Document
EXHIBIT 4.4
Execution Version
JH NORTH AMERICA HOLDINGS INC.
as Issuer,
the Guarantors named herein
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
as Issuer,
the Guarantors named herein
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee and as Collateral Agent
INDENTURE
Dated as of June 17, 2025
5.875% Senior Secured Notes due 2031
6.125% Senior Secured Notes due 2032
TABLE OF CONTENTS ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE | Page | |||||||
SECTION 1.01. | Definitions. | 1 | ||||||
SECTION 1.02. | Rules of Construction. | 51 | ||||||
SECTION 1.03. | Limited Condition Transactions. | 52 | ||||||
SECTION 1.04. | Pro Forma and Other Calculations. | 53 | ||||||
ARTICLE TWO THE SECURITIES | ||||||||
SECTION 2.01. | Amount of Notes | 54 | ||||||
SECTION 2.02. | Form and Dating; Legends. | 54 | ||||||
SECTION 2.03. | Execution and Authentication. | 55 | ||||||
SECTION 2.04. | Registrar and Paying Agent. | 56 | ||||||
SECTION 2.05. | Paying Agent To Hold Money in Trust. | 57 | ||||||
SECTION 2.06. | Noteholder Lists. | 57 | ||||||
SECTION 2.07. | Transfer and Exchange. | 57 | ||||||
SECTION 2.08. | Replacement Notes. | 58 | ||||||
SECTION 2.09. | Outstanding Notes. | 59 | ||||||
SECTION 2.10. | Treasury Notes | 59 | ||||||
SECTION 2.11. | Temporary Notes. | 60 | ||||||
SECTION 2.12. | Cancellation. | 60 | ||||||
SECTION 2.13. | Defaulted Interest | 60 | ||||||
SECTION 2.14. | CUSIP and ISIN Numbers | 61 | ||||||
SECTION 2.15. | Deposit of Moneys | 61 | ||||||
SECTION 2.16. | Book-Entry Provisions for Global Notes. | 62 | ||||||
SECTION 2.17. | Transfer and Exchange of Notes | 63 | ||||||
SECTION 2.18. | Computation of Interest. | 70 | ||||||
ARTICLE THREE REDEMPTION | ||||||||
SECTION 3.01. | Election To Redeem; Notices to Trustee. | 71 | ||||||
SECTION 3.02. | Selection by Trustee of Notes To Be Redeemed. | 71 | ||||||
SECTION 3.03. | Notice of Redemption | 71 | ||||||
SECTION 3.04. | Effect of Notice of Redemption | 73 | ||||||
SECTION 3.05. | Deposit of Redemption Price | 74 | ||||||
SECTION 3.06. | Notes Redeemed in Part. | 74 | ||||||
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SECTION 3.07. | Mandatory Redemption, Etc. | 74 | ||||||
SECTION 3.08. | Special Mandatory Redemption. | 75 | ||||||
ARTICLE FOUR COVENANTS | ||||||||
SECTION 4.01. | Payment of Notes | 75 | ||||||
SECTION 4.02. | Maintenance of Office or Agency. | 77 | ||||||
SECTION 4.03. | Legal Existence. | 77 | ||||||
SECTION 4.04. | [Reserved]. | 78 | ||||||
SECTION 4.05. | Waiver of Stay, Extension or Usury Laws. | 78 | ||||||
SECTION 4.06. | Compliance Certificate. | 78 | ||||||
SECTION 4.07. | Taxes. | 79 | ||||||
SECTION 4.08. | Repurchase at the Option of Holders upon Change of Control Triggering Event. | 79 | ||||||
SECTION 4.09. | [Reserved]. | 82 | ||||||
SECTION 4.10. | [Reserved]. | 82 | ||||||
SECTION 4.11. | Limitation on Liens | 82 | ||||||
SECTION 4.12. | Limitation on Sale and Leaseback Transactions. | 82 | ||||||
SECTION 4.13. | Reports to Holders. | 83 | ||||||
SECTION 4.14. | Additional Note Guarantees. | 85 | ||||||
