elections made in accordance with Section 3.1(b)(iii) (expressed as a dollar amount) exceeds the New Senior Secured Notes Allocation Amount, if applicable;
 
“New Senior Secured Notes Indenture” means the indenture to be entered into on the Effective Date by Concordia, the New Senior Secured Debt Guarantors and the New Senior Secured Notes Trustee on the terms substantially as described in the Circular and/or as may otherwise be agreed by the Applicants, the Majority Initial Consenting Secured Debtholders and the Majority Private Placement Parties, each acting reasonably, pursuant to which the New Senior Secured Notes will be issued;
 
“New Senior Secured Notes Trustee” means the indenture trustee under the New Senior Secured Notes Indenture, as agreed to by the Applicants, the Majority Initial Consenting Secured Debtholders and the Majority Private Placement Parties, each acting reasonably;
 
“New Senior Secured Term Loan Agent” means the agent under the New Senior Secured Term Loan Agreement, as agreed to by the Applicants, the Majority Initial Consenting Secured Debtholders and the Majority Private Placement Parties, each acting reasonably;
 
- 12 -

“New Senior Secured Term Loan Agreement” means the senior secured term loan agreement to be entered into (or deemed to be entered into, as applicable) on the Effective Date by Concordia, the New Senior Secured Debt Guarantors, the New Senior Secured Term Loan Agent and the New Senior Secured Term Loan Lenders on the terms substantially as described in the Circular and/or as may otherwise be agreed by the Applicants, the Majority Initial Consenting Secured Debtholders and the Majority Private Placement Parties, each acting reasonably, pursuant to which the New Senior Secured Term Loans will be issued;
 
“New Senior Secured Term Loan Eligible Debt” means the Secured Term Loans and the Secured Swap Instruments;
 
“New Senior Secured Term Loan Lender Information” means such information and documentation as the New Senior Secured Term Loan Agent may require from recipients of the New Senior Secured Term Loans in order to comply with any anti-money laundering, know your client, proceeds of crime and other applicable Laws to the New Senior Secured Term Loan Agent, or any applicable customary policies or procedures of the New Senior Secured Term Loan Agent;
 
“New Senior Secured Term Loan Lenders” means those Secured Debtholders that receive New Senior Secured Term Loans on the Effective Date in accordance with this Plan;
 
“New Senior Secured Term Loans” means the new senior secured term loans to be issued pursuant to the New Senior Secured Term Loan Agreement, which term loans will be denominated in part in Euros and in part in U.S. Dollars in amounts as determined by Concordia with the consent of the Majority Initial Consenting Secured Debtholders and the Majority Private Placement Parties;
 
“New Senior Secured Term Loans Currency Election” has the meaning given to it in Section 3.1(e);
 
“New Senior Secured Term Loans Currency Election Deadline” means 5:00 p.m. on June 28, 2018, or such other date as the Applicants and the Majority Initial Consenting Secured Debtholders may agree, each acting reasonably;
 
“Non-Currency Elected Secured Debt” means New Senior Secured Term Loan Eligible Debt held by a Secured Debtholder in respect of which a New Senior Secured Term Loans Currency Election has not been made in accordance with Section 3.1(e);
 
“Non-Currency Electing Pro Rata Share” means, with respect to each Non-Currency Electing Secured Debtholder, the percentage that such Non-Currency Electing Secured Debtholder’s principal amount of Non-Currency Elected Secured Debt bears to the total principal amount of Non-Currency Elected Secured Debt held by all Non-Currency Electing Secured Debtholders;
 
“Non-Currency Electing Secured Debtholder” has the meaning given to it in Section 3.1 (e);
 
- 13 -

“Non-Elected Secured Term Loans” means Secured Term Loans held by a Consenting Unsecured Debtholder in respect of which a New Senior Secured Notes Election has not been made in accordance with Section 3.1 (b)(iii);
 
“Noteholder” means a holder of (i) Secured Notes, (ii) 7.00% Unsecured Notes, or (iii) 9.50% Unsecured Notes, as applicable;
 
“Obligations” means all liabilities, duties and obligations, including without limitation principal and interest, any make whole, redemption or similar premiums, reimbursement obligations, fees, penalties, damages, guarantees, indemnities, costs, expenses or otherwise, and any other liabilities, duties or obligations, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, the applicable Debt Document;
 
“Order” means any order entered by the Court in the CBCA Proceedings;
 
“Person” means an individual, a corporation, a partnership, a limited liability company, organization, trustee, executor, administrator, a trust, an unincorporated association, a Governmental Entity or any agency, instrumentality or political subdivision of a Governmental Entity, or any other entity or body;
 
“Plan” means this plan of arrangement and any amendments, modifications or supplements hereto made in accordance with the terms hereof or made at the direction of the Court in the Interim Order or Final Order or otherwise with the consent of the Applicants and the Majority Initial Consenting Debtholders, each acting reasonably;
 
“Private Placement” means the private placement pursuant to which the Private Placement Parties will commit to purchase the Private Placement Shares in accordance with the Subscription Agreement and this Plan;
 
“Private Placement Commitment” means the respective amount of the Private Placement expressed as a dollar amount that each Private Placement Party agrees to subscribe for, as set forth in the Subscription Agreement (as may be adjusted from time to time in accordance with the terms of the Subscription Agreement);
 
“Private Placement Commitment Consideration” means cash in the amount of $44,000,000, earned and payable to the Private Placement Parties pursuant to the Subscription Agreement, as may be adjusted pursuant to the terms of the Subscription Agreement;
 
“Private Placement Parties” means those Persons who are party to the Subscription Agreement and who have agreed to purchase Limited Voting Shares pursuant to the Private Placement in accordance with the terms of the Subscription Agreement (as such parties may be replaced or as additional parties may agree to be bound by the Subscription Agreement from time to time in accordance with the Subscription Agreement);
 
- 14 -

“Private Placement Pro Rata Share” means, as to any Funding Private Placement Party, the percentage that such Funding Private Placement Party’s Private Placement Commitment bears to the Total Offering Size;
 
“Private Placement Shares” means up to the 42,830,276 Limited Voting Shares to be issued following the Share Consolidation to the Private Placement Parties pursuant to the Private Placement, subject to Section 5.2(a) of this Plan;
 
“Proxy and Information Agent” means Kingsdale Partners LP;
 
“Reallocated Unsecured Shares” means the number of Limited Voting Shares equal to the number of Limited Voting Shares in the Unsecured Early Consent Share Pool less the aggregate number of Unsecured Debtholder Early Consent Shares issued following the Share Consolidation to the Early Consenting Unsecured Debtholders pursuant to Section 3.2(a)(iii), subject to Section 5.2(a) of this Plan;
 
“Record Date” means 5:00 p.m. on May 9, 2018;
 
“Released Claims” means, collectively, the matters that are subject to release and discharge pursuant to Sections 7.1 and 7.2, as applicable;
 
“Released Parties” means, collectively, the Concordia Released Parties, the Securityholder Released Parties and the Additional Released Parties, as applicable;
 
“Remaining Private Placement Parties” means the Private Placement Parties that are not Terminated Private Placement Parties at the applicable time;
 
“Remaining Secured Debt” has the meaning given to it in Section 5.3(d)(i);
 
“Remaining Unsecured Debt” has the meaning given to it in Section 5.3(d)(iii);
 
“Revolving Lender” has the meaning given to it in the Secured Term Loan Agreement;
 
“Secured Debt” means, collectively, the debt outstanding under the Secured Debt Documents;
 
“Secured Debt Documents” means, collectively, (i) the Secured Term Loan Agreement; (ii) the Secured Notes Indenture; (iii) the Secured Swap Instruments; and (iv) all related documentation, including, without limitation, all guarantee and security documentation, related to the foregoing;
 
“Secured Debt Repayment Amount” means $500,000,000 in cash;
 
“Secured Debtholder” means a holder of Secured Debt, in its capacity as such;
 
“Secured Debtholder Claims” means all Obligations in respect of the Secured Debt and the Secured Debt Documents; provided, however, that the total principal amount of the Secured Debtholder Claims with respect to the Secured Swap Instruments shall be in the amount of $114,431,046;
 
- 15 -

“Secured Debtholder Early Consent Cash Consideration” means, with respect to each Early Consenting Secured Debtholder, cash in an amount equal to 5% of the principal amount of Secured Debt held by such Early Consenting Secured Debtholder (including, for greater certainty, any Early Consenting Secured Term Loan Transferee in respect of Secured Term Loans transferred to it in accordance with this Plan) as of the Distribution Record Date and voted in favour of the Plan (i) by the Early Consent Date, or (ii) in the case of an Early Consenting Secured Debtholder that is party to the Support Agreement (other than in respect of any Secured Notes it does not hold in registered form), by the Voting Deadline, in each case paid in exchange for its Secured Debtholder Claims in accordance with this Plan, provided that for the purpose of calculating the Secured Debtholder Early Consent Cash Consideration, Secured Debt denominated in GBP shall be converted to U.S. Dollars based on the GBP/USD Exchange Rate on the FX Date to the extent such Secured Debtholder Early Consent Cash Consideration is paid in U.S. Dollars;
 
“Secured Debtholder Pro Rata Share” means the percentage that the principal amount of Secured Debt held by a Secured Debtholder bears to the aggregate principal amount of all Secured Debt as at the Distribution Record Date, provided that for the purposes of determining the Secured Debtholder Pro Rata Share, (i) the principal amount of Secured Debt shall be determined in accordance with 3.1(h), and (ii) all Secured Debt denominated in GBP shall be converted to U.S. Dollars based on the GBP/USD Exchange Rate on the FX Date;
 
“Secured Debtholders’ Arrangement Resolution” means the resolution of the Secured Debtholders relating to the Arrangement to be considered at the Secured Debtholders’ Meeting, substantially in the form attached as Appendix “A” to the Circular;
 
“Secured Debtholders’ Meeting” means the meeting of the Secured Debtholders as of the Record Date to be called and held pursuant to the Interim Order for the purpose of considering and voting on the Secured Debtholders’ Arrangement Resolution and to consider such other matters as may properly come before such meeting and includes any adjournment(s) or postponement(s) of such meeting;
 
“Secured Noteholders” means the holders of the Secured Notes;
 
“Secured Notes” means the 9.00% First Lien Senior Secured Notes due 2022 issued under the Secured Notes Indenture;
 
“Secured Notes Trustee” means U.S. Bank National Association, as Trustee and as Collateral Agent under the Secured Notes Indenture, and any successor thereof;
 
“Secured Notes Indenture” means the Indenture for the Secured Notes dated October 13, 2016 by and among Concordia, the guarantors party thereto, and the Secured Notes Trustee, as amended, modified and/or supplemented from time to time as of the date hereof;
 
- 16 -

“Secured Swap Confirmations” means the Swap Confirmations entered into as of August 17, 2016 and November 8, 2016 between Goldman Sachs International and CIJL in accordance with the Secured Swap ISDA;
 
“Secured Swap Interest Settlement Agreement” means the Settlement Agreement entered into as of November 25, 2017 between Goldman Sachs International and Concordia;
 
“Secured Swap Instruments” means the Secured Swap ISDA and the Secured Swap Confirmations, as amended by the Secured Swap Interest Settlement Agreement;
 
“Secured Swap ISDA” means the International Swaps and Derivatives Association 2002 Master Agreement dated as of August 15, 2016, between Goldman Sachs International and CIJL (as amended, or supplemented, together with all schedules, annexes and exhibits thereto);
 
“Secured Swap Lender” means Goldman Sachs International, the swap provider under the Secured Swap Instruments, and any permitted assignee;
 
“Secured Term Loan Agent” means Goldman Sachs Bank USA, in its capacity as Administrative Agent and Collateral Agent under the Secured Term Loan Agreement and in any other capacity under the Secured Term Loan Agreement, and any successor thereof;
 
“Secured Term Loan Agreement” means the Credit and Guaranty Agreement dated October 21, 2015 by and among, inter alia, Concordia, the guarantors party thereto, the Secured Term Loan Agent, and the lenders and other parties thereto, as amended, modified and/or supplemented from time to time;
 
“Secured Term Loan Lenders” means the lenders from time to time under the Secured Term Loans;
 
“Secured Term Loans” means the secured term loans issued and outstanding pursuant to the Secured Term Loan Agreement;
 
“Securityholder Released Parties” means, collectively, (i) the Trustees and Agents, the Administrative Agent under the Two Year Equity Bridge Credit and Guaranty Agreement, in each case including any predecessors in such capacity and, for all such entities (including predecessors), in any of their respective capacities under the applicable Debt Documents or the Two Year Equity Bridge Credit and Guaranty Agreement, (ii) the Early Consenting Debtholders, and (iii) for each of the entities named in the foregoing clauses (i) and (ii), each of their respective current and former directors, officers, managers, partners, employees, auditors, financial advisors, legal counsel and agents which, for the avoidance of doubt, shall include the Advisors;
 
“Share Consolidation” has the meaning given to it in Section 5.3(c);
 
“Share FMV” has the meaning given to it in Section 5.3(d)(iii);
 
- 17 -

“Shareholders’ Arrangement Resolution” means the resolution of the Existing Shareholders relating to the Arrangement to be considered at the Shareholders’ Meeting, substantially in the form attached as Appendix “C” to the Circular;
 
“Shareholders’ Meeting” means the meeting of the Existing Shareholders as of the Record Date to be called and held pursuant to the Interim Order for the purpose of considering and voting on the Shareholders’ Arrangement Resolution and to consider such other matters as may properly come before such meeting and includes any adjournment(s) or postponement(s) of such meeting;
 
“Solus” means one or more funds for which Solus Alternative Asset Management LP or its affiliates act as investment manager, advisor or sub-advisor;
 
“Subordinated Promissory Note” means the Non-Negotiable Subordinated Promissory Note made by Concordia Healthcare Inc. in favour of Guillermo Herrera, dated December 20, 2013, or any permitted assignee thereof, as amended, modified and/or supplemented from time to time;
 
“Subordinated Promissory Note Settlement” means the settlement and termination of the Subordinated Promissory Note, as agreed to by Concordia and the Subordinated Promissory Noteholder;
 
“Subordinated Promissory Noteholder” means Guillermo Herrera, in his capacity as stockholders’ representative and the holder of the Subordinated Promissory Note, or any permitted assignee thereof;
 
“Subscription Agreement” means the subscription agreement dated May 1, 2018 among Concordia and the Private Placement Parties, as it may be amended, modified and/or supplemented from time to time;
 
“Subsidiary Guarantors” means, collectively, Concordia Laboratories Inc., S.a.R.L., Concordia Pharmaceuticals Inc., S.a.R.L., Concordia Investments (Jersey) Limited, Concordia Financing (Jersey) Limited, Amdipharm Holdings S.a.R.L., Amdipharm AG, Amdipharm B.V., Amdipharm Limited, Amdipharm Mercury Holdco UK Limited, Amdipharm Mercury UK Ltd., Concordia Holdings (Jersey) Limited, Amdipharm Mercury International Limited, Concordia Investment Holdings (UK) Limited, Mercury Pharma Group Limited, Concordia International Rx (UK) Limited, Abcur AB, Mercury Pharmaceuticals Limited, Focus Pharma Holdings Limited, Focus Pharmaceuticals Limited, Mercury Pharma (Generics) Limited, Mercury Pharmaceuticals (Ireland) Limited and Mercury Pharma International Limited;
 
“Support Agreement” means the support agreement (including all schedules attached thereto) among Concordia and the Consenting Debtholders dated May 1, 2018, as it may be amended, modified and/or supplemented from time to time;
 
“Terminated Private Placement Party” means a Private Placement Party that (i) is a Defaulting Private Placement Party (as such term is defined in the Subscription Agreement), (ii) is a Non-Investing Private Placement Party (as such term is defined in the Subscription Agreement) or (iii) is an Objecting Private Placement Party (as such term is defined in the Subscription Agreement), in each case in respect of whom the Subscription Agreement is terminated;
 
- 18 -

“Total Offering Size” means $586,500,000, subject to any reduction in accordance with the Subscription Agreement;
 
“Transfer Agent” means, collectively, TSX Trust Company and Continental Stock Transfer & Trust Company;
 
“Trustees” means, collectively, the Secured Notes Trustee and the Unsecured Notes Trustees;
 
“TSX” means the Toronto Stock Exchange;
 
“Two Year Equity Bridge Credit and Guaranty Agreement” means the Two Year Equity Bridge Credit and Guaranty Agreement dated October 21, 2015 by and among, inter alia, Concordia, the guarantors party thereto, the administrative agent, and the lenders from time to time party thereto, as amended, modified and/or supplemented from time to time;
 
“Unsecured Debt” means, collectively, the debt outstanding under the Unsecured Debt Documents;
 
“Unsecured Debt Documents” means, collectively: (i) the 7.00% Unsecured Notes Indenture, (ii) the 9.50% Unsecured Notes Indenture, (iii) the Unsecured Equity Bridge Loan Agreement; and (iv) all related documentation, including, without limitation, all guarantee and security documentation, related to the foregoing;
 
“Unsecured Debt Exchange Shares” means the aggregate 3,893,661 Limited Voting Shares to be issued following the Share Consolidation to Unsecured Debtholders in exchange for their Unsecured Debtholder Claims in accordance with Section 3.2(a)(i) of this Plan, subject to Section 5.2(a) of this Plan;
 
“Unsecured Debtholder” means a holder of Unsecured Debt, in its capacity as such;
 
“Unsecured Debtholder Claims” means all Obligations in respect of the Unsecured Debt and the Unsecured Debt Documents;
 
“Unsecured Debtholder Early Consent Shares” means 1.1974 Limited Voting Shares per $1,000 of principal amount of Unsecured Debtholder Claims held by an Early Consenting Unsecured Debtholder (including, for greater certainty, any Early Consenting Unsecured Equity Bridge Loan Transferee in respect of Unsecured Equity Bridge Loans transferred to it in accordance with this Plan) as of the Distribution Record Date and voted in favour of the Plan (i) by the Early Consent Date, or (ii) in the case of an Early Consenting Unsecured Debtholder that is party to the Support Agreement (other than in respect of any Unsecured Notes it does not hold in registered form), by the Voting Deadline, subject to Section 5.2(a) of this Plan, which Limited Voting Shares shall be issued following the Share Consolidation;
 
- 19 -

“Unsecured Debtholder Pro Rata Share” means the percentage that the principal amount of Unsecured Debt plus accrued and unpaid interest thereon (calculated at the contractual non-default rate) held by an Unsecured Debtholder bears to the aggregate principal amount of all Unsecured Debt plus accrued and unpaid interest thereon (calculated at the contractual non-default rate) as at the Distribution Record Date;
 
“Unsecured Debtholder Share Registration Form” means the Unsecured Debtholder Share Registration Form to be distributed to Unsecured Equity Bridge Loan Lenders in order for them to provide registration and delivery instructions in respect of the Unsecured Debt Exchange Shares, Reallocated Unsecured Shares and Unsecured Debtholder Early Consent Shares to which they are entitled under this Plan;
 
“Unsecured Debtholders’ Arrangement Resolution” means the resolution of the Unsecured Debtholders relating to the Arrangement to be considered at the Unsecured Debtholders’ Meeting, substantially in the form attached as Appendix “B” to the Circular;
 
“Unsecured Debtholders’ Meeting” means the meeting of the Unsecured Debtholders as of the Record Date to be called and held pursuant to the Interim Order for the purpose of considering and voting on the Unsecured Debtholders’ Arrangement Resolution and to consider such other matters as may properly come before such meeting and includes any adjournment(s) or postponement(s) of such meeting;
 
“Unsecured Early Consent Share Pool” means the 1,946,831 Limited Voting Shares available for issuance to Early Consenting Unsecured Debtholders in exchange for their Unsecured Debtholder Claims in the aggregate in accordance with Section 3.2(a)(iii) of this Plan, subject to Section 5.2(a) of this Plan;
 
“Unsecured Equity Bridge Loan Agreement” means the Extended Equity Bridge Credit and Guaranty Agreement dated October 21, 2015 by and among, inter alia, Concordia, the guarantors party thereto, the Unsecured Equity Bridge Loan Agent, and the lenders party thereto, as amended, modified and/or supplemented from time to time;
 
“Unsecured Equity Bridge Loan Agent” means Wilmington Trust, National Association, as Administrative Agent under the Unsecured Equity Bridge Loan Agreement, and any successor thereof;
 
“Unsecured Equity Bridge Loan Lenders” means the lenders from time to time under the Unsecured Equity Bridge Loan Agreement;
 
“Unsecured Equity Bridge Loans” means the loans issued and outstanding pursuant to the Unsecured Equity Bridge Loan Agreement;
 
“Unsecured Noteholders” means the holders of the Unsecured Notes;
 
- 20 -

“Unsecured Notes” means, collectively, the 7.00% Unsecured Notes and the 9.50% Unsecured Notes;
 
“Unsecured Notes Indentures” means, collectively, the 7.00% Unsecured Notes Indenture and the 9.50% Unsecured Notes Indenture;
 
“Unsecured Notes Trustees” means, collectively, the 7.00% Unsecured Notes Trustee and the 9.50% Unsecured Notes Trustee;
 
“U.S. Dollars” or “$” means the lawful currency of the United States of America;
 
“USD New Senior Secured Term Loans” means New Senior Secured Term Loans denominated in U.S. Dollars, in an amount as determined by Concordia with the consent of the Majority Initial Consenting Secured Debtholders and the Majority Private Placement Parties; and
 
“Voting Deadline” means 5:00 p.m. on June 15, 2018, or such later date as may be agreed by Concordia and the Majority Initial Consenting Debtholders in the event that the Meetings are postponed or adjourned.
 