SECTION 4.15. | After-Acquired Property; Post-Closing Perfection | 86 | ||||||
ARTICLE FIVE SUCCESSOR CORPORATION | ||||||||
SECTION 5.01. | Consolidation, Merger and Sale of Assets | 86 | ||||||
SECTION 5.02. | Successor Person Substituted. | 87 | ||||||
ARTICLE SIX DEFAULTS AND REMEDIES | ||||||||
SECTION 6.01. | Events of Default. | 88 | ||||||
SECTION 6.02. | Acceleration of Maturity; Rescission. | 90 | ||||||
SECTION 6.03. | Other Remedies. | 91 | ||||||
SECTION 6.04. | Waiver of Existing Defaults and Events of Default. | 91 | ||||||
SECTION 6.05. | Control by Majority. | 92 | ||||||
SECTION 6.06. | Limitation on Suits. | 92 | ||||||
SECTION 6.07. | Rights of Holders To Receive Payment. | 93 | ||||||
SECTION 6.08. | Collection Suit by Trustee. | 93 | ||||||
SECTION 6.09. | Trustee May File Proofs of Claim. | 93 | ||||||
SECTION 6.10. | Priorities | 94 | ||||||
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| Page | ||||||||
| SECTION 6.11. | Undertaking for Costs | 94 | ||||||
ARTICLE SEVEN TRUSTEE | ||||||||
| SECTION 7.01. | Duties of Trustee | 95 | ||||||
| SECTION 7.02. | Rights of Trustee. | 97 | ||||||
| SECTION 7.03. | Individual Rights of Trustee. | 99 | ||||||
| SECTION 7.04. | Trustee’s Disclaimer | 99 | ||||||
| SECTION 7.05. | Notice of Defaults | 99 | ||||||
| SECTION 7.06. | [Reserved] | 100 | ||||||
| SECTION 7.07. | Compensation and Indemnity | 100 | ||||||
| SECTION 7.08. | Replacement of Trustee | 101 | ||||||
| SECTION 7.09. | Successor Trustee by Consolidation, Merger, etc. | 102 | ||||||
| SECTION 7.10. | Eligibility; Disqualification | 102 | ||||||
| SECTION 7.11. | Paying Agents | 103 | ||||||
| SECTION 7.12. | Limitation on Duty of Trustee in Respect of Collateral; Indemnification | 103 | ||||||
ARTICLE EIGHT AMENDMENT, SUPPLEMENT AND WAIVER | ||||||||
| SECTION 8.01. | Without Consent of Noteholders | 104 | ||||||
| SECTION 8.02. | With Consent of Noteholders | 106 | ||||||
| SECTION 8.03. | [Reserved] | 108 | ||||||
| SECTION 8.04. | Revocation and Effect of Consents | 108 | ||||||
| SECTION 8.05. | Notation on or Exchange of Notes | 108 | ||||||
| SECTION 8.06. | Trustee and Collateral Agent To Sign Amendments, etc | 109 | ||||||
ARTICLE NINE DISCHARGE OF INDENTURE; DEFEASANCE; GUARANTEE | ||||||||
| SECTION 9.01. | Discharge of Indenture. | 109 | ||||||
| SECTION 9.02. | Legal Defeasance | 110 | ||||||
| SECTION 9.03. | Covenant Defeasance | 111 | ||||||
| SECTION 9.04. | Conditions to Legal Defeasance or Covenant Defeasance | 112 | ||||||
| SECTION 9.05. | Deposited Money and U.S. Government Obligations To Be Held in Trust | 113 | ||||||
| SECTION 9.06. | Reinstatement | 114 | ||||||
| SECTION 9.07. | Moneys Held by Paying Agent | 114 | ||||||
| SECTION 9.08. | Moneys Held by Trustee | 115 | ||||||
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ARTICLE TEN COLLATERAL | ||||||||
| SECTION 10.01. | Collateral; Collateral Documents | 115 | ||||||
| SECTION 10.02. | Release of Collateral | 117 | ||||||
| SECTION 10.03. | Authorization of Actions to Be Taken by the Trustee Under the Collateral Documents. | 118 | ||||||