1.2
Certain Rules of Interpretation
 
For the purposes of this Plan:
 
(a)
Unless otherwise expressly provided herein, any reference in this Plan to an instrument, agreement or an Order or an existing document or exhibit filed or to be filed means such instrument, agreement, Order, document or exhibit as it may have been or may be amended, modified, restated or supplemented in accordance with its terms;
 
(b)
The division of this Plan into articles and sections is for convenience of reference only and does not affect the construction or interpretation of this Plan, nor are the descriptive headings of articles and sections intended as complete or accurate descriptions of the content thereof;
 
(c)
The use of words in the singular or plural, or with a particular gender, including a definition, shall not limit the scope or exclude the application of any provision of this Plan to such Person (or Persons) or circumstances as the context otherwise permits;
 
(d)
The words “includes” and “including” and similar terms of inclusion shall not, unless expressly modified by the words “only” or “solely”, be construed as terms of limitation, but rather shall mean “includes but is not limited to” and “including but not limited to”, so that references to included matters shall be regarded as illustrative without being either characterizing or exhaustive;
 
- 21 -

(e)
Unless otherwise specified, time periods within or following which any payment is to be made or act is to be done shall be calculated by excluding the day on which the period commences and including the day on which the period ends;
 
(f)
Unless otherwise provided, any reference to a statute or other enactment of parliament, a legislature or other Governmental Entity includes all regulations made thereunder, all amendments to or re-enactments of such statute or regulations in force from time to time, and, if applicable, any statute or regulation that supplements or supersedes such statute or regulation;
 
(g)
References to a specific Recital, Article or Section shall, unless something in the subject matter or context is inconsistent therewith, be construed as references to that specific Recital, Article or Section of this Plan, whereas the terms “this Plan”, “hereof’, “herein”, “hereto”, “hereunder” and similar expressions shall be deemed to refer generally to this Plan and not to any particular Recital, Article, Section or other portion of this Plan and include any documents supplemental hereto; and
 
(h)
The word “or” is not exclusive.
 
1.3
Governing Law
 
This Plan shall be governed by and construed in accordance with the laws of Ontario and the federal laws of Canada applicable therein. All questions as to the interpretation or application of this Plan and all proceedings taken in connection with this Plan and its provisions shall be subject to the exclusive jurisdiction of the Court.
 
1.4
Currency
 
Unless otherwise stated, all references in this Plan to sums of money are expressed in, and all payments provided for herein shall be made in, U.S. Dollars.
 
1.5
Date for Any Action
 
If the date on which any action is required to be taken hereunder by a Person is not a Business Day, such action shall be required to be taken on the next succeeding day which is a Business Day.
 
1.6
Time
 
Time shall be of the essence in this Plan. Unless otherwise specified, all references to time expressed in this Plan and in any document issued in connection with this Plan mean local time in Toronto, Ontario, Canada, and any reference to an event occurring on a Business Day shall mean prior to 5:00 p.m. on such Business Day.
 
- 22 -

ARTICLE 2
PRIVATE PLACEMENT
 
2.1
Issuance of Private Placement Shares
 
On the Effective Date, subject to and in accordance with the terms of the Subscription Agreement, and in accordance with the times, steps and sequences set forth in Section 5.3, (i) Concordia shall cause to be issued and delivered to each Funding Private Placement Party its Funding Private Placement Party Shares at the Issue Price, (ii) Concordia shall pay to each Funding Private Placement Party its Private Placement Pro Rata Share of the Private Placement Commitment Consideration in accordance with Article 4, (iii) Concordia shall cause to be issued and delivered to GSO that number of Class A Special Shares as agreed by Concordia and GSO, and (iv) Concordia shall cause to be issued and delivered to Solus that number of Class B Special Shares as agreed by Concordia and Solus. The Private Placement Shares, the Class A Special Shares and the Class B Special Shares shall be duly authorized, validly issued, fully paid and non-assessable and the Private Placement Shares shall bear a legend restricting the transfer of such Private Placement Shares, as contemplated by Section 2(e) of the Subscription Agreement.
 
ARTICLE 3
TREATMENT OF AFFECTED PARTIES
 
3.1
Treatment of Secured Debtholders
 
(a)
On the Effective Date, and in accordance with the times, steps and in the sequence set forth in Section 5.3, each Secured Debtholder shall receive:
 
(i)
all accrued and unpaid interest outstanding in respect of its Secured Debt (calculated at the contractual non-default rate applicable under the relevant Secured Debt Document, not including any compounding interest, and based on the outstanding principal amount of the applicable Secured Debt (not reduced by any unamortized original issue discount), unless there has been a payment default with respect to any scheduled payments of interest (at contractual non-default rates, not including compounding interest) or amortization, as applicable, under the Secured Debt, on or prior to the Effective Date, in which case interest shall accrue at the default-rate for the period from such default until the Effective Date, for certainty, without giving effect to any acceleration under the Secured Debt that may have arisen from the commencement of the CBCA Proceedings) in full in cash;
 
(ii)
its Secured Debtholder Pro Rata Share of the Secured Debt Repayment Amount;
 
(iii)
its Secured Debtholder Pro Rata Share of the Additional Cash Amount, if any;
 
(iv)
New Senior Secured Term Loans and/or New Senior Secured Notes, at its election in accordance with this Section 3.1, if applicable, in an aggregate principal amount equal to its Secured Debtholder Pro Rata Share of the New Senior Secured Debt Aggregate Principal Amount, as adjusted based on the EUR/USD Exchange Rate on the FX Date to the extent that it receives a portion of its New Senior Secured Term Loans in the form of EUR New Senior Secured Term Loans; and
 
- 23 -

(v)
if the Secured Debtholder is an Early Consenting Secured Debtholder, its Secured Debtholder Early Consent Cash Consideration, all of which shall, and shall be deemed to, be received in full and final settlement of its Secured Debt and its Secured Debtholder Claims; provided that all consideration payable by Concordia to the Secured Swap Lender in consideration for the full and final settlement of its Secured Debtholder Claims under the Secured Swap Instruments shall be paid by Concordia for and on behalf of CIJL.
 
(b)
Each Secured Debtholder shall receive its New Senior Secured Debt as contemplated by Section 3.1(a)(iv) as follows:
 
(i)
in respect of the Secured Notes held by a Secured Noteholder, in the form of New Senior Secured Notes;
 
(ii)
in respect of the Secured Swap Instruments held by the Secured Swap Lender, in the form of New Senior Secured Term Loans; and
 
(iii)
in respect of the Secured Term Loans held by a Secured Term Loan Lender, in the form of New Senior Secured Term Loans; provided that each Secured Term Loan Lender as of the Record Date shall be entitled to elect (a “New Senior Secured Notes Election”) to receive all or a portion of its New Senior Secured Debt in respect of its Secured Term Loans in the form of New Senior Secured Notes by submitting a New Senior Secured Notes Election to Concordia (or its agents) prior to the New Senior Secured Notes Election Deadline pursuant to the terms of the Interim Order, subject to Section 3.1(c) and Section 3.1(d).
 
(c)
In the event that New Senior Secured Notes Elections are made such that the New Senior Secured Notes Election Amount elected for by Secured Term Loan Lenders pursuant to Section 3.1 (b)(iii) (each such Secured Term Loan Lender, a “New Senior Secured Notes Elector”) would exceed the New Senior Secured Notes Allocation Amount, each New Senior Secured Notes Elector shall be deemed to have made a partial election to receive New Senior Secured Term Loans in respect of its Secured Term Loans in an amount equal to its New Senior Secured Notes Elector Pro Rata Share of the New Senior Secured Notes Excess and its New Senior Secured Notes Election Amount shall be reduced on a corresponding basis such that the total principal amount of all New Senior Secured Notes to be issued in respect of Secured Term Loans pursuant to this Plan is equal to the New Senior Secured Notes Allocation Amount.
 
- 24 -

(d)
In the event that New Senior Secured Notes Elections are made such that the New Senior Secured Notes Election Amount elected for by the New Senior Secured Notes Electors pursuant to Section 3.1 (b)(iii) would be less than the New Senior Secured Notes Allocation Amount, each Consenting Unsecured Debtholder that holds Secured Term Loans and that did not make a New Senior Secured Notes Election for all or any portion of its Secured Term Loans shall be deemed to have made a New Senior Secured Notes Election (and to be a New Senior Secured Notes Elector) in respect of its Secured Term Loans in an amount equal to its Consenting Unsecured Debtholder Notes Election Pro Rata Share of the New Senior Secured Notes Deficiency such that the total principal amount of New Senior Secured Notes to be issued to New Senior Secured Notes Electors (in such capacity) in respect of Secured Term Loans pursuant to this Plan is equal to the New Senior Secured Notes Allocation Amount, and the amount of New Senior Secured Term Loans that would otherwise have been issued to such Consenting Unsecured Debtholder shall be reduced by an amount equal to its Consenting Unsecured Debtholder Notes Election Pro Rata Share of the New Senior Secured Notes Deficiency; provided that no such Consenting Unsecured Debtholder shall receive, in respect of its Secured Term Loans, New Senior Secured Debt in an aggregate principal amount in excess of its Secured Debtholder Pro Rata Share of the New Senior Secured Debt Aggregate Principal Amount, as adjusted based on the EUR/USD Exchange Rate on the FX Date to the extent that it receives a portion of its New Senior Secured Term Loans in the form of EUR New Senior Secured Term Loans and, the total principal amount of New Senior Secured Notes to be issued to New Senior Secured Notes Electors may be less than the New Senior Secured Notes Allocation Amount as a result of such maximum.
 
(e)
Each Secured Debtholder entitled to receive New Senior Secured Term Loans pursuant to Section 3.1 (b)(ii) or 3.1 (b)(iii) shall be entitled to elect (a “New Senior Secured Term Loans Currency Election”) to receive its New Senior Secured Term Loans as USD New Senior Secured Term Loans and/or EUR New Senior Secured Term Loans (in an amount determined based on the EUR/USD Exchange Rate on the FX Date) in the proportions specified by such Secured Debtholder by submitting its New Senior Secured Term Loans Currency Election to Concordia (or its agents) prior to the New Senior Secured Term Loans Currency Election Deadline, subject to Sections 3.1(f) and 3.1(g). Each Secured Debtholder entitled to receive New Senior Secured Term Loans and that did not make a New Senior Secured Term Loans Currency Election (a “Non-Currency Electing Secured Debtholder”) shall be deemed to have elected to receive USD New Senior Secured Term Loans, subject to Section 3.1(g);
 
(f)
In the event that New Senior Secured Term Loans Currency Elections are made such that the aggregate principal amount of EUR New Senior Secured Term Loans elected for by Secured Debtholders pursuant to Section 3.1(e) (each such Secured Debtholder, a “EUR New Senior Secured Term Loan Elector”) would exceed the EUR New Senior Secured Term Loans Maximum Amount, each EUR New Senior Secured Term Loan Elector shall be deemed to have made a partial election to receive USD New Senior Secured Term Loans in respect of the New Senior Secured Term Loans it is entitled to receive pursuant to this Plan in an amount equal to its EUR New Senior Secured Term Loans Elector Pro Rata Share of the EUR New Senior Secured Term Loans Excess and its EUR New Senior Secured Term Loans Election Amount shall be reduced on a corresponding basis such that the total principal amount of all EUR New Senior Secured Term Loans to be issued pursuant to this Plan is equal to the EUR New Senior Secured Term Loans Allocation Amount.
 
- 25 -

(g)
In the event that New Senior Secured Term Loans Currency Elections are made such that the aggregate principal amount of EUR New Senior Secured Term Loans elected for by EUR New Senior Secured Term Loan Electors pursuant to Section 3.1 (e) would be less than the EUR New Senior Secured Term Loans Allocation Amount, each Non-Currency Electing Secured Debtholder shall be deemed to have made a New Senior Secured Term Loans Currency Election in respect of the New Senior Secured Term Loans to which it is entitled to receive pursuant to Section 3.1(b)(ii) or 3.1 (b)(iii) in an amount equal to its Non-Currency Electing Pro Rata Share of the EUR New Senior Secured Term Loans Deficiency and shall be deemed to receive the balance of its New Senior Secured Term Loans (if any) as USD New Senior Secured Term Loans; provided that no such Non-Currency Electing Secured Debtholder shall receive, in respect of its New Senior Secured Term Loan Eligible Debt, New Senior Secured Debt in an aggregate principal amount in excess of its Secured Debtholder Pro Rata Share of the New Senior Secured Debt Aggregate Principal Amount, as adjusted based on the EUR/USD Exchange Rate on the FX Date to the extent that it receives a portion of its New Senior Secured Term Loans in the form of EUR New Senior Secured Term Loans and, the total principal amount of EUR New Senior Secured Term Loans may be less than the EUR New Senior Secured Term Loans Allocation Amount as a result of such maximum.
 
(h)
Except as otherwise noted herein, all references to the principal amount of the Secured Debt or the Secured Debtholder Claims contained in this Plan shall refer to the principal amount of such Secured Debt or Secured Debtholder Claims reduced by any unamortized original issue discount and excluding any make-whole premiums, redemption premiums or other similar premiums. The amount of unamortized original issue discount in respect of the Secured Debt shall be calculated on the basis as has been agreed to by Concordia and the Majority Initial Consenting Debtholders prior to the execution of the Support Agreement.
 
(i)
The compensation, the reasonable and documented fees, expenses and disbursements (including, without limitation, the reasonable and documented fees, expenses and disbursements of attorneys, advisors or agents retained or utilized by the Secured Notes Trustee, the Secured Term Loan Agent and the Secured Swap Lender, as applicable, acting reasonably), and the indemnity claims of Secured Notes Trustee, the Secured Term Loan Agent and the Secured Swap Lender, as applicable, in accordance with the applicable Secured Debt Documents shall be paid in full in cash by Concordia pursuant to the applicable Secured Debt Documents.
 
(j)
After giving effect to the terms of this Section 3.1:
 
- 26 -

(i)
subject in all respects to the below subsection (ii) of this Section 3.1(j), (A) the Secured Debtholder Claims and the Secured Debt Documents shall, and shall be deemed to, have been irrevocably and finally extinguished, (B) each Secured Debtholder shall have no further right, title or interest in or to the Secured Debt or its Secured Debtholder Claims, and (C) the Secured Debt and the Secured Debt Documents shall be cancelled, and all security interests granted by any of the Concordia Entities in respect of the Secured Debt shall be, and shall be deemed to be, released, discharged and extinguished pursuant to this Plan; and
 
(ii)
notwithstanding anything else to the contrary herein, the transactions contemplated by this Plan shall not affect, terminate or amend in any manner the rights of the Secured Term Loan Agent, any L/C Issuer or any Revolving Lender in respect of (1) the Cash Collateral Account and the funds held therein or (2) any fees (including any Letter of Credit Fees) or other amounts owing to such parties in respect of the outstanding Letters of Credit, in each case unless otherwise agreed by Concordia, the Secured Term Loan Agent and the applicable L/C Issuer or Revolving Lenders.
 
(k)
On the Effective Date, in accordance with Section 5.3(m), the reasonable and documented outstanding fees and expenses of the Initial Consenting Secured Debtholders Advisors shall be paid in full in cash by Concordia pursuant to the terms and conditions of applicable fee arrangements entered into by Concordia with such Initial Consenting Secured Debtholders Advisors (except as such terms relate to the timing for payment of such reasonable and documented outstanding fees and expenses).
 
3.2
Treatment of Unsecured Debtholders
 
(a)
On the Effective Date, and in accordance with the steps and in the sequence set forth in Section 5.3, each Unsecured Debtholder shall receive:
 
(i)
its Unsecured Debtholder Pro Rata Share of the Unsecured Debt Exchange Shares,
 
(ii)
its Unsecured Debtholder Pro Rata Share of the Reallocated Unsecured Shares, if any, and
 
(iii)
if the Unsecured Debtholder is an Early Consenting Unsecured Debtholder, its Unsecured Debtholder Early Consent Shares,
 
which shall, and shall be deemed to, be received in full and final settlement of its Unsecured Debt and its Unsecured Debtholder Claims.
 
- 27 -

(b)
The compensation, the reasonable and documented fees, expenses and disbursements (including, without limitation, the reasonable and documented fees, expenses and disbursements of attorneys, advisors or agents retained or utilized by the Unsecured Notes Trustees and the Unsecured Equity Bridge Loan Agent (including any of its predecessors), as applicable, acting reasonably), and the indemnity claims of Unsecured Notes Trustees and the Unsecured Equity Bridge Loan Agent (including any of its predecessors), as applicable, in accordance with the applicable Unsecured Debt Documents shall be paid in full in cash by Concordia pursuant to the applicable Unsecured Debt Documents.
 
(c) After giving effect to the terms of this Section 3.2, (i) the Obligations of the Concordia Entities with respect to the Unsecured Debt, the Unsecured Debtholder Claims and the Unsecured Debt Documents shall, and shall be deemed to, have been irrevocably and finally extinguished, (ii) each Unsecured Debtholder shall have no further right, title or interest in or to the Unsecured Debt or its Unsecured Debtholder Claims, and (iii) the Unsecured Debt, the Unsecured Debtholder Claims and the Unsecured Debt Documents shall be cancelled.
 
(d)
On the Effective Date, in accordance with Section 5.3(m), the reasonable and documented outstanding fees and expenses of the Initial Consenting Unsecured Debtholders Advisors shall be paid in full in cash by Concordia pursuant to the terms and conditions of applicable fee arrangements entered into by Concordia with such Initial Consenting Unsecured Debtholders Advisors (except as such terms relate to the timing for payment of such reasonable and documented outstanding fees and expenses).
 
3.3
Treatment of Existing Equity Holders
 
(a)
Each Existing Shareholder shall retain its Existing Shares, subject to the Share Consolidation in accordance with Section 5.3(c) of this Plan and the treatment of fractional interests in accordance with Section 5.2 of this Plan.
 
(b)
Pursuant to this Plan and in accordance with the steps and sequences set forth herein, unless otherwise agreed by Concordia and the Majority Initial Consenting Debtholders, all of the Affected Equity shall be terminated and cancelled, and shall be deemed to be terminated and cancelled without the need for any repayment of capital thereof or any other liability, payment or compensation therefor and, for greater certainty, no Affected Equity Holder shall be entitled to receive any interest, dividends, premium or other payment in connection therewith.
 
(c)
The Affected Equity Claims shall constitute Released Claims and be treated in the manner set forth in Section 7.1.
 
- 28 -

ARTICLE 4
ISSUANCES, DISTRIBUTIONS AND PAYMENTS
 
4.1
Delivery of New Senior Secured Debt
 
(a)
The delivery of the New Senior Secured Notes to be issued pursuant to this Plan shall be made by way of a global note issued in the name of DTC (or its nominee) in respect of the New Senior Secured Notes to be issued to Secured Debtholders that are entitled to receive New Senior Secured Notes under the Plan and who (i) are able to receive the New Senior Secured Notes through DTC as of the Distribution Record Date, or (ii) provide as part of their New Senior Secured Notes Elector Settlement Information, at least three (3) Business Days prior to the anticipated Effective Date or such other date as the Applicants may agree acting reasonably in consultation with the Proxy and Information Agent, the information required in order to receive their New Senior Secured Notes through DTC. Any Secured Term Loan Lender that elects and is entitled to receive New Senior Secured Notes pursuant to this Plan and any Secured Noteholder that has withdrawn its Secured Notes from DTC and holds such Secured Notes in registered form shall receive its New Senior Secured Notes as follows; (x) if such Secured Term Loan Lender or Secured Noteholder provides as part of its New Senior Secured Notes Elector Settlement Information registration details for delivery of such New Senior Secured Notes in registered form, it will receive its New Senior Secured Notes in registered and certificated form, and (y) if such Secured Term Loan Lender or Secured Noteholder requests as part of its New Senior Secured Notes Elector Settlement Information delivery of its New Senior Secured Notes as part of the global note issued in the name of DTC (or its nominee) and has provided the information required for such delivery, through a deposit or withdrawal at custodian deposit to such Secured Term Loan Lender or Secured Noteholder, which deposit or withdrawal at custodian deposit must be (A) initiated by the DTC participant of such Secured Term Loan Lender, and (B) approved by the New Senior Secured Notes Trustee at the direction of the issuer. In the event that a New Senior Secured Notes Elector has not provided Concordia (or its agent) with its New Senior Secured Notes Elector Settlement Information at least three (3) Business Days prior to the anticipated Effective Date, such New Senior Secured Notes Elector’s New Senior Secured Notes shall be issued to the Proxy and Information Agent in the form of a separate global note for the benefit of the New Senior Secured Notes Elector until such time as the New Senior Secured Notes Elector provides its New Senior Secured Notes Elector Settlement Information.
 
(b)
The delivery of the New Senior Secured Term Loans (and any certificates or other evidence of holdings thereof) to be issued pursuant to this Plan shall be made in accordance with standing procedures in place with the New Senior Secured Term Loan Agent, and a register of holders of the New Senior Secured Term Loans will be maintained by the New Senior Secured Term Loan Agent. Each Secured Debtholder receiving New Senior Secured Term Loans shall be deemed to be a party to the New Senior Secured Term Loan Agreement as a lender thereunder. In the event that a New Senior Secured Term Loan Lender has not delivered its New Senior Secured Term Loan Lender Information to the New Senior Secured Term Loan Agent prior to the date that is five (5) Business Days prior to the expected Effective Date, such New Senior Secured Term Loan Lender’s New Senior Secured Term Loans shall be held by the New Senior Secured Term Loan Agent until such time as the New Senior Secured Term Loan Lender provides its New Senior Secured Term Loan Lender Information.
 
- 29 -

4.2
Delivery of New Limited Voting Shares, Class A Special Shares and Class B Special Shares
 
 
(a)
On the Effective Date, all New Limited Voting Shares, the Class A Special Shares and the Class B Special Shares issued in connection with this Plan shall be deemed to be duly authorized, validly issued, fully paid and non-assessable.
 
(b)
On the Effective Date, Concordia shall deliver a treasury direction to the Transfer Agent that directs the Transfer Agent to issue all New Limited Voting Shares, the Class A Special Shares and the Class B Special Shares to be distributed under this Plan and direct the Transfer Agent to use its commercially reasonable efforts to cause the New Limited Voting Shares, the Class A Special Shares and the Class B Special Shares to be distributed under this Plan to be distributed by no later than the second Business Day following the Effective Date (or such other date as the Applicants, the Majority Initial Consenting Debtholders and the Majority Private Placement Parties may agree, each acting reasonably).
 
(c)
The delivery of New Limited Voting Shares, the Class A Special Shares and the Class B Special Shares to be distributed under this Plan will be made either (i) through the facilities of DTC to Intermediaries who, in turn, will make delivery of the New Limited Voting Shares to the ultimate beneficial recipients thereof pursuant to standing instructions and customary practices of DTC, or (ii) by providing Direct Registration System advices or confirmations in the name of the applicable recipient thereof (or its Intermediary) and registered electronically in Concordia’s records which will be maintained by the Transfer Agent.
 
(d)
Each Unsecured Equity Bridge Loan Lender entitled to Unsecured Debt Exchange Shares, Reallocated Unsecured Shares and/or Unsecured Debtholder Early Consent Shares, as applicable, shall be issued and delivered such Limited Voting Shares (i) if such Unsecured Equity Bridge Loan Lender delivers its Unsecured Debtholder Share Registration Form to Concordia in accordance with the instructions contained therein prior to the Distribution Record Date, in accordance with the instructions contained in its Unsecured Debtholder Share Registration Form, and (ii) if such Unsecured Equity Bridge Loan Lender has not delivered its Unsecured Debtholder Share Registration Form to Concordia prior to the Distribution Record Date, in accordance with the name and address of such Unsecured Equity Bridge Loan Lender contained on the books and records of the Unsecured Equity Bridge Loan Agent or Concordia, as applicable.
 
(e)
The aggregate number of New Limited Voting Shares to be issued pursuant to this Plan shall equal 48,670,768 Limited Voting Shares (the “Aggregate Number of New Limited Voting Shares”), subject to Section 5.2(a) of this Plan and any changes to the number of Funding Private Placement Party Shares to be issued pursuant to the Private Placement based on any changes to the Total Offering Size pursuant to the Subscription Agreement; provided that the Aggregate Number of New Limited Voting Shares is calculated based on the 51,283,800 of Existing Shares issued and outstanding as of the Record Date that shall, following the Share Consolidation and the issuance of the New Limited Voting Shares pursuant to this Plan, equal approximately 0.35% of the Limited Voting Shares of Concordia immediately following implementation of this Plan. If the number of Existing Shares outstanding on the Distribution Record Date is not 51,283,800, then the Aggregate Number of New Limited Voting Shares (and the components thereof, including the Private Placement Shares, the Unsecured Debt Exchange Shares, the Unsecured Debtholder Early Consent Shares and the Unsecured Early Consent Share Pool) shall be amended proportionately by Concordia and the Majority Private Placement Parties, each acting reasonably, to reflect the aggregate number of Existing Shares to be actually issued and outstanding on the Effective Date prior to the Effective Time.
 
- 30 -

4.3
Delivery of Payments to Secured Debtholders
 
(a)
The payment by Concordia on the Effective Date of (1) accrued interest owing in respect of the Secured Debt, (2) the Secured Debt Repayment Amount, and (3) the Additional Cash Amount in accordance with Sections 5.3(j)(i), 5.3(j)(iv)(A) and 5.3 (j)(iv)(B), respectively, shall be effected through the delivery of the applicable portion of such amounts by Concordia (or the Escrow Agent on behalf of Concordia) and, in the case of subsections (i) or (ii) below, the allocation of such amounts in accordance with this Plan among the applicable Secured Term Loan Lenders and Secured Noteholders to:
 
(i)
the Secured Term Loan Agent for distribution to each of the applicable Secured Term Loan Lenders in accordance with the Secured Term Loan Agreement and customary practices;
 
(ii)
the Secured Notes Trustee for distribution to the Secured Noteholders in accordance with the Secured Notes Indenture and customary practices; and
 
(iii)
the Secured Swap Lender, or in each case in such other manner as may be agreed by Concordia and the recipient of such payments in writing.
 
(b)
The payment by Concordia on the Effective Date of the Secured Debtholder Early Consent Cash Consideration to Early Consenting Secured Debtholders shall be effected through the delivery of the applicable portion of such amount by Concordia (or the Escrow Agent on behalf of Concordia) together with the allocation of such amounts in accordance with the Plan among the applicable Secured Debtholders:
 
(i)
in the case of Secured Debtholder Early Consent Cash Consideration payable to beneficial Secured Noteholders, through the facilities of DTC to Intermediaries who, in turn, will make delivery of such Secured Debtholder Early Consent Cash Consideration to the ultimate beneficial recipients thereof pursuant to standing instructions and customary practices of such Intermediaries;
 
- 31 -

(ii)
in the case of Secured Debtholder Early Consent Cash Consideration payable to registered Secured Noteholders, to the Secured Notes Trustee for distribution to such registered Secured Noteholders pursuant to standing instructions and customary practices of the Secured Notes Trustee;
 
(iii)
in the case of Secured Debtholder Early Consent Cash Consideration payable to Secured Term Loan Lenders, to the Secured Term Loan Agent for distribution to the applicable Secured Term Loan Lenders in accordance with customary practices; and
 
(iv)
in the case of Secured Debtholder Early Consent Cash Consideration payable to the Secured Swap Lender, using such wire instructions or delivery instructions as are provided by the Secured Swap Lender,
 
 
or in each case in such other manner as may be agreed by Concordia and the recipient of such payments in writing.
 
(c)
Concordia shall be entitled, at its election with the consent of the Majority Initial Consenting Secured Debtholders, acting reasonably, to pay to Secured Debtholders in respect of their Secured Term Loans denominated in GBP all or a portion of the Secured Debt Repayment Amount, the Additional Cash Amount and/or the Secured Debtholder Early Consent Cash Consideration in cash in U.S. Dollars and/or GBP.
 
4.4
Delivery of Private Placement Commitment Consideration
 
The payment by Concordia (or its agent) on the Effective Date of the Private Placement Commitment Consideration to the Funding Private Placement Parties, unless otherwise agreed with Concordia and any one or more Funding Private Placement Party in writing, shall be made by Concordia (or the Escrow Agent on behalf of Concordia) to the applicable Advisors on behalf of the applicable Funding Private Placement Parties using such wire instructions or delivery instructions as are provided by the Advisors at least five (5) Business Days prior to the Effective Date.
 
4.5
No Liability in respect of Deliveries
 
(a)
None of the Concordia Entities, nor their respective directors or officers, shall have any liability or obligation in respect of any deliveries, directly or indirectly, from (i) the Secured Term Loan Agent, (ii) the New Senior Secured Term Loan Agent, (iii) the New Senior Secured Notes Trustee, (iv) DTC, or (v) the Intermediaries, in each case to the ultimate beneficial recipients of any consideration payable or deliverable by the Concordia Entities pursuant to this Plan.
 
- 32 -

(b)
None of the Trustees or Agents shall incur, and each is hereby released and exculpated from, any liability as a result of carrying out any provisions of this Plan and any actions related or incidental thereto, save and except for any gross negligence or wilful misconduct (as determined by a final, non-appealable judgment of a court of competent jurisdiction) on its part. For the avoidance of doubt, this exculpation shall be in addition to, and not in limitation of, all other releases, indemnities and exculpations, and any other applicable law or rules protecting any of the Trustees and Agents from liability. On the Effective Date after the completion of the transactions set forth in Section 5.3, all duties and responsibilities of the Trustees and Agents arising under or related to the Secured Debt Documents and Unsecured Debt Documents, as applicable, shall be discharged except to the extent required in order to effectuate this Plan.
 
4.6
Surrender and Cancellation of Notes
 
(a)
The Secured Notes are held by the Secured Notes Trustee as custodian for DTC (or its nominee) (as registered holder of the Secured Notes on behalf of the Secured Noteholders, subject to any Secured Notes which may be withdrawn from DTC and held in registered form by a Secured Noteholder). On the Effective Date, DTC and each other Person who holds Secured Notes in registered form on the Effective Date shall surrender, or cause the surrender of, the certificate(s) representing the Secured Notes to the Secured Notes Trustee for cancellation in exchange for the consideration payable to Secured Noteholders pursuant to Section 3.1.
 
(b)
The Unsecured Notes are held by the Unsecured Notes Trustee as custodian for DTC (or its nominee) (as sole registered holder of the Unsecured Notes on behalf of the Unsecured Noteholders). On the Effective Date, DTC shall surrender, or cause the surrender of, the certificate(s) representing the Unsecured Notes to the Unsecured Notes Trustee for cancellation in exchange for the consideration payable to Unsecured Noteholders pursuant to Section 3.2.
 
4.7
Application of Plan Distributions
 
Except as set forth in Sections 3.1(a)(i), 4.3(a), 5.3 (d)(ii) and 5.3(j)(i) of this Plan, all amounts paid or payable hereunder on account of the Debtholder Claims (including, for greater certainty, any securities received hereunder) shall be applied as follows: (i) first, in respect of the principal amount of the obligations to which such Debtholder Claims relate, and (ii) second, in respect of the accrued but unpaid interest on such obligations.
 
4.8
Withholding Rights
 
The Applicants shall be entitled to deduct and withhold from any consideration or other amount deliverable or otherwise payable to any Person hereunder such amounts as the Applicants are required to deduct or withhold with respect to such payment under the Income Tax Act (Canada), or any provision of any applicable federal, provincial, state, local or foreign tax law or treaty, in each case, as amended. To the extent that amounts are so deducted or withheld, such deducted or withheld amounts shall be treated for all purposes hereof as having been paid to the relevant Person in respect of which such deduction and withholding was made, provided that such deducted or withheld amounts are actually remitted to the appropriate Governmental Entity.
 
- 33 -

ARTICLE 5
IMPLEMENTATION
 
5.1
Corporate Authorizations
 
The adoption, execution, delivery, implementation and consummation of all matters contemplated under this Plan involving corporate action of any of the Concordia Entities will occur and be effective as of the Effective Date (or such other date as the Applicants and the Majority Initial Consenting Debtholders may agree, each acting reasonably), and will be authorized and approved under this Plan and by the Court, where appropriate, as part of the Final Order, in all respects and for all purposes without any requirement of further action by shareholders, directors or officers of the Concordia Entities. All necessary approvals to take actions shall be deemed to have been obtained from the directors or the shareholders of the Concordia Entities, as applicable.
 
5.2
Fractional Interests
 
(a)
No fractional Limited Voting Shares shall be issued under this Plan, including any fractional interests created as a result of the Share Consolidation, and fractional share interests shall not entitle the owner thereof to vote or to any rights of a holder of Limited Voting Shares. Any legal, equitable, contractual and any other rights or claims (whether actual or contingent, and whether or not previously asserted) of any Person with respect to fractional Limited Voting Shares pursuant to this Plan shall be rounded down to the nearest whole number of Limited Voting Shares without compensation therefor.
 
(b)
The New Senior Secured Debt issued pursuant to this Plan shall be issued in minimum increments of $1,000 in the case of New Senior Secured Debt issued in U.S. Dollars and €1,000 in the case of New Senior Secured Debt issued in Euros, and the amount of New Senior Secured Debt that each Secured Debtholder shall be entitled to under this Plan shall in each case be rounded down to the nearest multiple of $1,000 and €1,000, respectively, without compensation therefor.
 
(c)
All payments made pursuant to this Plan shall be made in minimum increments of $0.01 or £0.01, as applicable, and the amount of any payments to which a Person may be entitled to under this Plan shall be rounded down to the nearest multiple of $0.01 or £0.01, as applicable.
 
5.3
Effective Date Transactions
 
Commencing at the Effective Time, the following events or transactions will occur, or be deemed to have occurred and be taken and effected, in the following order in five minute increments (unless otherwise indicated) and at the times set out in this Section 5.3 (or in such other manner or order or at such other time or times as the Applicants and the Majority Initial Consenting Debtholders may agree, each acting reasonably), without any further act or formality required on the part of any Person, except as may be expressly provided herein (provided nothing herein shall restrict or otherwise prohibit the Concordia Entities from completing certain other intercompany transactions prior to, concurrently with, or following the transactions contemplated by this Section 5.3, provided such intercompany transactions are permitted under the Support Agreement or otherwise acceptable to the Majority Initial Consenting Debtholders):
 
- 34 -

(a)
All Affected Equity shall be terminated and cancelled for no consideration.
 
(b)
The Cinven Agreement shall be terminated and all rights thereunder shall be cancelled for no consideration, or shall be otherwise treated or addressed in a manner acceptable to Concordia and the Majority Private Placement Parties.
 
(c)
The Existing Shares shall be, and shall be deemed to be, consolidated (the “Share Consolidation”) on the basis of one Common Share for every 300 Common Shares outstanding immediately prior to the Effective Time. Any fractional interests in the consolidated Common Shares will, without any further act or formality, be cancelled without payment of any consideration therefor. Notwithstanding any provision of the CBCA, immediately following the completion of such consolidation, the stated capital of the Common Shares shall be equal to the stated capital of the Common Shares immediately prior to such consolidation.
 
(d)
The following shall occur concurrently:
 
(i)
the outstanding principal amount of each Secured Debtholder’s Secured Debt shall be forgiven, settled and extinguished to the extent such principal amount exceeds the aggregate of (A) its Secured Debtholder Pro Rata Share of the Secured Debt Repayment Amount; (B) its Secured Debtholder Pro Rata Share of the Additional Cash Amount; (C) the principal amount of the New Senior Secured Notes and/or New Senior Secured Term Loans to be issued to it in accordance with Section 5.3 (j)(iv)(C); and (D) if the Secured Debtholder is an Early Consenting Secured Debtholder, its Secured Debtholder Early Consent Cash Consideration (the remaining principal amount of each Secured Debtholder’s Secured Debt following such forgiveness, settlement and extinguishment being the “Remaining Secured Debt”). If a Secured Term Loan Lender holds Secured Term Loans denominated in GBP on the Effective Date or will receive EUR New Senior Secured Term Loans on the Effective Date, for the purposes of determining the Remaining Secured Debt in accordance with this Section 5.3(d)(i) such Secured Term Loans and/or EUR New Senior Secured Term Loans shall be converted to U.S. Dollars using the GBP/USD Exchange Rate or to Euros using the EUR/USD Exchange Rate on the Effective Date, as applicable;
 
(ii)
any and all accrued and unpaid interest outstanding in respect of the Secured Debt, if any, other than that interest which is paid pursuant to Section 5.3(j)(i) below, shall be forgiven, settled and extinguished for no consideration;
 
- 35 -

(iii)
the outstanding principal amount of each Unsecured Debtholder’s Unsecured Debt shall be forgiven, settled and extinguished to the extent such principal amount exceeds the aggregate of the fair market value on the Effective Date of (i) its Unsecured Debtholder Pro Rata Share of the Unsecured Debt Exchange Shares; (ii) its Unsecured Debtholder Pro Rata Share of the Reallocated Unsecured Shares; and (iii) if the Unsecured Debtholder is an Early Consenting Unsecured Debtholder, its Unsecured Debtholder Early Consent Shares (collectively, the “Share FMV”) (the remaining principal amount of each Unsecured Debtholder’s Unsecured Debt following such forgiveness, settlement and extinguishment being the “Remaining Unsecured Debt”); and
 
(iv)
any and all accrued and unpaid interest owing to each Unsecured Debtholder shall be forgiven, settled and extinguished for no consideration.
 
(e)
Concordia’s authorized capital and provisions attaching to its shares shall be amended pursuant to the Articles Amendments.
 
(f)
The following shall occur concurrently:
 
(i)
Concordia shall become entitled to all Funded Amounts, including Funded Amounts deposited in escrow with the Escrow Agent pursuant to the Escrow Agreements, subject to Section 6.1, and the Escrow Agent shall be deemed instructed to release to Concordia the Funded Amounts held by the Escrow Agent;
 
(ii)
Concordia shall issue to each Funding Private Placement Party its Funding Private Placement Party Shares in consideration for its Funded Amount, and the Funding Private Placement Party Shares shall be duly authorized, validly issued, fully paid and non-assessable, and Concordia shall add an amount equal to the aggregate of the Funded Amounts to the stated capital in respect of the Limited Voting Shares;
 
(iii)
Concordia shall issue to GSO that number of Class A Special Shares as agreed by Concordia and GSO, and the Class A Special Shares shall be duly authorized, validly issued, fully paid and non-assessable; and
 
(iv)
Concordia shall issue to Solus that number of Class B Special Shares as agreed by Concordia and Solus, and the Class B Special Shares shall be duly authorized, validly issued, fully paid and non-assessable.
 
- 36 -

(g)
Concurrently with the step set forth in Section 5.3(f) above, in exchange for, and in full and final settlement of, the Remaining Unsecured Debt, Concordia shall deliver to each Unsecured Debtholder:
 
(i)
its Unsecured Debtholder Pro Rata Share of the Unsecured Debt Exchange Shares;
 
(ii)
its Unsecured Debtholder Pro Rata Share of the Reallocated Unsecured Shares; and
 
(iii)
if such Unsecured Debtholder is an Early Consenting Unsecured Debtholder, its Unsecured Debtholder Early Consent Shares,
 
and Concordia shall add an amount equal to the aggregate of the Share FMVs to the stated capital in respect of the Limited Voting Shares.
 
(h)
Concurrently with the delivery of the Unsecured Debt Exchange Shares, the Reallocated Unsecured Shares and the Unsecured Debtholder Early Consent Shares as contemplated by Section 5.3(g) and Article 4:
 
(i)
the Unsecured Debtholder Claims shall, and shall be deemed to be, irrevocably and finally extinguished and such Unsecured Debtholder shall have no further right, title or interest in and to the Unsecured Debt or its Unsecured Debtholder Claim; and
 
(ii)
the Unsecured Debt and the Unsecured Debt Documents shall be cancelled, provided that the Unsecured Debt Documents shall remain in effect solely to allow the applicable Trustees and Agents to make the distributions set forth in this Plan.
 
(i)
Concurrently with the steps set forth in Section 5.3(f) above, Concordia shall pay to each Funding Private Placement Party its Private Placement Pro Rata Share of the Private Placement Commitment Consideration in accordance with Section 4.4.
 
(j)
Concurrently with the steps set forth in Section 5.3(f) above:
 
(i)
all accrued and unpaid interest outstanding in respect of the Secured Debt (calculated at the contractual non-default rate applicable under the relevant Secured Debt Document, not including any compound interest and based on the outstanding principal amount of the applicable Secured Debt (not reduced by any unamortized original issue discount), unless there has been a payment default with respect to any scheduled payments of interest (at contractual non-default rates, not including any compound interest) or amortization, as applicable, under the Secured Debt, on or prior to the Effective Date, in which case interest shall accrue at the default-rate for the period from such default until the Effective Date, for certainty, without giving effect to any acceleration under the Secured Debt that may have arisen from the commencement of the CBCA Proceedings) shall be paid by Concordia to the Secured Debtholders in cash;
 
- 37 -

(ii)
Concordia, the New Senior Secured Debt Guarantors and the New Senior Secured Notes Trustee shall enter into the New Senior Secured Notes Indenture together with all related documentation as agreed by the Applicants, the Majority Initial Consenting Secured Debtholders and the Majority Private Placement Parties, each acting reasonably;
 
(iii)
Concordia, the New Senior Secured Debt Guarantors and the New Senior Secured Term Loan Agent shall enter into, and the New Senior Secured Term Loan Lenders shall enter into or be deemed to enter into, the New Senior Secured Term Loan Agreement together with all related documentation as agreed by the Applicants, the Majority Initial Consenting Secured Debtholders and the Majority Private Placement Parties, each acting reasonably;
 
(iv)
in exchange for, and in full and final settlement of, the Remaining Secured Debt, Concordia shall pay to each Secured Debtholder:
 
(A)
its Secured Debtholder Pro Rata Share of the Secured Debt Repayment Amount in accordance with Section 4.3;
 
(B)
its Secured Debtholder Pro Rata Share of the Additional Cash Amount, if any, in accordance with Section 4.3;
 
(C)
its New Senior Secured Debt in the form of New Senior Secured Term Loans and/or New Senior Secured Notes, as applicable in accordance with Section 3.1 (as may be adjusted and/or allocated pursuant to Section 3.1), in an aggregate principal amount equal to its Secured Debtholder Pro Rata Share of the New Senior Secured Debt Aggregate Principal Amount, as adjusted based on the EUR/USD Exchange Rate on the FX Date to the extent that it receives a portion of its New Senior Secured Term Loans in the form of EUR New Senior Secured Term Loans in accordance with Section 3.1, which New Senior Secured Debt shall be distributed in the manner described in Section 4.1; and
 
(D)
if such Secured Debtholder is an Early Consenting Secured Debtholder, its Secured Debtholder Early Consent Cash Consideration in accordance with Section 4.3,
 
provided that all consideration payable by Concordia to the Secured Swap Lender in consideration for the full and final settlement of its Secured Debtholder Claims under the Secured Swap Instruments shall be paid by Concordia on behalf of CIJL.
 
- 38 -

(k)
Except as set forth in Section 3.1(j)(ii), concurrently with the delivery of the Secured Debt Repayment Amount, the Additional Cash Amount, the New Senior Secured Debt and the Secured Debtholder Early Consent Cash Consideration as contemplated by Section 5.3(j)(iv) and Article 4:
 
(1)
the Secured Debtholder Claims shall, and shall be deemed to be, irrevocably and finally extinguished and such Secured Debtholder shall have no further right, title or interest in and to the Secured Debt or its Secured Debtholder Claim;
 
(2)
the Secured Debt and the Secured Debt Documents shall be cancelled, provided that the Secured Debt Documents shall remain in effect solely to allow the applicable Trustees and Agents to make the distributions set forth in this Plan; and
 
(3)
all security interests granted by any of the Concordia Entities in respect of the Secured Debt shall be, and shall be deemed to be, released, discharged and extinguished pursuant to this Plan, and the Collateral Agents shall be directed to file any and all documents necessary to effectuate the release of all liens or security interests created pursuant to the Secured Debt Documents in any and all applicable jurisdictions.
 
(l)
CHCL shall transfer all of its assets to Concordia in consideration for a non-interest bearing promissory note issued by Concordia in a principal amount equal to the value of the transferred assets.
 
(m)
Concordia shall pay in full in cash the outstanding reasonable and documented fees and expenses of the Advisors pursuant to the terms and conditions of applicable fee arrangements entered into by Concordia with the Advisors (except as such terms relate to the timing for payment of such reasonable and documented outstanding fees and expenses).
 
(n)
The releases referred to in Section 7.1 shall become effective.
 
(o)
Unless otherwise agreed by Concordia and the Majority Private Placement Parties the board of directors of Concordia immediately prior to the Effective Time shall be deemed to have resigned and the New Directors shall be deemed to have been appointed.
 
(p)
The board of directors of Concordia, the Existing Shareholders and those persons receiving New Limited Voting Shares pursuant to this Plan shall be deemed to have (i) repealed By-law No. 1 and By-Law No. 2 of Concordia, in each case, effective immediately prior to the Effective Time and (ii) adopted and approved a new general by-law of Concordia, which shall be in form and substance satisfactory to Concordia, acting reasonably, and the Majority Private Placement Parties.
 
- 39 -

(q)
The Management Incentive Plan shall be deemed to be approved by the Existing Shareholders and those persons receiving New Limited Voting Shares pursuant to this Plan.
 
ARTICLE 6
RELEASE OF FUNDS FROM ESCROW
 
6.1
Release of Funds from Escrow
 
The Escrow Agent shall release the Funded Amounts, or portions thereof, as follows and in accordance with the terms of the Escrow Agreements:
 
(a)
On the Effective Date, the Escrow Agent shall release from escrow to or on behalf of Concordia, at the applicable time, the Funded Amounts pursuant to and in accordance with Section 5.3.
 
(b)
If any Funding Private Placement Party (or its Intermediary, as applicable) provides to the Escrow Agent more than its Private Placement Commitment under the Subscription Agreement, the Escrow Agent shall as soon as practicable return any excess funds to such Funding Private Placement Party (or its Intermediary, as applicable).
 
ARTICLE 7
RELEASES
 
7.1
Release of Released Parties
 
At the applicable time pursuant to Section 5.3 each of the Released Parties shall be released and discharged from all present and future actions, causes of action, damages, judgments, executions, obligations, liabilities and Claims of any kind or nature whatsoever arising on or prior to the Effective Date in connection with the Debt, the Debt Documents, the Affected Equity Claims, the Two Year Equity Bridge Credit and Guaranty Agreement, the Equity Unsecured Bridge Loan Settlement, the Subordinated Promissory Note Settlement, the Support Agreement, the Subscription Agreement, the Private Placement, this Plan, the CBCA Proceedings, the transactions contemplated hereunder and any proceedings commenced with respect to or in connection with this Plan, and any other actions or matters related directly or indirectly to the foregoing, provided that nothing in this paragraph shall release or discharge (i) any of the Released Parties from or in respect of its obligations under this Plan, the Support Agreement, the Subscription Agreement, the Investor Rights Agreement or the other Definitive Documents, (ii) any Existing Equity Class Action Claims which shall be treated as set out in Section 7.4 below, or (iii) any Released Party from liabilities or claims attributable to any Released Party’s fraud, wilful misconduct, criminal act or criminal omission, as determined by the final, non-appealable judgment of a court of competent jurisdiction, other than or except in respect of any such liabilities or claims in respect of an Affected Equity Claim, all of which Affected Equity Claims are hereby fully and finally cancelled, released, dismissed and enjoined as of the Effective Date.
 
- 40 -

7.2
Additional Released Parties

At any time and from time to time on or before the date of the Final Order, Schedule “A” to this Plan may be amended, restated, modified or supplemented by Concordia, with the prior written consent of the Majority Private Placement Parties, in order to add any Person as an Additional Released Party provided that such Person, through its conduct or otherwise, has provided the Concordia Entities (or any of them) with consideration or value acceptable to Concordia and the Majority Private Placement Parties, each acting reasonably. Any such amendment, restatement, modification and/or supplement of Schedule “A” shall be deemed to be effective automatically upon receipt of the prior written consent of the Majority Private Placement Parties Upon an amendment, restatement, modification or supplement to Schedule “A”, Concordia shall (i) provide notice to the service list in the CBCA Proceedings of such amendment, restatement, modification and/or supplement of Schedule “A”, and (ii) file a copy thereof with the Court.
 
7.3
Injunctions
 
All Persons are permanently and forever barred, estopped, stayed and enjoined, on and after the Effective Date, with respect to any and all Released Claims, from (i) commencing, conducting or continuing in any manner, directly or indirectly, any action, suits, demands or other proceedings of any nature or kind whatsoever against the Released Parties, as applicable; (ii) enforcing, levying, attaching, collecting or otherwise recovering or enforcing by any manner or means, directly or indirectly, any judgment, award, decree or order against the Released Parties; (iii) creating, perfecting, asserting or otherwise enforcing, directly or indirectly, any lien or encumbrance of any kind against the Released Parties or their property; or (iv) taking any actions to interfere with the implementation or consummation of this Plan; provided, however, that the foregoing shall not apply to the enforcement of any obligations under this Plan.
 
7.4
Existing Equity Class Action Claims
 
From and after the Effective Date, any Person having an Existing Equity Class Action Claim against Concordia or any of its current or former officers and/or directors shall only be permitted to continue its Existing Equity Class Action Claim to the point of determination of liability, if any, and seeking the enforcement of any judgement solely as against the Insurance Policies, to the extent available in respect of any such Existing Equity Class Action Claim. Any such Person shall be irrevocably and forever limited solely to recovery from the proceeds of the Insurance Policies payable on behalf of Concordia or its directors and officers in respect of any such Existing Equity Class Action Claim, and such Person shall have no right to, and shall not, directly or indirectly, make any claim or seek any recoveries from any of the Concordia Entities or any of their respective current or former officers and directors in respect of an Existing Equity Class Action Claim, other than enforcing such Person’s rights to be paid by the applicable insurer(s) from the proceeds of the applicable Insurance Policies. Nothing in this paragraph prejudices, compromises, releases or otherwise affects (i) any right or defence of any insurer in respect of an Insurance Policy or (ii) any Person having an Existing Equity Class Action Claim from recovering against Concordia’s current and former directors and officers for any liabilities or claims attributable to any such director or officer’s fraud, wilful misconduct, criminal act or criminal omission, as determined by the final, non-appealable judgment of a court of competent jurisdiction, provided that all defence costs of any action referred to in this subsection (ii) shall not be paid by any of the Concordia Entities.
 
- 41 -

ARTICLE 8
CONDITIONS PRECEDENT AND IMPLEMENTATION
 
8.1
Conditions to Plan Implementation
 
The implementation of this Plan shall be conditional upon the fulfillment, satisfaction or waiver (to the extent permitted by Section 8.2) of the following conditions:
 
(a)
The Court shall have granted the Final Order and the Final Order shall have become a final order, the implementation, operation or effect of which shall not have been stayed, varied in a manner not acceptable to the Applicants or the Majority Initial Consenting Debtholders, vacated or subject to pending appeal and as to which order any appeal periods relating thereto shall have expired;
 
(b)
No Law shall have been passed and become effective, the effect of which makes the consummation of this Plan illegal or otherwise prohibited;
 
(c)
All conditions to implementation of this Plan set out in the Support Agreement shall have been satisfied or waived in accordance with their terms;
 
(d)
All conditions to implementation of this Plan set out in the Subscription Agreement shall have been satisfied or waived in accordance with their terms;
 
(e)
Concordia shall be a public company following the implementation of the Plan and the Limited Voting Shares shall be approved for trading on the TSX or on another Designated Offshore Securities Market acceptable to the Majority Private Placement Parties, subject only to receipt of customary final documentation; and
 
(f)
The Articles Amendments shall be in form and substance acceptable to Applicants and the Majority Private Placement Parties.
 
8.2
Waiver of Conditions
 
The Applicants and the Majority Initial Consenting Debtholders may at any time and from time to time waive the fulfillment or satisfaction, in whole or in part, of the conditions set out herein, to the extent and on such terms as such parties may agree, each acting reasonably, provided however that the condition set out in Sections 8.1(a), 8.1(b), 8.1(c) and 8.1(d) cannot be waived and the condition set out in Section 8.1(1) can only be waived with the consent of the Applicants and the Majority Private Placement Parties.
 
8.3
Effectiveness
 
This Plan will become effective in the sequence described in Section 5.3 on the filing of the Articles of Arrangement and the issuance of the Certificate of Arrangement, and shall be binding on and enure to the benefit of the Concordia Entities, the Debtholders, the Trustees and Agents, all Existing Equity Holders, all Persons with any Existing Equity Class Action Claim, the Released Parties, the directors and officers of the Concordia Entities and all other Persons named or referred to in, or subject to, this Plan and their respective successors and assigns and their respective heirs, executors, administrators and other legal representatives, successors and assigns. The Articles of Arrangement shall be filed and the Certificate of Arrangement shall be issued in each case with respect to the Arrangement in its entirety. The Certificate of Arrangement shall be conclusive evidence that the Arrangement has become effective and that each of the provisions in Section 5.3 has become effective in the sequence set forth therein. No portion of this Plan shall take effect with respect to any party or Person until the Effective Time.
 
- 42 -

ARTICLE 9
GENERAL
 
9.1
Deemed Consents, Waivers and Agreements
 
At the Effective Time:
 
(a)
each Debtholder and Existing Equity Holder shall be deemed to have consented and agreed to all of the provisions of this Plan in its entirety (both as a Debtholder and as a holder of Existing Equity, if applicable);
 
(b)
each Concordia Entity, Debtholder and Existing Equity Holder shall be deemed to have executed and delivered to the other parties all consents, releases, assignments and waivers, statutory or otherwise, required to implement and carry out this Plan in its entirety; and
 
(c)
all consents, releases, assignments and waivers, statutory or otherwise, required to implement and carry out this Plan in its entirety shall be deemed to have been executed and delivered to the Concordia Entities.
 
9.2
Waiver of Defaults
 
From and after the Effective Time, all Persons shall be deemed to have consented and agreed to all of the provisions of this Plan in its entirety. Without limiting the foregoing, all Persons shall be deemed to have:
 
(a)
waived any and all defaults or events of default, third-party change of control rights or any non-compliance with any covenant, warranty, representation, term, provision, condition or obligation, expressed or implied, in any contract, instrument, credit document, lease, licence, guarantee, agreement for sale or other agreement, written or oral, in each case relating to, arising out of, or in connection with, the Debt or the Debt Documents, the Support Agreement, the Subscription Agreement, the Arrangement, the Arrangement Agreement, this Plan, the transactions contemplated hereunder and any proceedings commenced with respect to or in connection with this Plan and any and all amendments or supplements thereto. Any and all notices of default and demands for payment or any step or proceeding taken or commenced in connection with any of the foregoing shall be deemed to have been rescinded and of no further force or effect, provided that nothing shall be deemed to excuse the Concordia Entities and their respective successors from performing their obligations under this Plan; and
 
- 43 -

(b)
agreed that, if there is any conflict between the provisions of any agreement or other arrangement, written or oral, existing between such Person and the Concordia Entities and the provisions of this Plan, then the provisions of this Plan take precedence and priority and the provisions of such agreement or other arrangement are deemed to be amended accordingly,
 
provided, however, that notwithstanding any other provision of this Plan, nothing herein shall affect the obligations of any of the Concordia Entities to any employee thereof in their capacity as such (for greater certainty, other than with respect to the Affected Equity and the Affected Equity Claims), including any contract of employment between any Person and any of the Concordia Entities.
 
9.3
Compliance with Deadlines and Elections
 
The Applicants have the right to waive strict compliance with the New Senior Secured Notes Election Deadline and the Early Consent Date, and shall be entitled to waive any deficiencies with respect to any elections, forms or other documentation submitted pursuant to this Plan.
 
9.4
Paramountcy
 
From and after the Effective Date, any conflict between this Plan and the covenants, warranties, representations, terms, conditions, provisions or obligations, expressed or implied, of any contract, mortgage, security agreement, indenture, trust indenture, loan agreement, commitment letter, by-laws or other agreement, written or oral, and any and all amendments or supplements thereto existing between one or more of the Debtholders and any of the Concordia Entities as at the Effective Date shall be deemed to be governed by the terms, conditions and provisions of this Plan and the Final Order, which shall take precedence and priority.
 
9.5
Deeming Provisions
 
In this Plan, the deeming provisions are not rebuttable and are conclusive and irrevocable.
 
9.6
Modification of Plan
 
Subject to the terms and conditions of the Support Agreement and the Subscription Agreement;
 
(a)
the Applicants reserve the right to amend, restate, modify and/or supplement this Plan at any time and from time to time, provided that (except as provided in subsection (c) below) any such amendment, restatement, modification or supplement must be contained in a written document that is (i) filed with the Court and, if made following the Meetings, approved by the Court, and (ii) communicated to the Debtholders and Existing Shareholders in the manner required by the Court (if so required);
 
- 44 -

(b)
any amendment, modification or supplement to this Plan may be proposed by the Applicants at any time prior to or at the Meetings, with or without any prior notice or communication (other than as may be required under the Interim Order), and if so proposed and accepted at the Meetings, shall become part of this Plan for all purposes; and
 
(c)
any amendment, modification or supplement to this Plan may be made following the Meetings by the Applicants, without requiring filing with, or approval of, the Court, provided that it concerns a matter which is of an administrative nature and is required to better give effect to the implementation of this Plan and is not materially adverse to the financial or economic interests of any of the Debtholders or Existing Shareholders,
 
For the avoidance of doubt, any modification to the Plan pursuant to this Section 9.6 must be in a form and substance acceptable to the Majority Initial Consenting Debtholders.
 
9.7
Notices
 
Any notice or other communication to be delivered hereunder must be in writing and refer to this Plan and may, as hereinafter provided, be made or given by personal delivery, ordinary mail or email addressed to the respective parties as follows;
 
  (a) If to the Applicants, or any other of the Concordia Entities, at: 
       
   
Concordia International Corp.
   
c/o Goodmans LLP
   
333 Bay Street, Suite 3400
Toronto, Ontario
   
M5H 2S7
       
   
Attention:
Robert J. Chadwick, Brendan O’Neill and Caroline Descours
   
Email:
     
     
 
   
with a copy to:
       
   
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
   
New York, 10036-6522
       
   
Attention:
Paul D. Leake, Shana A. Elberg and Carl T. Tullson
   
Email:
     
     
carl.tullson@skadden.
 
- 45 -

  (b)
If to any of the Initial Consenting Secured Debtholders:
       
   
Osler, Hoskin & Harcourt LLP
   
100 King Street West, Suite 6200
Toronto, Ontario
   
M5X 1B8
       
   
Attention:
Marc Wasserman & Martino Calvaruso
   
Email:
     
 
   
with a copy to:
       
   
White & Case LLP
5 Old Broad Street
London, UK
EC2N 1DW
       
   
Attention:
Christian Pilkington and Ben Davies
   
Email:
     
       
   
and
 
       
   
1221 Avenue of the Americas
New York, NY
   
10020
 
       
   
Attention:
Thomas E Lauria and Harrison Denman
   
Email:
     
 
  (c)
If to any of the Initial Consenting Unsecured Debtholders:
       
   
Bennett Jones LLP
   
3400 One First Canadian Place, P.O. Box 130
Toronto, Ontario
   
M5X 1A4
       
   
Attention:
Kevin Zych and Sean Zweig
   
Email:
     
       
   
with a copy to:
       
   
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
   
New York, NY
   
10019-6064
 
- 46 -

   
Attention:
Andrew N. Rosenberg and Jacob A. Adlerstein
   
Email:
     
 
   
and with a copy to:
       
   
Ashurst LLP
   
5 Appold Street
London, UK
EC2A 2AG
       
   
Attention:
Giles Boothman and Amrit Khosa
   
Email:
     
 
(d)
If to any of the Consenting Debtholders who are neither Initial Consenting Secured Debtholders nor Initial Consenting Unsecured Debtholders at the address set forth for each applicable Consenting Debtholder on its signature page to the Support Agreement,
 
or to such other address as any party above may from time to time notify the others in accordance with this Section 9.7. In the event of any strike, lock-out or other event which interrupts postal service in any part of Canada, all notices and communications during such interruption may only be given or made by personal delivery or by email and any notice or other communication given or made by prepaid mail within the five (5) Business Day period immediately preceding the commencement of such interruption, unless actually received, shall be deemed not to have been given or made. Any such notices and communications so given or made shall be deemed to have been given or made and to have been received on the day of delivery if delivered, or on the day of emailing, provided that such day in either event is a Business Day and the communication is so delivered or emailed before 5:00 p.m. on such day. Otherwise, such communication shall be deemed to have been given and made and to have been received on the next following Business Day. The unintentional failure by the Applicants to give a notice contemplated hereunder to any particular Debtholder or Existing Shareholder shall not invalidate this Plan or any action taken by any Person pursuant to this Plan.
 
9.8
Different Capacities
 
Subject to the Support Agreement and the Interim Order, if any Person holds more than one type, series or class of Existing Equity or Debt, as the case may be, such Person shall have all of the rights given to a holder of each particular type, series or class of Existing Equity or Debt so held. Subject to the Support Agreement and the Interim Order, nothing done by a Person acting in its capacity as a holder of a particular type, series or class of Existing Equity or Debt, as the case may be, affects such Person’s rights as a holder of another type, series or class Existing Equity or Debt.
 
- 47 -

9.9
Consent of Majority Initial Consenting Debtholders and Majority Private Placement Parties
 
For the purposes of this Plan:
 
(a)
any matter requiring the agreement, waiver, consent or approval of the Majority Initial Consenting Debtholders shall be deemed to have been agreed to, waived, consented to or approved by such Majority Initial Consenting Debtholders if such matter is agreed to, waived, consented to or approved in writing by (i) Osler, Hoskin & Harcourt LLP on behalf of the Majority Initial Consenting Secured Debtholders, and (ii) Bennett Jones LLP on behalf of the Initial Consenting Unsecured Debtholders, provided that each of Osler, Hoskin & Harcourt LLP and Bennett Jones LLP confirms in writing (which can be by way of e-mail) that it is providing such agreement, consent, waiver or approval on behalf of the Majority Initial Consenting Secured Debtholders or Majority Initial Consenting Unsecured Debtholders, as applicable; and
 
(b)
any matter requiring the agreement, waiver, consent or approval of the Majority Private Placement Parties shall be deemed to have been agreed to, waived, consented to or approved by the Majority Private Placement Parties if such matter is agreed to, waived, consented to or approved in writing by each of Osler, Hoskin & Harcourt LLP and Bennett Jones LLP, provided that Osler, Hoskin & Harcourt LLP and Bennett Jones LLP confirm in writing (which can be by way of e-mail) that they are providing such agreement, consent, waiver or approval on behalf of the Majority Private Placement Parties.
 
9.10
Further Assurances
 
(a)
Notwithstanding that the transactions and events set out herein will occur and be deemed to occur in the order set out in this Plan without any further act or formality, each of the Persons named or referred to in, affected by or subject to, this Plan will make, do and execute, or cause to be made, done and executed, all such further acts, deeds, agreements, transfers, assurances, instruments or documents as may reasonably be required by any of them to carry out the full intent and meaning of this Plan and to give effect to the transactions contemplated herein.
 
(b)
Without limiting any other provision in this Plan, the Concordia Entities, the Secured Term Loan Agent, the Secured Notes Trustee, the Collateral Agents, the Secured Swap Lender and any of their respective agents, designees or assigns shall be authorized and directed to take such steps and prepare, execute and submit such forms and documents, and complete such filings as are necessary to effectuate and/or evidence the full and final discharge and release of any and all security registrations and/or statements made pursuant to or in connection with the Secured Debt Documents and the full and final discharge and release of any and all security interests and liens upon any and all of the property and assets of the Concordia Entities created under the Secured Debt Documents, in any jurisdiction in which the Concordia Entities have property or assets or conduct business, and each Secured Debtholder shall be deemed to have consented and agreed to all such steps and actions.
 
- 48 -

SCHEDULE A
 
ADDITIONAL RELEASED PARTIES
 
None.
 

SCHEDULE B
 
ARTICLES AMENDMENTS
 
The articles of the above-named corporation are amended as follows:
 
Les statuts de la société mentionnée ci-dessus sont modifiés de la façon suivante:

The Corporation amends its articles to (A) provide for (i) a class of Class A special shares; (ii) a class of Class B special shares; (iii) a class of Class C special shares; and (iv) a fixed number of 7 directors; and (B) redesignate the common shares as limited voting shares.
 
The authorized capital of the Corporation consists of:
 
(a)
an unlimited number of limited voting shares (the “Limited Voting Shares”);
 
(b)
1,000 Class A special shares (the “Class A Special Shares”);
 
(c)
1,000 Class B special shares (the “Class B Special Shares”); and
 
(d)
2,000 Class C special shares (the “Class C Special Shares”).
 
The rights, privileges, restrictions and conditions attaching to the Limited Voting Shares, the Class A Special Shares, the Class B Special Shares and the Class C Special Shares are set forth in Schedule “A” to these Articles of Arrangement.
 
SCHEDULE A
ARTICLES OF ARRANGEMENT
 
Share Provisions
 
1.
Definitions
 
In this Schedule “A” the following terms shall have the following meanings:
 
(a)
“Act” means the Canada Business Corporations Act, as the same exists or may hereafter be amended from time to time;
 
(b)
“Action” shall mean any action, complaint, petition, suit, arbitration, audit, hearing, litigation, judicial or other proceeding, whether civil, administrative or criminal, at law or in equity, before any Governmental Entity;
 

(c)
“Affiliate” (and, with a correlative meaning, “affiliated”) means, with respect to any Person, any direct or indirect Subsidiary of such Person, and any other Person that directly, or through one or more intermediaries, controls or is controlled by or is under common control with such first Person, and includes any account or fund managed by such Person over which such Person has voting or investment discretion, including as investment manager, advisor or subadvisor; provided, that, without limitation to the foregoing, and solely for the purposes of Sections 3.1, 3.9, 4.1 and 4.9, as applicable, (i) an “Affiliate” of a GSO Fund, shall include GSO, any GSO Fund, any of their respective Affiliates and any other Person that, at such time, directly or indirectly through one or more intermediaries, is controlled by, or is under common control with a GSO Fund (but not including limited partners or other investors in any such GSO Fund or any portfolio companies of such GSO Fund), and (ii) an “Affiliate” of a Solus Fund, shall include Solus, any Solus Fund, any of their respective Affiliates and any other Person that, at such time, directly or indirectly through one or more intermediaries, is controlled by, or is under common control with a Solus Fund (but not including limited partners or other investors in any such Solus Fund or any portfolio companies of such Solus Fund). The term “control” (including with correlative meanings, “controlled by” and “under common control with”) means possession, directly or indirectly, of power to direct or cause the direction of management or policies or the power to appoint and remove a majority of directors (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise);
 
(d)
A Person shall be deemed the “beneficial owner” of, and to have “beneficial ownership” of, and to “beneficially own” any security of which such Person has direct or indirect beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act);
 
(e)
“Board” means the board of directors of the Corporation;
 
(f)
“Change of Control” means the occurrence of an acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) of direct or indirect beneficial ownership of 50% or more of the then issued and outstanding Limited Voting Shares (including by way of sale, merger, amalgamation, arrangement, business combination, consolidation, reorganization or other similar transaction);
 
(g)
“Consideration” means the consideration that each holder of Limited Voting Shares is entitled to receive, or entitled to elect to receive, as the case may be, pursuant to an Exchange and Transfer and a Qualifying Purchase Agreement, as applicable;
 
(h)
“Corporation” means Concordia International Corp.;
 
(i)
“Debt” means, with respect to any Person at any time of determination, without duplication, (i) any obligations under any indebtedness for borrowed money (including all obligations for principal, interest premiums, penalties, fees, expenses, breakage costs and bank overdrafts thereunder), (ii) any indebtedness evidenced by any note, bond, debenture or other debt security, (iii) any commitment by which a Person assures a financial institution against loss (including reimbursement obligations with respect to drawn letters of credit), (iv) any off balance sheet financing, (v) all obligations under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a consolidated balance sheet of such Person and its Subsidiaries in accordance with IFRS, (vi) any payment obligations in respect of banker’s acceptances or drawn letters of credit, (vii) any mark-to-market value of swaps, collars, caps and similar hedging obligations, (viii) all obligations for the deferred and unpaid purchase price of property or services (other than trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice), (ix) any indebtedness referred to in clauses (i) through (viii) above of any other Person which is either guaranteed by, or secured by a lien upon such Person referred to in the lead in of this definition or any of its assets and (x) accrued and unpaid interest of any obligation under clauses (i) through (ix);
 
B-2

(j)
“Dollars” or “$” refers to U.S. dollars;
 
(k)
“Effective Date” means the date of the Articles of Arrangement providing for, among other things, the creation of the Class A Special Shares, the Class B Special Shares and the Class C Special Shares;
 
(l)
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder;
 
(m)
“Exchange and Transfer” means the Transfer by all holders of Limited Voting Shares to the Purchaser of Transferred Limited Voting Shares at the Exchange Time for the Consideration to effect a Change of Control in accordance with the terms of and subject to the conditions under the Qualifying Purchase Agreement and Section 6 of these articles;
 
(n)
“Exchange Time” means 8:00 a.m. (Toronto time) on the fifth (5th) Trading Day after all conditions to the completion of the Exchange and Transfer pursuant to the Qualifying Purchase Agreement have been satisfied or waived (other than conditions that can be and will be satisfied at the Exchange Time) or at such other time and/or such earlier or later date as the Corporation and the Purchaser may agree in writing in accordance with the terms of the Qualifying Purchase Agreement;
 
(o)
“Governmental Entity” means any government, regulatory authority, governmental department, agency, commission, bureau, official, minister. Crown corporation, court, board, tribunal or dispute settlement panel or other law, rule or regulation-making organization or entity: (a) having or purporting to have jurisdiction on behalf of any nation, province, territory or state or any other geographic or political subdivision of any of them; or (b) exercising, or entitled or purporting to exercise any administrative, executive, judicial, legislative, policy, regulatory or taxing authority or power;
 
(p)
“GSO” means GSO Capital Partners LP, a [•] limited partnership;
 
(q)
“GSO Fund” means any fund managed by or advised by GSO and/or its Affiliates;
 
B-3

(r)
“IFRS” means the International Financial Reporting Standards as issued by the International Accounting Standards Board at the relevant time;
 
(s)
“Independent Director” has the meaning set out in the Investor Rights Agreement;
 
(t)
“Investor Party” at any time means a holder of Limited Voting Shares (other than any holder of Class A Special Shares or Class B Special Shares and any of their respective Affiliates) party to the Investor Rights Agreement;
 
(u)
“Investor Rights Agreement” means the agreement dated as of the Effective Date among the Corporation and certain holders of Limited Voting Shares, as amended from time to time;
 
(v)
“issued and outstanding Limited Voting Shares” means, at any time, the number of Limited Voting Shares issued and outstanding as reflected on the share register of the Corporation;
 
(w)
“MI 61-101” means Multilateral Instrument 61-101 Protection of Minority Security Holders in Special Transactions, as the same exists or may hereafter be amended from time to time;
 
(x)
“Non-Receiving Substitute Plan Sponsor” means a Substitute Plan Sponsor that does not elect to become a Receiving Substitute Plan Sponsor pursuant to the Investor Rights Agreement;
 
(y)
“Objecting Substitute Plan Sponsor” means a Substitute Plan Sponsor that has objected in writing to a proposed Restricted Transaction pursuant to the Investor Rights Agreement;
 
(z)
“Person” means an individual, a corporation, a partnership, a limited liability company, organization, trustee, executor, administrator, a trust, an unincorporated association, a Governmental Entity or any agency, instrumentality or political subdivision of a Governmental Entity, or any other entity or body;
 
(aa)
“Purchaser” means the purchaser or purchasers, as applicable, of all the Transferred Limited Voting Shares pursuant to the Qualifying Purchase Agreement;
 
(bb)
“Qualifying Purchase Agreement” means an agreement between the Purchaser and the Corporation to effect a Change of Control (i) that would not require a majority of the minority vote of the holders of Limited Voting Shares under MI-61-101, other than a majority of the minority vote required as a result of (A) any senior officer receiving a collateral benefit and such senior officer beneficially owns less than ten percent (10%) of the issued and outstanding Limited Voting Shares or (B) a related party receiving a collateral benefit arising from the repayment of any Debt owed by the Corporation or any of its Subsidiaries to such party in accordance with its terms, (ii) which a majority of the Board, including at least one Independent Director, has approved as being in the best interests of the Corporation and fair to the holders of the Limited Voting Shares, and (iii) which has been approved by (A) the holders of a majority of the issued and outstanding Limited Voting Shares by written consent or (B) the majority of the votes cast in person or by proxy at a duly constituted meeting of the holders of Limited Voting Shares called to consider, and if deemed advisable, approve a Change of Control transaction contemplated by the Qualifying Purchase Agreement;
 
B-4

(cc)
“Receiving Substitute Plan Sponsor” means a Substitute Plan Sponsor that has given written notice to the Corporation requesting information relating to a proposed Restricted Transaction, pursuant to the terms of the Investor Rights Agreement;
 
(dd)
“Related Party Transaction” means a “related party transaction” as defined in MI 61-101;
 
(ee)
“Restricted Transaction” means any of the following actions by the Corporation or any of its Subsidiaries:
 
(i)
any transaction or series of related transactions resulting in the incurrence of any Debt after the Effective Date in excess of $100 million, other than any drawdown under the Revolving Facility;
 
(ii)
any settlement or appeal of any material Action, including, for greater certainty, any settlement or appeal of any Action arising out of or in connection with any UK Competition and Marketing Authority investigation relating to the Corporation or any of its Subsidiaries;
 
(iii)
any (i) purchase or acquisition, or (ii) sale, lease, transfer or divestiture, in each case through one transaction or a series of related transactions and whether by merger, consolidation, amalgamation, arrangement, business combination, recapitalization or otherwise, involving a value, proceeds or cost to the Corporation or its Subsidiaries in excess of $100 million (which for greater certainty shall not include any Change of Control or any internal reorganization solely among the Corporation and/or its Subsidiaries; or
 
(iv)
any agreement, understanding, contract or commitment to effect any of the foregoing;
 
(ff)
“Revolving Facility” means a revolving facility of the Corporation in place from time to time with a total outstanding principal amount not to exceed $250,000,000;
 
(gg)
“Solus” means Solus Alternative Asset Management LP;
 
(hh)
“Solus Fund” means any fund managed by or advised by Solus and/or its Affiliates;
 
B-5

(ii)
“Subsidiary” or “subsidiary” means, with respect to any Person, any corporation, limited liability company, joint venture or partnership of which such Person (a) beneficially owns, either directly or indirectly, more than fifty percent (50%) of (i) the total combined voting power of all classes of voting securities of such entity, (ii) the total combined equity interests of such entity, or (iii) the capital or profit interests, in the case of a partnership; or (b) otherwise has the power to vote, either directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body of such entity;
 
(jj)
“Tax” or “Taxes” means any and all national, federal, foreign, state, provincial or local income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, assets, real property, personal property, sales, use, transfer, registration, value added, alternative or add on, minimum, estimated or other tax of any kind whatsoever, including any interest, penalty or addition thereto, whether disputed or not;
 
(kk)
“Trading Day” means the day on which the principal Canadian or United States securities exchange (as determined by the Board) on which the Limited Voting Shares are listed or admitted to trading is open for the transaction of business;
 
(ll)
“Transfer” means, with respect to any security, any sale, assignment, transfer, loan, gift or any other disposition of such security (including (i) through any derivatives transaction which has the effect of transferring all or part of the economic benefits and/or risks of ownership of such security to another Person, or (ii) in connection with or pursuant to the foreclosure of, or other realization upon, any security interest, pledge, encumbrance, or hypothecation on such security), whether voluntarily or by operation of law, whether for consideration or for no consideration;
 
(mm)
“Transfer Agent” means the transfer agent for the Limited Voting Shares from time to time;
 
(nn)
“Transferred Limited Voting Shares” means, in respect of a holder of Limited Voting Shares, a number of such holder’s Limited Voting Shares to be Transferred pursuant to Section 6 as determined pursuant to the terms of the applicable Qualifying Purchase Agreement.
 
2.
Limited Voting Shares
 
The common shares of the Corporation are hereby redesignated as Limited Voting Shares. The Limited Voting Shares shall have attached thereto, as a class, the following rights, privileges, restrictions and conditions:
 
2.1
The holders of the Limited Voting Shares shall be entitled to one vote for each Limited Voting Share on all matters to be voted on at all meetings of shareholders of the Corporation, other than meetings at which only the holders of another class or series of shares are entitled to vote separately as a class or series.
 
B-6

2.2
The holders of the Limited Voting Shares shall be entitled to receive, on a ratable basis, any dividend declared by the Corporation in respect of the Limited Voting Shares.
 
2.3
Subject to the rights of the holders of any other class of shares of the Corporation ranking in priority to the Limited Voting Shares, the remaining property and assets of the Corporation available for distribution, after payment of liabilities, upon the voluntary or involuntary liquidation, dissolution or winding-up of the Corporation shall be distributed ratably among the holders of the Limited Voting Shares.
 
3.
Class A Special Shares
 
The Class A Special Shares shall have attached thereto, the following rights, privileges, restrictions and conditions:
 
3.1
In this Sections, solely for the purposes of calculating the aggregate beneficial ownership of Limited Voting Shares for the purposes of Sections 3.3, 3.10 and 3.13, the aggregate beneficial ownership of the holders of the Class A Special Shares shall include (without duplication) all Limited Voting Shares which are beneficially owned by all holders of Class A Special Shares and all of their Affiliates; provided that a holder of Class A Special Shares shall not be deemed to beneficially own Limited Voting Shares (i) over which GSO or any of its Affiliates exercises voting control pursuant to a voting trust, proxy or other similar agreement with a Person that is not an Affiliate of GSO or any GSO Fund, or (ii) which are owned by GSO or any GSO Fund but with respect to which all or part of the economic benefits and/or risks of ownership of such Limited Voting Shares are conferred to any Person (other than (x) any other GSO Fund or any of its Affiliates or (y) a limited partner of, or investor in, any GSO Fund in its capacity as such).
 
3.2
The holders of the Class A Special Shares shall be entitled to receive notice of, to attend and speak at any meeting of the holders of Limited Voting Shares. Notwithstanding the foregoing, the holders of the Class A Special Shares shall not be entitled either to vote their Class A Special Shares at any meeting of the holders of Limited Voting Shares or to consent in writing, other than:
 
(a)
in respect of the right of the holders of the Class A Special Shares to elect and remove Class A Directors in accordance with this Section 3; and
 
(b)
as a separate class (i) pursuant to the rights granted under the Act, or (ii) upon any proposed change to the number of directors pursuant to paragraph 173(l)(m) of the Act.
 
3.3
The holders of the Class A Special Shares shall be entitled to elect such number of directors of the Corporation (each a “Class A Director”, and collectively, the “Class A Directors”) as set forth below:
 
B-7

(a)
for so long as the holders of the Class A Special Shares beneficially own, in the aggregate, twenty four and nine-tenths percent (24.9%) or more of the issued and outstanding Limited Voting Shares, the holders of the Class A Special Shares shall be entitled to elect to the Board two (2) directors; and
 
(b)
for so long as the holders of the Class A Special Shares beneficially own, in the aggregate, less than twenty four and nine-tenths percent (24.9%) but not less than twelve and one half percent (12.5%) of the issued and outstanding Limited Voting Shares, the holders of the Class A Special Shares shall be entitled to elect to the Board one (1) director.
 
3.4
 
(a)
At least thirty-five (35) days prior to any meeting of the shareholders of the Corporation at which the holders of the Class A Special Shares shall be entitled to elect Class A Directors, the holders of a majority of the Class A Special Shares shall be entitled to submit to the Corporation in writing the nominee Class A Director or Class A Directors, as applicable, that the holders of the Class A Special Shares are entitled to elect pursuant to Sections 3.3 and 3.4. If the holders of a majority of the Class A Special Shares fail to submit to the Corporation the Class A Director nominee or nominees pursuant to the previous sentence, then the holders of the Class A Special Shares shall be deemed to have nominated the incumbent Class A Director or Class A Directors, as applicable, elected to the Board.
 
(b)
The election of the Class A Directors may be conducted by a resolution in writing signed by all the holders of the Class A Special Shares, to be effective on the date of the Corporation’s annual meeting of voting shareholders or on such other date as specified in such resolution, or at a meeting of the holders of the Class A Special Shares.
 
(c)
Each Class A Director elected pursuant to Sections 3.3 and 3.4 shall hold office until the next annual meeting of shareholders of the Corporation or until his or her removal or resignation in accordance with Sections 3.5 through 3.7.
 
3.5
Only the holders of the Class A Special Shares will be entitled to remove any Class A Director. The holders of the Class A Special Shares will be entitled at any time, subject to applicable law, to remove any one or more of the Class A Directors and to elect a successor Class A Director who will, promptly upon the removal of the applicable Class A Director, be appointed to the Board as a replacement Class A Director.
 
3.6
The removal of one or more Class A Directors by the holders of the Class A Special Shares may be conducted by a resolution in writing signed by all the holders of the Class A Special Shares, to be effective on the date specified in such resolution, or by the majority of the votes cast in person or by proxy at a duly constituted meeting of the holders of the Class A Special Shares.
 
B-8

3.7
If, as a result of death, disability, retirement, resignation, removal (with or without cause) or otherwise, there shall exist or occur any vacancy on the Board with respect to a Class A Director, or for any other reason there are at any time fewer Class A Directors serving on the Board than permitted pursuant to Section 3.3, the resulting vacancy shall be filled by an individual who shall be nominated and elected by the holders of the Class A Special Shares in accordance with Section 3.3. If at any time the holders of the Class A Special Shares cease to beneficially own, in the aggregate, the applicable percentage of issued and outstanding Limited Voting Shares set forth in Section 3.3, then the Class A Director or Class A Directors, as applicable, then in office with the shortest tenure as a director of the Corporation (or, if the holders of a majority of the Class A Special Shares provide written notice to the Corporation, the Class A Director or Directors specified in such notice) shall cease to qualify as a “Class A Director” and shall resign forthwith, and the vacancy or vacancies created by such resignation shall be filled by the vote of a majority of the members of the Board in office following such resignation.
 
3.8
No dividends shall be declared and/or paid by the Corporation on the Class A Special Shares.
 
3.9
Each Class A Special Share that is Transferred to any Person other than GSO or a GSO Fund or any of their respective Affiliates, shall be converted automatically upon such Transfer into one (1) Class C Special Share.
 
3.10
Subject to applicable law, including the Act, each Class A Special Share shall be redeemed by the Corporation for a redemption price of Cdn.$1.00 per share upon the earliest to occur of:
 
(a)
subject to compliance by the Corporation with Section 1 of the Investor Rights Agreement, upon the holders of the Class A Special Shares ceasing to beneficially own, in the aggregate, at least twelve and one half percent (12.5%) of the issued and outstanding Limited Voting Shares for thirty (30) consecutive days; or
 
(b)
the receipt by the Corporation of written demand by any holder of the Class A Special Shares with respect to the redemption of all or any portion of the Class A Special Shares held by such holder.
 
3.11
In the event of the liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, the holders of the Class A Special Shares shall be entitled to receive, before any distribution of any part of the property and assets of the Corporation among the holders of the Limited Voting Shares, and pari passu with the holders of Class B Special Shares, Cdn.$1.00 for each Class A Special Share. Except as provided in the foregoing sentence, the holders of Class A Special Shares shall not be entitled to participate in any other part of the property and assets of the Corporation in the event of the liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary.
 

1 Cross-reference to the pre-emptive rights provision of the IRA to be inserted.
 
B-9

3.12
Without the prior written consent of the holders of a majority of Class A Special Shares, the Corporation shall not, and shall cause its Subsidiaries not to, enter into any agreement or effect any transaction which could reasonably be expected to result in a material Tax liability for any holder of Class A Special Shares or any of such holder’s Affiliates that materially disproportionately affects such holder of Class A Special Shares or its Affiliates as compared to the Investor Parties.
 
3.13
 
(a)
At least twenty-five (25) days prior to effecting any Restricted Transaction, the Corporation shall deliver written notice in the form set forth in Appendix “A” (the “Initial Notice”) to each holder of Class A Special Shares and Class B Special Shares, if any, indicating its intent to effect a Restricted Transaction. If, within ten (10) days following delivery of the Initial Notice, one (1) or more holders of Class A Special Shares gives written notice to the Corporation requesting information relating to such proposed Restricted Transaction (each, a Receiving Class A Holder”), the Corporation shall promptly deliver written notice (the “Second Notice”) to all Receiving Class A Holders, which notice shall include all relevant information relating to the proposed Restricted Transaction. A Receiving Class A Holder that objects in writing to a proposed Restricted Transaction contemplated by the Second Notice within ten (10) days following delivery of the Second Notice is referred to herein as an “Objecting Class A Holder”. A holder of the Class A Special Shares that does not elect to become a Receiving Class A Holder following the delivery of the Initial Notice is hereafter referred to as a “Non-Receiving Class A Holder”. Notwithstanding the foregoing, any holder of Class A Special Shares may give written notice to the Corporation at any time to temporarily or permanently waive its right to receive the Initial Notice under this Section 3.13 and be automatically deemed to be a Non-Receiving Class A Holder.
 
(b)
The Corporation shall not, and shall cause its Subsidiaries not to, effect the proposed Restricted Transaction contemplated by the Second Notice if:
 
(i)
(A) the holders of the Class A Special Shares and the Class B Special Shares beneficially own, in the aggregate, at least thirty percent (30%) of the issued and outstanding Limited Voting Shares and (B) either (1) any Receiving Class A Holder is an Objecting Class A Holder, and (x) any Receiving Class B Holder is an Objecting Class B Holder, or (y) all of the Class B Holders are Non-Receiving Class B Holders, or (2) all of the Class A Holders are Non-Receiving Class A Holders, and any Receiving Class B Holder is an Objecting Class B Holder;
 
(ii)
(A) there are no Class B Special Shares issued and outstanding, (B) there is an Investor Party (collectively with its Affiliates, the “Substitute Plan Sponsors”) that, collectively with its Affiliates, beneficially owns (x) more Limited Voting Shares than any other Investor Party (collectively with such other Investor Party’s Affiliates) as of the date of the Initial Notice, (y) twelve and one half percent (12.5%) or more of the issued and outstanding Limited Voting Shares, and (z) collectively with the holders of the Class A Special Shares, at least thirty percent (30%) of the issued and outstanding Limited Voting Shares, and (C) either (1) any Receiving Class A Holder is an Objecting Class A Holder, and (x) any Receiving Substitute Plan Sponsor is an Objecting Substitute Plan Sponsor, or (y) all of the Substitute Plan Sponsors are Non-Receiving Substitute Plan Sponsors, or (2) all of the Class A Holders are Non-Receiving Class A Holders, and any Receiving Substitute Plan Sponsor is an Objecting Substitute Plan Sponsor; or
 
B-10

(iii)
(A) there are no Class B Special Shares issued and outstanding, (B) no Investor Party qualifies as a Substitute Plan Sponsor, (C) the holders of the Class A Special Shares beneficially own, in the aggregate, at least thirty percent (30%) of the issued and outstanding Limited Voting Shares, and (D) any Receiving Class A Holder is an Objecting Class A Holder.
 
(c)
If the Corporation or any of its Subsidiaries are not prevented from effecting a proposed Restricted Transaction pursuant to Section 3.13(b) or Section 4.13(b) (a “Permitted Restricted Transaction”), then the Corporation shall be entitled to consummate, or cause the consummation of, such Restricted Transaction (y) on terms, and subject to conditions, that are substantially the same as those disclosed in the Second Notice, and (z) no later than one hundred and twenty (120) days after the date that is ten (10) days following delivery of the Second Notice to the holders of Class A Special Shares and the Class B Special Shares (the “Closing Deadline”); provided, that, if (i) the terms or conditions of a Permitted Restricted Transaction are modified, altered, waived or amended such that they are not substantially the same as those disclosed in the Second Notice, or (ii) the Permitted Restricted Transaction is not consummated by the Closing Deadline, then such proposed Restricted Transaction shall no longer constitute a Permitted Restricted Transaction and the Corporation shall be required to deliver a new Initial Notice in respect of such proposed Restricted Transaction.
 
3.14
Notwithstanding anything to the contrary herein or under the Act, the Corporation shall not change the fixed number of seven (7) directors set forth herein or amend the rights, privileges, restrictions and conditions of the Class B Special Shares, or enter into any agreement, commitment, understanding or contract to effect any such change to the fixed number of directors set forth herein or amendment to the rights, privileges, restrictions and conditions of the Class B Special Shares, without the affirmative vote or consent of the holders of a majority of the Class A Special Shares.
 
4.
Class B Special Shares
 
The Class B Special Shares shall have attached thereto, the following rights, privileges, restrictions and conditions:
 
B-11

4.1
In this Section 4, solely for the purposes of calculating the aggregate beneficial ownership of Limited Voting Shares for the purposes of Sections 4.3, 4.10 and 4.13, the aggregate beneficial ownership of the holders of the Class B Special Shares shall include (without duplication) all Limited Voting Shares which are beneficially owned by all holders of Class B Special Shares and all of their Affiliates; provided that a holder of Class B Special Shares shall not be deemed to beneficially own Limited Voting Shares (i) over which Solus or any of its Affiliates exercises voting control pursuant to a voting trust, proxy or other similar agreement with a Person that is not an Affiliate of Solus or any Solus Fund, or (ii) which are owned by Solus or any Solus Fund but with respect to which all or part of the economic benefits and/or risks of ownership of such Limited Voting Shares are conferred to any Person (other than (x) any other Solus Fund or any of its Affiliates or (y) a limited partner of, or investor in, any Solus Fund in its capacity as such).
 
4.2
The holders of the Class B Special Shares shall be entitled to receive notice of, to attend and speak at any meeting of the holders of Limited Voting Shares. Notwithstanding the foregoing, the holders of the Class B Special Shares shall not be entitled either to vote their Class B Special Shares at any meeting of the holders of Limited Voting Shares or to consent in writing, other than:
 
(a)
in respect of the right of the holders of the Class B Special Shares to elect and remove Class A Directors in accordance with this Section 4; and
 
(b)
as a separate class (i) pursuant to the rights granted under the Act, or (ii) upon any proposed change to the number of directors pursuant to paragraph 173(1)(m) of the Act.
 
4.3
The holders of the Class B Special Shares shall be entitled to elect such number of directors of the Corporation (each a “Class B Director”, and collectively, the “Class B Directors”) as set forth below:
 
(a)
for so long as the holders of the Class B Special Shares beneficially own, in the aggregate, twenty four and nine-tenths percent (24.9%) or more of the issued and outstanding Limited Voting Shares, the holders of the Class B Special Shares shall be entitled to elect to the Board two (2) directors; and
 
(b)
for so long as the holders of the Class B Special Shares beneficially own, in the aggregate, less than twenty four and nine-tenths percent (24.9%) but not less than twelve and one half percent (12.5%) of the issued and outstanding Limited Voting Shares, the holders of the Class B Special Shares shall be entitled to elect to the Board one (1) director.
 
4.4
 
(a)
At least thirty-five (35) days prior to any meeting of the shareholders of the Corporation at which the holders of the Class B Special Shares shall be entitled to elect Class B Directors, the holders of a majority of the Class B Special Shares shall be entitled to submit to the Corporation in writing the nominee Class B Director or Class B Directors, as applicable, that the holders of the Class B Special Shares are entitled to elect pursuant to Sections 4.3 and 4.4. If the holders of a majority of the Class B Special Shares fail to submit to the Corporation the Class B Director nominee or nominees pursuant to the previous sentence, then the holders of the Class B Special Shares shall be deemed to have nominated the incumbent Class B Director or Class B Directors, as applicable, elected to the Board.
 
B-12

(b)
The election of the Class B Directors may be conducted by a resolution in writing signed by all the holders of the Class B Special Shares, to be effective on the date of the Corporation’s annual meeting of voting shareholders or on such other date as specified in such resolution, or at a meeting of the holders of the Class B Special Shares.
 
(c)
Each Class B Director elected pursuant to Sections 4.3 and 4.4 shall hold office until the next annual meeting of shareholders of the Corporation or until his or her removal or resignation in accordance with Sections 4.5 through 4.7.
 
4.5
Only the holders of the Class B Special Shares will be entitled to remove any Class B Director. The holders of the Class B Special Shares will be entitled at any time, subject to applicable law, to remove any one or more of the Class B Directors and to elect a successor Class B Director who will, promptly upon the removal of the applicable Class B Director, be appointed to the Board as a replacement Class B Director.
 
4.6
The removal of one or more Class B Directors by the holders of the Class B Special Shares may be conducted by a resolution in writing signed by all the holders of the Class B Special Shares, to be effective on the date specified in such resolution, or by the majority of the votes cast in person or by proxy at a duly constituted meeting of the holders of the Class B Special Shares.
 
4.7
If, as a result of death, disability, retirement, resignation, removal (with or without cause) or otherwise, there shall exist or occur any vacancy on the Board with respect to a Class B Director, or for any other reason there are at any time fewer Class B Directors serving on the Board than permitted pursuant to Section 4.3, the resulting vacancy shall be filled by an individual who shall be nominated and elected by the holders of the Class B Special Shares in accordance with Section 4.3. If at any time the holders of the Class B Special Shares cease to beneficially own, in the aggregate, the applicable percentage of issued and outstanding Limited Voting Shares set forth in Section 4.3, then the Class B Director or Class B Directors, as applicable, then in office with the shortest tenure as a director of the Corporation (or, if the holders of a majority of the Class B Special Shares provide written notice to the Corporation, the Class B Director or Directors specified in such notice) shall cease to qualify as a “Class B Director” and shall resign forthwith, and the vacancy or vacancies created by such resignation shall be filled by the vote of a majority of the members of the Board in office following such resignation.
 
4.8
No dividends shall be declared and/or paid by the Corporation on the Class B Special Shares.
 
4.9
Each Class B Special Share that is Transferred to any Person other than Solus or a Solus Fund or any of their respective Affiliates, shall be converted automatically upon such Transfer into one (1) Class C Special Share.
 
B-13

4.10
Subject to applicable law, including the Act, each Class B Special Share shall be redeemed by the Corporation for a redemption price of Cdn.$1.00 per share upon the earliest to occur of:
 
(a)
subject to compliance by the Corporation with Section 2 of the Investor Rights Agreement, upon the holders of the Class B Special Shares ceasing to beneficially own, in the aggregate, at least twelve and one half percent (12.5%) of the issued and outstanding Limited Voting Shares for thirty (30) consecutive days; or
 
(b)
the receipt by the Corporation of written demand by any holder of the Class B Special Shares with respect to the redemption of all or any portion of the Class B Special Shares held by such holder.
 
4.11
In the event of the liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, the holders of the Class B Special Shares shall be entitled to receive, before any distribution of any part of the property and assets of the Corporation among the holders of the Limited Voting Shares, and pari passu with the holders of Class A Special Shares, Cdn.$1.00 for each Class B Special Share. Except as provided in the foregoing sentence, the holders of Class B Special Shares shall not be entitled to participate in any other part of the property and assets of the Corporation in the event of the liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary.
 
4.12
Without the prior written consent of the holders of a majority of Class B Special Shares, the Corporation shall not, and shall cause its Subsidiaries not to, enter into any agreement or effect any transaction which could reasonably be expected to result in a material Tax liability for any holder of Class B Special Shares or any of such holder’s Affiliates that materially disproportionately affects such holder of Class B Special Shares or its Affiliates as compared to the Investor Parties.
 
4.13
 
(a)
At least twenty-five (25) days prior to effecting any Restricted Transaction, the Corporation shall deliver the Initial Notice to each holder of Class B Special Shares and Class A Special Shares, if any, indicating its intent to effect a Restricted Transaction. If, within ten (10) days following delivery of the Initial Notice, one (1) or more holders of Class B Special Shares gives written notice to the Corporation requesting information relating to such proposed Restricted Transaction (each, a Receiving Class B Holder”), the Corporation shall promptly deliver the Second Notice to all Receiving Class B Holders, which notice shall include all relevant information relating to the proposed Restricted Transaction. A Receiving Class B Holder that objects in writing to a proposed Restricted Transaction contemplated by the Second Notice within ten (10) days following delivery of the Second Notice is referred to herein as an “Objecting Class B Holder”. A holder of the Class B Special Shares that does not elect to become a Receiving Class B Holder following the delivery of the Initial Notice is hereafter referred to as a “Non-Receiving Class B Holder”. Notwithstanding the foregoing, any holder of Class B Special Shares may give written notice to the Corporation at any time to temporarily or permanently waive its right to receive the Initial Notice under this Section 4.13 and be automatically deemed to be a Non-Receiving Class B Holder.
 

2 Cross-reference to the pre-emptive rights provision of the IRA to be inserted.
 
B-14

(b)
The Corporation shall not, and shall cause its Subsidiaries not to, effect the proposed Restricted Transaction contemplated by the Second Notice if:
 
(i)
(A) the holders of the Class B Special Shares and the Class A Special Shares beneficially own, in the aggregate, at least thirty percent (30%) of the issued and outstanding Limited Voting Shares and (B) either (1) any Receiving Class B Holder is an Objecting Class B Holder, and (x) any Receiving Class A Holder is an Objecting Class A Holder, or (y) all of the Class A Holders are Non-Receiving Class A Holders, or (2) all of the Class B Holders are Non-Receiving Class B Holders, and any Receiving Class A Holder is an Objecting Class A Holder;
 
(ii)
(A) there are no Class A Special Shares issued and outstanding, (B) there is a Substitute Plan Sponsor that, collectively with its Affiliates, beneficially owns (x) more Limited Voting Shares than any other Investor Party (collectively with such other Investor Party’s Affiliates) as of the date of the Initial Notice, (y) twelve and one half percent (12.5%) or more of the issued and outstanding Limited Voting Shares, and (z) collectively with the holders of the Class B Special Shares, at least thirty percent (30%) of the issued and outstanding Limited Voting Shares, and (C) either (1) any Receiving Class B Holder is an Objecting Class B Holder, and (x) any Receiving Substitute Plan Sponsor is an Objecting Substitute Plan Sponsor, or (y) all of the Substitute Plan Sponsors are Non-Receiving Substitute Plan Sponsors, or (2) all of the Class B Holders are Non-Receiving Class B Holders, and any Receiving Substitute Plan Sponsor is an Objecting Substitute Plan Sponsor; or
 
(iii)
(A) there are no Class A Special Shares issued and outstanding, (B) no Investor Party qualifies as a Substitute Plan Sponsor, (C) the holders of the Class B Special Shares beneficially own, in the aggregate, at least thirty percent (30%) of the issued and outstanding Limited Voting Shares, and (D) any Receiving Class B Holder is an Objecting Class B Holder.
 
(c)
If the Corporation or any of its Subsidiaries are not prevented from effecting a Permitted Restricted Transaction, then the Corporation shall be entitled to consummate, or cause the consummation of, such Restricted Transaction (y) on terms, and subject to conditions, that are substantially the same as those disclosed in the Second Notice, and (z) no later than the Closing Deadline; provided, that, if (i) the terms or conditions of a Permitted Restricted Transaction are modified, altered, waived or amended such that they are not substantially the same as those disclosed in the Second Notice, or (ii) the Permitted Restricted Transaction is not consummated by the Closing Deadline, then such proposed Restricted Transaction shall no longer constitute a Permitted Restricted Transaction and the Corporation shall be required to deliver a new Initial Notice in respect of such proposed Restricted Transaction.
 
B-15

Notwithstanding anything to the contrary herein or under the Act, the Corporation shall not change the fixed number of seven (7) directors set forth herein or amend the rights, privileges, restrictions and conditions of the Class A Special Shares, or enter into any agreement, commitment, understanding or contract to effect any such change to the fixed number of directors set forth herein or amendment to the rights, privileges, restrictions and conditions of the Class A Special Shares, without the affirmative vote or consent of the holders of a majority of the Class B Special Shares.
 
5.
Class C Special Shares
 
The Class C Special Shares shall have attached thereto the following rights, privileges, restrictions and conditions:
 
5.1
The holders of the Class C Special Shares shall be entitled to receive notice of, to attend and speak at any meeting of the shareholders of the Corporation. Notwithstanding anything to the contrary, the holders of the Class C Special Shares shall not be entitled to vote at any meeting of the Corporation or to sign a resolution in writing, other than pursuant to the rights granted under the Act.
 
5.2
No dividends shall be declared and/or paid by the Corporation on the Class C Special Shares.
 
5.3
Subject to applicable laws, including the Act, each Class C Special Share shall be automatically redeemed by the Corporation for a redemption price of $1.00 per share on the first (1st) Trading Day following the issuance of such share.
 
5.4
In the event of the liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, the holder of the Class C Special Shares shall not be entitled to receive any part of the property and assets of the Corporation.
 
6.
Change of Control
 
6.1
The Corporation shall, at any time, be entitled to effect a Change of Control pursuant to a Qualifying Purchase Agreement, subject to the applicable terms of this Section 6.
 
B-16

6.2
Exchange and Transfer
 
At the Exchange Time, upon the delivery to the Transfer Agent of a joint notice of transfer signed by the Corporation and the Purchaser in the form set forth in Appendix “B”, each holder of Transferred Limited Voting Shares (other than the Purchaser, to the extent applicable) immediately prior to the Exchange Time shall transfer, and shall be deemed to have transferred, to the Purchaser, all of such person’s right, title and interest in and to the Transferred Limited Voting Shares and the Purchaser shall acquire, and shall be deemed to have acquired, from each such holder of Transferred Limited Voting Shares all, but not less than all, of the Transferred Limited Voting Shares held by each such holder (which transfer and acquisition are referred to herein as an “Exchange and Transfer”) and, at the Exchange Time, each holder of Transferred Limited Voting Shares immediately prior to the Exchange Time shall cease to be a holder of its Transferred Limited Voting Shares and shall not be entitled to exercise any of the rights of a holder of Transferred Limited Voting Shares in respect of the Transferred Limited Voting Shares other than the right to receive the Consideration for the Transferred Limited Voting Shares and the holders of the Transferred Limited Voting Shares immediately prior to the Exchange Time shall not be entitled as such thereafter to receive notice of or to attend any meeting of shareholders of the Corporation in respect of such Transferred Limited Voting Shares and the Purchaser (or as the Purchaser may direct) shall be entered on the share register of the Corporation as the holder of all outstanding Transferred Limited Voting Shares. The Purchaser shall, at or prior to the Exchange Time, deposit with or otherwise cause to be deposited with the Transfer Agent of the Corporation the Consideration and at the Exchange Time, such deposit shall constitute a full and complete discharge of the Purchaser’s obligation to pay the Consideration to the holders of the Transferred Limited Voting Shares. On and after the Exchange Time, any such money, securities or other consideration deposited with the Transfer Agent shall be held by the Transfer Agent as agent for the holders of the Transferred Limited Voting Shares immediately before the Exchange Time and receipt of such payment shall be deemed to constitute receipt of payment of the Consideration by all holders of Transferred Limited Voting Shares immediately prior to the Exchange Time. All interest on funds provided to and held by the Transfer Agent shall accrue for the benefit of the Purchaser. For the avoidance of doubt, no dissent rights shall be available to any holder of Transferred Limited Voting Shares if the Exchange and Transfer occurs pursuant to the provisions of this Section 6.2.
 
6.3
Delivery of Consideration
 
The holders of the Limited Voting Shares transferred pursuant to the Exchange and Transfer shall be entitled to receive the Consideration, without interest, for each Limited Voting Share so transferred, (i) on presentation and surrender of the certificate or certificates representing all Limited Voting Shares held by such holder (or, in respect of any such certificate or certificates which have been lost, destroyed or wrongfully taken, an indemnity bond together with an affidavit confirming ownership, each in a form satisfactory to the Purchaser, acting reasonably) or any other evidence of ownership, with respect to the Limited Voting Shares which is satisfactory to the Purchaser, acting reasonably, and (ii) on presentation of a fully completed and duly executed letter of transmittal in a form acceptable to the Purchaser and the Transfer Agent, acting reasonably. Should any holder of any Limited Voting Shares transferred pursuant to the Exchange and Transfer fail to present and surrender the above mentioned documentation, or other consideration the Purchaser shall have the right, after three years from the Exchange Time, to have all remaining funds or other consideration deposited with the Transfer Agent returned to the Purchaser and the Purchaser shall thereafter be responsible for payment of the consideration to any former holder of a Limited Voting Share upon presentation and surrender of such documentation as the Purchaser may require.
 
B-17

APPENDIX A

NOTICE OF RESTRICTED TRANSACTION

TO:
[Holder of Class A/B Special Shares] (the Shareholder”)
 
[insert address]
   
FROM:
Concordia International Corp. (the Corporation”)
 
[insert address]
   
DATE:
[insert date]

All capitalized terms in this notice that are not defined herein have the meaning ascribed to such terms in the articles of Concordia International Corp.
 
In accordance with the articles of the Corporation, the Corporation hereby informs the Shareholder that the Corporation is considering effecting a Restricted Transaction.
 
The Shareholder may, within ten (10) days following delivery of this notice, give written notice to the Corporation requesting information relating to such proposed Restricted Transaction in order to exercise the Shareholder’s rights under [Section 3.13] [Section 4.13] of the articles of the Corporation.
 
 
CONCORDIA INTERNATIONAL CORP.
       
 
Per:
 
   
Name:
[]
   
Title:
[]
 
B-18

APPENDIX B
 
TRANSFER NOTICE

TO:
[Transfer Agent]
 
[insert address]
   
COPY TO:
[insert address]
   
FROM:
Concordia International Corp. and [The Purchaser]
   
DATE:
[insert date]

All capitalized terms in this Transfer Notice that are not defined herein have the meaning ascribed to such terms in the articles of Concordia International Corp.
 
In accordance with the share provisions attaching to the Limited Voting Shares, Concordia International Corp. and [the Purchaser] hereby gives notice to  [Transfer Agent] of the Exchange and Transfer.
 
 
CONCORDIA INTERNATIONAL CORP.
       
 
Per:
 
   
Name:
[]
   
Title:
[]
       
 
[THE PURCHASER]
       
 
Per:
   
Name:
[]
   
Title:
[]

Date on which this Transfer Notice is delivered to [] Trust Company:

   

Time on the Transfer Date this Transfer Notice is delivered to [] Trust Company:

   
 
B-19

IN THE MATTER OF AN APPLICATION UNDER SECTION 192 OF THE CANADA
BUSINESS CORPORATIONS ACT, R.S.C. 1985, C. C-44, AS AMENDED, AND RULES
14.05(2) AND 14.05(3) OF THE RULES OF CIVIL PROCEDURE
 
AND IN THE MATTER OF A PROPOSED ARRANGEMENT OF CONCORDIA
INTERNATIONAL CORP. AND CONCORDIA HEALTHCARE (CANADA) LIMITED
 
Court File No: CV-17-584836-00CL
     
   
ONTARIO
SUPERIOR COURT OF JUSTICE-
COMMERCIAL LIST
 
Proceeding commenced at Toronto
     
     
   
FINAL ORDER
     
     
   
Goodmans LLP
Barristers & Solicitors
333 Bay Street, Suite 3400
Toronto, Canada M5H 2S7
     
   
Robert J. Chadwick LSO#: 35165K
   
   
Brendan O’Neill LSO#:43331J
   
   
Caroline Descours LSO#: 58251A
   
   
Ryan Baulke LSO#: 661890
   
   
Loren Cohen LSO#: 73473L
   
     
   
Tel: (416) 979-2211
   
Fax: (416) 979-1234
     
   
Lawyers for the Applicants
 
 


Exhibit T3F
CROSS-REFERENCE TABLE

Between the Trust Indenture Act of 1939, as amended, and the Indenture

Trust Indenture Act Section
Indenture Section(s)
310(a)(1)
7.10
(a)(2)
7.10
(a)(3)
N.A.
(a)(4)
N.A.
(a)(5)
7.10
(b)
7.03
(c)
N.A.
311(a)
7.11
(b)
7.11
(c)
N.A.
312(a)
2.05
(b)
13.02
(c)
N.A.
313(a)
7.06
(b)(1)
7.06
(b)(2)
7.06
(c)
7.05, 13.01
(d)
7.06
314(a)
4.03
(b)
N.A.
(c)(1)
13.03
(c)(2)
13.03
(c)(3)
N.A.
(d)
N.A.
(e)
13.04
(f)
N.A.
315(a)
7.01, 7.02
(b)
7.05
(c)
7.01
(d)
7.01
(e)
6.14
316(a)(1)(A)
6.05
(a)(1)(B)
6.04
(a)(2)
9.02
(b)
6.06, 6.07
(c)
9.03
317(a)(1)
6.08
(a)(2)
6.12
(b)
2.04
318(a)
7.02


Exhibit 25.1 
 
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549
 


FORM T-1

STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
 


      CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b) (2)

GLAS TRUST COMPANY LLC
(Exact name of trustee as specified in its charter)

A New Hampshire Limited Liability Company
 
81-4468886
(Jurisdiction of incorporation or organization if not a U.S. national bank)
 
(I.R.S. Employer Identification No.)

3 Second Street, Suite 206, Jersey City, New Jersey
 
07311
(Address of principal executive offices)
 
(Zip code)

GLAS AMERICAS LLC
3 Second Street, Suite 206
Jersey City, New Jersey 07311
(201) 839-2181
(Name, address and telephone number of agent for service)
 


Concordia International Corp.
(Exact name of obligor as specified in its charter)

Ontario
   
(State or other jurisdiction of incorporation or organization)
 
(I.R.S. Employer Identification No.)

5770 Hurontario Street, Suite 310 Mississauga, Ontario
 
L5R 3G5
(Address of principal executive offices)
 
(Zip code)
 

8.000% First Lien Senior Secured Notes due 2024
(Title of the indenture securities)
 


The following is a list of the affiliates of Concordia International Corp, a corporation continued under the laws of Canada (the “Issuer”), as of June 28, 2018:

 
Name
 
Place of incorporation
 
Percentage of voting
securities owned
 
Abcur AB
(Company No: 556701-3957)
 
Sweden
 
100%
 
ABM Pharma Limited
(Registered No: 1647329)
 
New Zealand
 
100%
 
AMCo (Germany) GmbH
(Registered No: HRB133043)
 
Germany
 
100%
 
Amdipharm AG
(Registered No: CH270.3.013.095-5)
 
Switzerland
 
100%
 
Amdipharm BV
(Registered No: 24341987)
 
Netherlands
 
100%
 
Amdipharm Coöperatief U.A.
(Registered No: 51903512)
 
Netherlands
 
99%
 
Amdipharm Holdings, S.á R.L.
(Registered No: B105086)
 
Luxembourg
 
100%
 
Amdipharm Limited
(Registered No: 364596)
 
Ireland
 
100%
 
Amdipharm Marketing Limited
(Registered No: 6062056)
 
United Kingdom
 
100%
 
Amdipharm Mercury (Australia) Pty Limited
(Company No: 118106684 (ACN))
 
Australia
 
100%
 
Amdipharm Mercury Holdco UK Ltd
(Company No: 08189816)
 
United Kingdom
 
100%
 
Amdipharm Mercury (Hong Kong) Limited
(Company No: 662544)
 
Hong Kong
 
99%
 
Amdipharm Mercury International Limited
(Registered No: 88638)
 
New Jersey
 
100%
 
Amdipharm Mercury Midco UK Ltd
(Company No: 08177295)
 
United Kingdom
 
100%
 
Amdipharm Mercury UK Ltd
(Company No: 08169596)
 
United Kingdom
 
100%
 
Amdipharm Sales and Marketing Limited
(Registered No: 88737)
 
New Jersey
 
100%
 
Amdipharm UK Limited
(Registered No: 04606340)
 
United Kingdom
 
100%
 
Boucher & Muir (New Zealand) Limited
(Registered No: 1771492)
 
New Zealand
 
100%
 
Boucher & Muir (PNG) Pty Limited
(Registered No: 1-30858)
 
Papua New Guinea
 
100%
 

 
Boucher & Muir Pty Limited
(Registered No: 000140474)
 
Australia
 
100%
 
Canberra Analytical Laboratories Pty Limited
(Registered No: 060976909)
 
Australia
 
100%
 
Concordia Healthcare (Canada) Limited
(Business No: 10441996)
 
Canada
 
100%
 
Concordia Holdings (Jersey) Limited
(Registered No: 119695)
 
New Jersey
 
100%
 
Concordia International (Australia) Pty Limited (fka Boucher & Muir (Holdings) Pty Limited)
(Registered No: 000688237)
 
Australia
 
100%
 
Concordia International (France), S.á R.L. (fka AMCo France S.á R.L.)
(Registered No: 810 882 514 R.C.S. Nanterre)
 
France
 
100%
 
Concordia International (India) Services Private Limited (fka Amdipharm Mercury Services Private Limited)
(Company No: U74990MH1999FTC120396 fka 11-120396)
 
India
 
99.98%
 
Concordia International (Italy), S.R.L. (fka AMCo (Italy), S.R.L.)
(Registered No: 2055279)
 
Italy
 
100%
 
Concordia International (Netherlands) B.V. (fka Amdipharm International B.V.)
(Registered No: 51903792)
 
Netherlands
 
100%
 
Concordia International Rx (Ireland) Limited (fka Mercury Pharma Overseas Limited )*
(Company No: 43819)
 
Ireland
 
100%
 
Concordia International Rx (UK) Limited (fka Amdipharm Mercury Company Limited)
(Company No: 04678629)
 
United Kingdom
 
100%
 
Concordia Investment Holdings (UK) Limited
(Registered No: 09821116)
 
United Kingdom
 
100%
 
Concordia Investments (Jersey) Limited
(Registered No: 119697)
 
New Jersey
 
100%
 
Concordia Labs Inc.
(Registered No: 5370963)
 
United States
 
100%
 
Concordia Laboratories Inc., S.á R.L.
(Registered No: B200376)
 
Luxembourg
 
100%
 
Concordia Pharma (RSA) Pty Limited (fka Amdipharm Mercury RSA Pty Limited)
(Registered No: 2014/155659/07)
 
South Africa
 
100%
 
Concordia Pharmaceuticals Inc., S.á R.L.
(Registered No: B200344)
 
Luxembourg
 
100%
 
Concordia Pharmaceuticals (US) Inc. (fka Concordia Healthcare USA Inc.)
(Registered No: 5319733)
 
United States
 
100%
 

 
Emerge Medical Pty Limited
(Registered No: 090908517)
 
Australia
 
100%
 
Focus Pharmaceuticals Limited
(Company No: 04522142)
 
United Kingdom
 
100%
 
Focus Pharma Holdings Limited
(Company No: 06317129)
 
United Kingdom
 
 
100%
 
Goldshield Healthcare Private Limited
(Company No: 11-147317)
 
India
 
99.99%
 
Mercury Pharma (Generics) Limited
(Company No: 02760679)
 
United Kingdom
 
100%
 
Mercury Pharma Group Ltd
(Company No: 02330913)
 
United Kingdom
 
100%
 
Mercury Pharma International Limited *
(Company No: 20440)
 
Ireland
 
100%
 
Mercury Pharmaceuticals (Ireland) Limited*
(Company No: 325288)
 
Ireland
 
100%
 
Mercury Pharmaceuticals Ltd
(Company No: 02619880)
 
United Kingdom
 
100%
 
Mercurypharm Limited
(Company No: 241807)
 
Ireland
 
100%
 
Midas Bidco Ltd
(Company No: 06883921)
 
United Kingdom
 
100%
 
Pinnacle Biologics B.V.
(Registered No: 34291517)
 
Netherlands
 
100%
 
Pinnacle Biologics, Inc.
(Registered No: 4470877)
 
United States
 
100%
 
Pinnacle Biopharma India Private Limited
(Registered No: 24100MH2013PTC242310)
 
India
 
99%
 
Primegen Limited
(Registered No: 09129663)
 
United Kingdom
 
100%
 
Southpac Healthcare Ltd
(Registered No: 14775)
 
Papua New Guinea
 
50%
 
Concordia Financing (Jersey) Limited
(Registered No: 119696)
 
Jersey
 
100%
 

Item 1.
General Information.  Furnish the following information as to the trustee:

(a)
Name and address of each examining or supervising authority to which it is subject.

Comptroller of the Currency
Treasury Department
Washington, D.C.

Federal Deposit Insurance Corporation
Washington, D.C.

Federal Reserve Bank of San Francisco
San Francisco, California 94120

(b)
Whether it is authorized to exercise corporate trust powers.

The trustee is authorized to exercise corporate trust powers.

Item 2.
Affiliations with Obligor.  If the obligor is an affiliate of the trustee, describe each such affiliation.

None with respect to the trustee.

No responses are included for Items 3-14 of this Form T-1 because the obligor is not in default as provided under Item 13.

Item 15. Foreign Trustee. Not applicable.

Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility.

Exhibit 1.
A copy of the Limited Liability Company Agreement of the trustee now in effect. *

Exhibit 2.
A copy of the State of New Hampshire – Office of the Bank Commissioner Certificate to Conduct Business for GLAS TRUST COMPANY LLC, dated February 23, 2017 *

Exhibit 3.
A copy of the State of New Hampshire Certificate to Exercise Corporate Trust Powers for GLAS TRUST COMPANY LLC, dtd. February 12, 2016. *

Exhibit 4.
Copy of By-laws of the trustee as now in effect. *

Exhibit 5.
Not applicable.

Exhibit 6.
The consent of the trustee required by Section 321(b) of the Act.

Exhibit 7.
A copy of the latest State of New Hampshire Call Report with Attestation of the trustee published pursuant to law or the requirements of its supervising or examining authority.

Exhibit 8.
Not applicable.

Exhibit 9.
Not applicable.
 
*  Incorporated by reference to the exhibit of the same number to the trustee’s Form T-1 filed as exhibit to the Filing T-3 dated March 23, 2018 of file number 022-29054
 

SIGNATURE
 
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, GLAS Trust Company LLC , a New Hampshire Limited Liability Company organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York on the 05 day of July 2018.

 
GLAS TRUST COMPANY LLC
 
     
 
/s/ Martin Reed
 
 
Martin Reed
 
 
Vice President
 
 

EXHIBIT 6

July 5, 2018

Securities and Exchange Commission
Washington, D.C.  20549

Gentlemen:

In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the undersigned hereby consents that reports of examination of the undersigned made by Federal, State, Territorial, or District authorities authorized to make such examination may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.

 
Very truly yours,
 
     
 
GLAS TRUST COMPANY LLC
 
     
 
/s/ Martin Reed
 
 
Martin Reed
 
 
Vice President
 
 

EXHIBIT 6
CONSENT OF THE TRUSTEE
REQUIRED BY SECTION 321(b) OF THE ACT
July 5, 2018

Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:

In connection with the qualification of an indenture for senior indebtedness between GVC Holdings PLC (the “Company”) and GLAS TRUST COMPANY LLC (the “Trustee”), the undersigned, in accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that reports of examinations of the undersigned by federal, state, territorial, or district authorities authorized to make such examinations may be furnished by such authorities to the Securities and Exchange Commission upon request therefor.
Sincerely,
 
GLAS TRUST COMPANY LLC
 
By:
/s/ Martin Reed
 
 
Vice President
 

EXHIBIT 7
 
 
Instructions:
Quarter Ending:                    
 
This worksheet replaces the FFIEC 041 Report filing for Non-Depository Trust Companies

Please do not change the formatting, location of cells, or add calculations to the cells.  The Department will be merging the information into a database and these changes will inhibit our ability to import the file.

The worksheets found in the excel file are based on the FFIEC 041 report.  When filling out the forms please follow the instructions found at http://www.fdic.gov/regulations/resources/call/index.html.  All New Hampshire non-depository trust companies must file quarterly.  Disregard any instructions that state or imply quarterly filing is not necessary.  When completing the call report, all dollar amounts should be rounded to thousands.

The “Attestation” worksheet needs to be printed off and signed as detailed on the worksheet.  After the necessary signatures are gathered the form needs to be mailed to the department.  This needs to be received no later than 32 days after the quarter end.

The Department is requesting additional information to be reported quarterly on Call Report Schedule RC-T for those institutions or their subsidiaries offering fiduciary and related services.  This change will begin with the September 30, 2008 filing period.  Please be aware that this particular Call Report schedule will differ from the FFIEC forms & instructions given the presence of two additional reporting items in the Memoranda section of Schedule RC-T.  New reporting will include the following: 1) Accounts where the institution is named or serves as a fiduciary of an account to be funded at a later date (“dry trusts”), and 2) Accounts where the institution is named or serves as “Trust Protector”.

Information:

Name of Institution:
GLAS Trust Company LLC
Filing Period (Quarter ending):
31-Mar-18
Date Report was emailed:
30-Apr

Information on person to contact with question on this call report filing

 
Primary Contact
 
Secondary Contact
Name:
Brian Carne
 
Dan Fisher
Phone Number:
+44 20 3764 9320
 
(212) 808 3050
E-Mail Address:
 

USA PATRIOT ACT Section 314(a) Anti-Money Laundering Contact Information:

To facilitate the 314(a) process, you will need to provide the following information for two (2) individuals who will serve as the Point of Contact (POC) for your institution.  Any changes to the POCs will need to be reported in writing to the New Hampshire Banking Department.

 
Primary Contact
 
Secondary Contact
POC Name:
Brian Carne
 
Dan Fisher
POC Title:
Chairman
 
Secretary
Mailing Address:
45 Ludgate Hill
 
3 Second Street, Suite 206
Street
PO Box
 
 
 
City, State, Zip
London, EC4M 7JU, UK
 
Jersey City, NJ
Email Address:
 
Phone Number:
+44 20 3764 9320
 
(201) 839-2181
 
 
 
 
 

 
Attestation
Quarter Ending:    March 31, 2018  
 
This report is required by RSA 383:13

Name of Institution:
GLAS Trust Company LLC
 
Date report was sent electronically to the New Hampshire Banking Department: 30-
Apr-18

Information in the report is for Quarter Ending: 31
March 2018
 
NOTE:  The report must be signed by an authorized officer and attested to by not less than two directors (trustees).
 
I, 
Daniel R. Fisher, Executive Vice President/ Corporate Secretary
Typed Name and Title of Officer Authorized to Sign Report
 
of the named bank do hereby declare that the report sent electronically to the New Hampshire Banking Department has been prepared in conformance with the instructions issued by the FFIEC and are true to the best of my knowledge and belief.
 
/s/ Daniel Fisher  
27-Apr-18
Signature of Officer Authorized to Sign Report
Date of Signature
 
We, the undersigned directors (trustees), attest to the correctness of the report sent electronically to the New Hampshire Banking Department and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instruction issued by the FFIEC and is true and correct.
 
   
Stuart Draper
Signature of Director (Trustee)
 
Printed Name of Director (Trustee)

 
/s/ Daniel Fisher  
Daniel Fisher
Signature of Director (Trustee)
 
Printed Name of Director (Trustee)
 
 
     
Signature of Director (Trustee)
 
Printed Name of Director (Trustee)
 
The signed “Attestation” needs to be received by the department no later than 32 days after the quarter end.
 

  Schedule RI -- Income Statement Quarter Ending:                      
 
 
All Report of Income schedules are to be entered on a calendar year-to-date basis in thousands of dollars.
       
1
Interest Income:
   
1. a.
Interest and fee income on loans:
 
 
(1)
Loans secured by real estate
 
 
(2)
Commercial and industrial loans
 
 
(3)
Loans to individuals for household, family, and other personal expenditures:
 
 
 
(a) Credit cards
 
 
 
(b) Other (includes single payment, installment, all student loans, and revolving credit plans other than credit cards)
 
 
(4)
Loans to foreign governments and official institutions
 
 
(5)
All other loans
 
 
(6)
Total interest and fee income on loans (sum of items 1.a.(1) through 1.a.(5))
 
 
1. b.
Income from lease financing receivables
 
 
1. c.
Interest income on balances due from depository institutions
2
 
1. d.
Interest and dividend income on securities
 
 
(1)
U.S. Treasury securities and U.S. Government agency obligations (excluding mortgage-backed securities)
 
 
(2)
Mortgage-backed securities
 
 
(3)
All other securities (includes securities issued by states and political subdivisions in the U.S.)
 
 
1. e.
Interest income from trading assets
 
 
1. f.
Interest income on federal funds sold and securities purchased under agreements to resell
 
 
1. g.
Other interest income
 
 
1. h.
Total interest income (sum of items 1.a.(6) through 1.g)
 
2
2.
Interest expense:
 
 
2. a.
Interest on deposits:
 
 
(1)
Transaction accounts (interest-bearing demand deposits, NOW accounts, ATS accounts, and telephone and preauthorized transfer accounts)
 
 
(2)
Nontransaction accounts:
 
 
 
(a) Savings deposits (includes MMDAs)
 
 
 
(b) Time deposits of $100,000 or more
 
 
 
(c) Time deposits of less than $100,000
 
 
2. b.
Expense of federal funds purchased and securities sold under agreements to repurchase
 
 
2. c.
Interest on trading liabilities and other borrowed money
 
 
2. d.
Interest on subordinated notes and debentures
 
 
2. e.
Total interest expense (sum of items 2. a though 2. d)
 
 
3.
Net interest income (item 1.h minus 2.e)
 
2
4.
Provision for loan and lease losses
 
 
5.
Noninterest income:
 
 
5. a.
Income from fiduciary activities
54
 
5. b.
Service charges on deposit accounts
 
 
5. c.
Trading revenue
 
 
5. d. (1)
Fees and commissions from securities brokerage
 
 
(2)
Investment banking, advisory, and underwriting fees and commissions
 
 
(3)
Fees and commissions from annuity sales
 
 
(4)
Underwriting income from insurance and reinsurance activities
 
 
(5)
Income from other insurance activities
 
 
5. e.
Venture capital revenue
 
 
5. f.
Net servicing fees
 
 
5. g.
Net securitization income
 
 
5. h.
Not applicable
 
 
5. i.
Net gains (losses) on sales of loans and leases
 
 
5. j.
Net gains (losses) on sales of other real estate owned
 
 
5. k.
Net gains (losses) on sales of other assets (excluding securities)
 
 
5. l.
Other noninterest income*
 
 
5. m.
Total noninterest income (sum of items 5.a though 5.l)
 
54
6. a.
Realized gains (losses) on held-to-maturity securities
 
 
6. b.
Realized gains (losses) on available-for-sale securities
 
 
7.
Noninterest expense:
 
 
7. a.
Salaries and employee benefits
 
 
7. b.
Expenses of premises and fixed assets (net of rental income) (excluding salaries and employee benefits and mortgage interest)
 
 
7. c.
(1) Goodwill impairment losses
 
 
 
(2) Amortization expense and impairment losses for other intangible assets
 
 
7. d.
Other noninterest expense*
52
 
7. e.
Total noninterest expense (sum of items 7.a though 7.d)
 
52
8.
Income (loss) before income taxes and extraordinary items and other adjustments (item 3 plus or minus items 4, 5.m, 6.a, 6.b and 7.e)
 
4
9.
Applicable income taxes (on item 8)
 
 
10.
Income (loss) before extraordinary items and  other adjustments (item 8 minus item 9)
 
4
11.
Extraordinary items and other adjustments, net of income taxes*
 
 
12.
Net income (loss) attributable to bank and noncontrolling (minority) interests (sum of items 10 and 11)
 
4
13.
LESS: Net income (loss) attributable to noncontrolling (minority) interests (if net income, report as a positive value; if net loss, report as a negative value)
 
 
14.
Net income (loss) attributable to bank (item 12 minus item 13)
 
4
     
 
* Describe on Schedule RI-E - Explanations
   
 

  Schedule RI - Continued  Quarter Ending:                      
 
       
 
All Report of Income schedules are to be entered on a calendar year-to-date basis in thousands of dollars.
       
 
Memoranda
   
       
14.
Other-than-temporary impairment losses on held-to-maturity and available-for-sale
 
debt securities:
   
a.
Total other-than-temporary impairment losses
   
b.
Portion of losses recognized in other comprehensive income (before income taxes)
   
c.
Net impairment losses recognized in earnings (included in Schedule RI, items 6.a
   
 
and 6.b)(Memorandum item 14.a minus Memorandum item 14.b)
   
       
 
*Memoranda Items 1-13 Omitted
   
 

  Schedule RI-A --  Changes in Equity Capital Quarter Ending:                      
 
 
Indicate decreases and losses in parentheses.                                                                                  Dollar Amounts in Thousands
1.
Total equity capital most recently reported for the previous year end, Reports of Condition and Income (i.e., after adjustments from amended Reports of Income)
1,503
2.
Restatements due to corrections of material accounting errors and changes in accounting principles*
 
3.
Balance end of previous calendar year as restated (sum of items 1 and 2)
1,503
4.
Net income (loss) (must equal Schedule RI, item 14)
4
5.
Sale, conversion, acquisition, or retirement of capital stock, net (excluding treasury stock transactions)
 
6.
Treasury stock transactions, net
 
7.
Changes incident to business combinations, net
 
8.
LESS: Cash dividends declared on preferred stock
 
9.
LESS: Cash dividends declared on common stock
 
10.
Other comprehensive income
 
11.
Other transactions with parent holding company* (not included in items 5, 6, 8, or 9 above)
 
12.
Total equity capital end of current period (sum of items 3 through 11) (must equal Schedule RC, item 27.a)
1,507
     
*
Describe on Schedule RI-E-Explanations
 
 

   Schedule RI-E -- Explanations Quarter Ending:                      
 
Schedule RI-E is to be completed each quarter on a calendar year-to-date basis.
 
 
Dollar Amounts in Thousands
 
1.
Other noninterest income (from Schedule RI, item 5.l)
 
 
Itemize and describe amounts greater than $25,000 that exceed 3% of Schedule RI, item 5.1:
 
1. a.
Income and fees from the printing and sale of checks
 
1. b.
Earnings on/increase in value of cash surrender value of life insurance
 
1. c.
Income and fees from automated teller machines (ATMs)
 
1. d.
Rent and other income from other real estate owned
 
1. e.
Safe deposit box rent
 
1. f.
Net change in the fair values of financial instruments accounted for under a fair value option
 
1. g.
Bank card and credit card interchange fees
 
1. h.
Gains on bargain purchases
 
1. i.
   
1. j.
   
1. k.
   
2.
Other noninterest expense (from Schedule RI, item 7.d)
 
 
Itemize and describe amounts greater than $25,000 that exceed 3% of Schedule RI, item 7.d:
 
2. a.
Data processing expenses
 
2. b.
Advertising and marketing expenses
 
2. c.
Directors’ fees
 
2. d.
Printing, stationery, and supplies
 
2. e.
Postage
 
2. f.
Legal fees and expenses
 
2. g.
FDIC deposit insurance assessments
 
2. h.
Accounting and auditing expenses
 
2. i.
Consulting and advisory expenses
 
2. j.
   
2.  k.
Telecommunications expenses
 
2.  l.
   
2. m.
   
2. n.
   
3.
Extraordinary items and other adjustments and applicable income tax effect (from Schedule RI, item 11) (itemize and describe all extraordinary items and other adjustments):
 
3. a.  (1)
 
         (2)
Applicable income tax effect
 
3. b.  (1)
 
         (2)
Applicable income tax effect
 
3. c.  (1)
 
         (2)
Applicable income tax effect
 
4.
Cumulative effect of changes in accounting principles and corrections of material accounting errors (from Schedule RI-A, item 2) (itemize and describe all such effects):
 
4. a.
   
4. b.
   
5.
Other transactions with parent holding company (from Schedule RI-A, item 11) (itemize and describe all such transactions):
 
5. a.
Introduction of initial capital as membership interest.
 
5. b.
   
6.
Adjustments to allowance for loan and lease losses; (itemize and describe all adjustments)
 
6. a.
   
6. b.
   
7.
Other explanations (the space below is provided for the bank to briefly describe, at its option, any other significant items affecting the Report of Income):
 
 
Comments? (Yes or No)
 
 
Other explanations (please type or print clearly):
 
 

  Schedule RC -- Balance Sheet  Quarter Ending:                      
 
 
Dollar Amounts in Thousands
   
ASSETS
   
1.
Cash and balances due from depository institutions :
   
1. a.
Noninterest-bearing balances and currency and coin
36
 
1. b.
Interest-bearing balances
1,581
 
2.
Securities:
   
2. a.
Held-to-maturity securities (from Schedule RC-B, column A)
   
2. b.
Available-for-sale securities (from Schedule RC-B, column D)
   
3.
Federal funds sold and securities purchased under agreements to resell:
   
3. a.
Federal funds sold
   
3. b.
Securities purchased under agreements to resell
   
4.
Loans and lease financing receivables:
   
4. a.
Loans and leases held for sale
   
4. b.
Loans and leases, net of unearned income
   
4. c.
LESS: Allowance for loan and lease losses
   
4. d.
Loans and leases, net of unearned income and allowance (item 4.b minus 4.c)
   
5.
Trading assets
   
6.
Premises and fixed assets (including capitalized leases)
   
7.
Other real estate owned
   
8.
Investments in unconsolidated subsidiaries and associated companies
   
9.
Direct and indirect investments in real estate ventures
   
10.
Intangible assets:
   
10. a.
Goodwill
   
10. b.
Other intangible assets
   
11.
Other assets (from Schedule RC-F)
77
 
12.
Total assets (sum of items 1 though 11)
 
1,694
LIABILITIES
   
13.
Deposits:
   
13. a.
In domestic offices:
   
 
(1) Noninterest-bearing
   
 
(2) Interest-bearing
   
13. b.
Not applicable
   
14.
Federal funds purchased and securities sold under agreements to repurchase:
   
14. a.
Federal funds purchased
   
14. b.
Securities sold under agreements to repurchase
   
15.
Trading liabilities
   
16.
Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases)
17. and 18.
Not applicable
   
19.
Subordinated notes and debentures
   
20.
Other liabilities (from Schedule RC-G)
186
 
21.
Total liabilities (sum of items 13 through 20)
 
186
22.
Not applicable
   
EQUITY CAPITAL
   
23.
Perpetual preferred stock and related surplus
   
24.
Common Stock
1,545
 
25.
Surplus (exclude all surplus related to preferred stock)
   
26. a.
Retained earnings
(37)
 
26. b.
Accumulated other comprehensive income (includes net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, and minimum pension liability adjustments.)
   
26. c.
Other equity capital components
   
27. a.
Total bank equity capital (sum of items 23 through 26.c)
 
1,508
27. b.
Noncontrolling (minority) interests in consolidated subsidiaries
   
28.
Total equity capital (sum of items 27.a and 27.b)
 
1,508
29.
Total liabilities and equity capital (sum of items 21 and 28)
 
1,694
 
Memorandum
   
 
Indicate in the box at the right the year of the last completed audit, that conforms to the standards listed in NH RSA 384:43, “Annual Audits”.
N/A first year of operation
 

  Schedule RC-B --Securities  Quarter Ending:                      
 
   
Dollar Amounts in Thousands
 
   
Held to maturity
Available for sale
     
(Column A)
Amortized Cost
(Column B)
Fair Value
(Column C)
Amortized Cost
(Column D)
Fair Value
1.
U.S. Treasury securities
       
2.
U.S. Government agency obligations (exclude mortgage-backed securities):
2. a.
Issued by U.S. Government agencies
       
2. b.
Issued by U.S. Government-sponsored agencies
       
3.
Securities issued by states and political subdivisions in the U.S.
       
4.
Mortgage-backed securities (MBS):
       
4. a.
Pass-through securities:
       
(1)
Guaranteed by GNMA
       
(2)
Issued by FNMA and FHLMC
       
(3)
Other pass-through securities
       
4. b.
Other mortgage-backed securities (include CMOs, REMICs and stripped MBS):
       
(1)
Issued or guaranteed by U.S. Government agencies or sponsored agencies
       
(2)
Collateralized by MBS issued or guaranteed by U.S. Government agencies or sponsored
       
 
agencies
       
     (3)
All other residential MBS
       
4. c.
Commercial MBS:
       
(1)
Commercial mortgage pass-through securities
       
 
(a) Issued or guaranteed by FNMA, FHLMC, or GNMA
       
 
(b) Other pass-through securities
       
(2)
Other commercial MBS:
       
 
(a) Issued or guaranteed by U.S. Government agencies or sponsored agencies
       
 
(b) All other commercial MBS
       
5.
Asset-backed securities and structured financial products:
       
     a.
Asset-backed securities (ABS)
       
     b.
Structured financial products:
       
(1)
Cash
       
(2)
Synthetic
       
(3)
Hybrid
       
6.
Other debt securities:
       
6. a.
Other domestic debt securities
       
6. b.
Foreign debt securities
       
7.
Investments in mutual funds and other equity securities with readily determinable fair values
       
8.
Total (sum of items 1 through 7) (total of column A must equal Schedule RC, item 2.a) (total of column D must equal Schedule RC, item 2.b)
       
           
 
Memoranda
       
   
Dollar Amounts in Thousands
 
1.
Pledged securities 1
       
 
1
Includes held-to-maturity securities at amortized cost and available-for-sale securities at fair value.
 

  Schedule RC-F -- Other Assets  Quarter Ending:                      
 
   
Dollar Amounts in Thousands
1.
Accrued interest receivable
   
2.
Net deferred tax assets
   
3.
Interest-only strips receivable (not in the form of a security) on:
   
3. a.
Mortgage loans
   
3. b.
Other financial assets
   
4.
Equity securities that DO NOT have readily determinable fair values
   
5.
Life insurance assets:
   
    a.
General account life insurance assets
   
    b.
Separate account life insurance assets
   
    c.
Hybrid account life insurance assets
   
6.
All other assets (itemize and describe amounts greater than $25,000 that exceed 25% of this item)
 
77
6. a.
Prepaid expenses
41
 
6. b.
Repossessed personal property (including vehicles)
   
6. c.
Derivatives with a positive fair value held for purposes other than trading
   
6. d.
Retained interests in accrued interest receivables related to securitized credit cards
   
6. e.
FDIC loss-sharing indemnification assets
   
6. f.
Prepaid deposit insurance assessments
   
6. g.
Account receivables
30
 
6. h.
     
6. i.
     
7.
Total (sum of items 1 through 6) (must equal Schedule RC, item 11)
 
77
       
 
6. itemized amounts
   
       
 
$30k for accounts receivable annual fee for Exco
   
 
$41k of Prepaid expenses are related to Insurance expenses paid for the year
   
 

  Schedule RC-G -- Other Liabilities  Quarter Ending:                      
 
   
Dollar Amounts in Thousands
1. a.
Interest accrued and unpaid on deposits
   
1. b.
Other expenses accrued and unpaid (includes accrued income taxes payable)
   
2.
Net deferred tax liabilities
   
3.
Allowance for credit losses on off-balance sheet credit exposures
   
4.
All other liabilities (itemize and describe amounts greater than $25,000 that exceed 25% of this item)
 
186
4. a.
Accounts payable
   
4. b.
Deferred compensation liabilities
   
4. c.
Dividends declared but not yet payable
   
4. d.
Derivatives with a negative fair value held for purposes other than trading
   
4. e.
     
4. f.
     
4. g.
     
5.
Total (sum of items 1 though 4) (must equal Schedule RC, item 20)
 
186
 

  Schedule RC-T -- Fiduciary and Related Services  Quarter Ending:                      
 
           
   
(Column A)
(Column B)
(Column C)
(Column D)
FIDUCIARY AND RELATED ASSETS
Managed
Assets
Non-Managed
Assets
Number of
Managed
Accounts
Number of
Non-Managed
Accounts
4.
Personal trust and agency accounts
       
5.
Retirement related trust and agency accounts:
       
5. a.
Employee benefit -- defined contribution
       
5. b.
Employee benefit -- defined benefit
       
5. c.
Other employee benefit and retirement-related accounts
       
6.
Corporate trust and agency accounts
 
1,288,949
 
3
7.
Investment management and investment advisory agency accounts
       
8.
Foundation and endowment trust and agency accounts
       
9.
Other fiduciary accounts
       
10.
Total fiduciary accounts (sum of items 4 through 9)
 
1,288,949
 
3
11.
Custody and safekeeping accounts
       
12.
Not applicable
       
13.
Individual Retirement Accounts, Health Savings Accounts, and other similar accounts
       
 
(included in items 5.c and 11)
       
           
           
FIDUCIARY AND RELATED SERVICES INCOME
       
14.
Personal trust and agency accounts
       
15.
Employee benefit and retirement related trust and agency accounts:
       
15. a.
Employee benefit -- defined contribution
       
15. b.
Employee benefit -- defined benefit
       
15. c.
Other employee benefit and retirement-related accounts
       
16.
Corporate trust and agency accounts
54
     
17.
Investment management and investment advisory agency accounts
       
18.
Foundation and endowment trust and agency accounts
       
19.
Other fiduciary accounts
       
20.
Custody and safekeeping accounts
       
21.
Other fiduciary and related services income
       
22.
Total gross fiduciary and related services income (sum of items 14 through 21) (must equal
       
 
Schedule RI, item 5.a)
54
     
23.
Less: Expenses
(52)
     
24.
Less: Net losses from fiduciary and related services
       
25.
Plus: Intracompany income credits for fiduciary and related services
       
26.
Net fiduciary and related services income
2
     
 

Memoranda
(Column A)
Personal Trust
and Agency and Investment Management
Agency
Accounts
(Column B)
Employee Benefit
and Retirement
Related Trust
and Agency
Accounts
(Column C)
 
 
 
All Other
Accounts
1.
Managed assets held in fiduciary accounts:
     
1. a.
Noninterest-bearing deposits
     
1. b.
Interest-bearing deposits
     
1. c.
U.S. Treasury and U.S. Government agency obligations
     
1. d.
State, county and municipal obligations
     
1. e.
Money market mutual funds
     
1. f.
Equity mutual funds
     
1. g.
Other mutual funds
     
1. h.
Common trust funds and collective investment funds
     
1. i.
Other short-term obligations
     
1. j.
Other notes and bonds
     
1. k.
Investments in unregistered funds and private equity investments
   
1. l.
Other common and preferred stocks
     
1. m.
Real estate mortgages
     
1. n.
Real estate
     
1. o.
Miscellaneous assets
     
1. p.
Total managed assets held in fiduciary accounts (for each column, sum of Memorandum
 
items 1.a through 1.o)
     
 
   
(Column A)
Managed
Assets
(Column B)
Number of
Managed
Accounts
 
1. q.
Investments of managed fiduciary accounts in advised or sponsored mutual funds
   
 

(Continued)-- Schedule RC-T -- Fiduciary and Related Services
 
   
Dollar Amounts in Thousands
 
   
(Column A)
Number of
Issues
(Column B)
Principal
Amount
Outstanding
   
2.
Corporate trust and agency accounts:
       
2.a.
Corporate and municipal trusteeships
3
1,288,949
   
 
(1) Issues reported in Memorandum item 2.a. that are in default
3
157,752
   
2.b.
Transfer agent, registrar, paying agent, and other corporate agency
3
     
           
           
   
(Column A)
(Column B)
   
   
Number of
Funds
Market
Value of
Fund
Assets
   
3.
Collective investment funds and common trust funds:
       
3. a.
Domestic equity
       
3. b.
International/Global equity
       
3. c.
Stock/Bond blend
       
3. d.
Taxable bond
       
3. e.
Municipal bond
       
3. f.
Short term investments/Money market
       
3. g.
Specialty/Other
       
3. h.
Total collective investment funds (sum of Memorandum items 3.a through 3.g)
       
           
   
(Column A)
(Column B)
(Column C)
 
   
Gross
Losses
Managed
Accounts
Gross
Losses Non-
Managed
Accounts
Recoveries
 
 
4.
Fiduciary settlements, surcharges, and other losses:
       
4. a.
Personal trust and agency accounts
       
4. b.
Employee benefit and retirement-related trust and agency accounts
       
4. c.
Investment management and investment advisory agency accounts
       
4. d.
Other fiduciary accounts and related services
       
4. e.
Total fiduciary settlements, surcharges, and other losses (sum of Memorandum items 4.a through 4.d) (sum of columns A and B minus column C must equal Schedule RC-T, item 24)
       
           
   
Number of
Accounts
     
5.
Accounts where the institution is named or serves as a fiduciary of an account to be funded at a later date
       
           
   
Number of
Accounts
     
6.
Accounts where the institution is named or serves as “Trust Protector”
       
 
 

Categories

SEC Filings