| SECTION 10.04. | Authorization of Receipt of Funds by the Trustee Under the Collateral Documents | 119 | ||||||
| SECTION 10.05. | Termination of Security Interest | 119 | ||||||
| SECTION 10.06. | Collateral Agent | 119 | ||||||
ARTICLE ELEVEN ESCROW | ||||||||
| SECTION 11.01. | Escrow of Proceeds | 128 | ||||||
ARTICLE TWELVE GUARANTEE OF SECURITIES | ||||||||
| SECTION 12.01. | Guarantee | 129 | ||||||
| SECTION 12.02. | Execution and Delivery of Note Guarantee | 130 | ||||||
| SECTION 12.03. | Release of Guarantors | 131 | ||||||
| SECTION 12.04. | Waiver of Subrogation | 132 | ||||||
| SECTION 12.05. | Notice to Trustee | 133 | ||||||
| SECTION 12.06. | Limitation on Guarantor’s Liability | 133 | ||||||
ARTICLE THIRTEEN MISCELLANEOUS | ||||||||
| SECTION 13.01. | [Reserved] | 134 | ||||||
| SECTION 13.02. | Notices | 134 | ||||||
| SECTION 13.03. | [Reserved] | 136 | ||||||
| SECTION 13.04. | Certificate and Opinion as to Conditions Precedent | 136 | ||||||
| SECTION 13.05. | Statements Required in Certificate and Opinion | 136 | ||||||
| SECTION 13.06. | Rules by Trustee and Agents. | 137 | ||||||
| SECTION 13.07. | Business Days | 137 | ||||||
| SECTION 13.08. | Governing Law | 137 | ||||||
| SECTION 13.09. | No Adverse Interpretation of Other Agreements | 137 | ||||||
| SECTION 13.10. | Successors | 137 | ||||||
| SECTION 13.11. | Multiple Counterparts | 138 | ||||||
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| Page | ||||||||
| SECTION 13.12. | Table of Contents, Headings, etc | 138 | ||||||
| SECTION 13.13. | Separability | 138 | ||||||
| SECTION 13.14. | Waiver of Jury Trial | 138 | ||||||
| SECTION 13.15. | Consent to Jurisdiction and Service | 138 | ||||||
| SECTION 13.16. | Force Majeure | 139 | ||||||
| SECTION 13.17. | U.S.A. PATRIOT Act | 139 | ||||||
| SECTION 13.18. | No Personal Liability of Directors, Officers, Employees and Stockholders | 139 | ||||||
EXHIBITS | ||||||||
| Exhibit A-1. | Form of Restricted 2031 Note | A-1-1 | ||||||
| Exhibit A-2. | Form of Restricted 2032 Note | A-2-1 | ||||||
Exhibit A-3. | Form of Unrestricted 2031 Note | A-3-1 | ||||||
| Exhibit A-4. | Form of Unrestricted 2032 Note | A-4-1 | ||||||
Exhibit B. | Form of Private Placement Legend | B-1 | ||||||
Exhibit C. | Form of ERISA Legend | C-1 | ||||||
Exhibit D. | Form of Legend for Global Note | D-1 | ||||||
Exhibit E. | Form of Regulation S Legend | E-1 | ||||||
Exhibit F. | Form of Certificate of Transfer | F-1 | ||||||
Exhibit G. | Form of Certificate of Exchange | G-1 | ||||||
Exhibit I. | Form of Supplemental Indenture to be Delivered by Subsequent Guarantors | I-1 | ||||||
Exhibit J. | Form of Equal Priority Intercreditor Agreement | J-1 | ||||||
Exhibit K. | Form of Pledge Agreement | K-1 | ||||||
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INDENTURE, dated as of June 17, 2025, by and among JH North America Holdings Inc., a Delaware corporation (the “Issuer”), the Guarantors (as defined below) and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”) and as collateral agent (the “Collateral Agent”).
Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Notes.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
“2031 Notes” means the Initial 2031 Notes and the Additional 2031 Notes, treated as a single class of securities.
“2032 Notes” means the Initial 2032 Notes and the Additional 2032 Notes, treated as a single class of securities.
“Acquired EBITDA” means, with respect to any Acquired Entity or Business for any period, the amount for such period of Consolidated Adjusted EBITDA of such Pro Forma Entity (determined as if references to the Consolidated Group in the definition of “Consolidated Adjusted EBITDA” were references to such Pro Forma Entity and its subsidiaries), all as determined on a consolidated basis for such Pro Forma Entity in accordance with GAAP.
“Acquired Entity or Business” has the meaning specified in the definition of “Consolidated Adjusted EBITDA.”
“Acquisition” means the acquisition, whether through a single transaction or a series of related transactions, of (a) a majority of the Voting Equity Interests or other control-ling ownership interest in another Person (including the purchase of an option, warrant or convertible or similar type security to acquire such a controlling interest at the time it be-comes exercisable by the holder thereof), whether by purchase of such equity or other owner-ship interest or upon the exercise of an option or warrant for, or conversion of securities into, such equity or other ownership interest, or (b) assets of another Person which constitute all or substantially all of the assets of such Person or of a division, line of business or other business unit of such Person.
“Action” has the meaning specified in Section 10.06(d).
“Additional Amounts” means, in the event any withholding or deduction is required for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payments made under or with respect to the Notes or under any Note Guarantee (including payments of principal, redemption price, interest or premium (if any)), such additional amounts the payment of which by the Issuer or a Guarantor, as applicable, may be necessary so that the net amount received by each Holder or beneficial owner of the Notes after such withholding or deduction (including any withholding or deduction attributable to the Additional Amounts) will equal the amount such Holder or beneficial owner would have received if such Taxes had not been required to be withheld or deducted; provided that, notwithstanding the foregoing, Additional Amounts shall not include amounts payable in respect of, or on account of, the following:
(1) any Taxes that would not have been imposed but for the existence of any present or former connection between a Holder or the beneficial owner of Notes and the Relevant Taxing Jurisdiction (including being a citizen, resident or national of, or being engaged in business in, the Relevant Taxing Jurisdiction), other than a connection arising from the acquisition, ownership, holding or disposition of the Notes, or enforcement of rights under the Notes or any Note Guarantee, or the receipt of payments under or in respect of the Notes or any Note Guarantee;
(2) any Taxes that are imposed by reason of the failure of a Holder or beneficial owner of Notes to satisfy any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner that is required by applicable law, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, such Taxes, but in each case only to the extent such Holder or beneficial owner is legally eligible to provide such certification or other documentation; provided, however, that the Issuer has delivered a request to such Holder to comply with such requirements at least 30 days prior to the date by which such compliance is required;
(3) any Taxes that would not have been imposed if the presentation of Notes (where presentation is required) for payment had occurred within 30 days after the date such payment was due and payable or was duly provided for, whichever is later, except to the extent that a Holder or beneficial owner of Notes would have been entitled to Additional Amounts had the Note been presented within such 30-day period;
(4) any Taxes payable otherwise than by deduction or withholding in respect of a payment on the Notes or any Note Guarantee;
(5) any estate, inheritance, gift, value-added, personal property or similar Taxes;
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(6) any Tax imposed pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) as of the Issue Date (or any amended or successor version that is substantially comparable and not materially more onerous to comply with), any regulations promulgated thereunder or official interpretations thereof, any agreement entered into pursuant to Section 1471 of the Code as of the Issue Date (or any amended or successor version described above), or any inter-governmental agreement between the United States and another jurisdiction (and any related law) implementing the foregoing;
(7) any Taxes that could have been avoided by the presentation of Notes or guarantee (where presentation is required) for payment to a paying agent other than
the paying agent to which the presentation was made; or
(8) any Taxes imposed by the United States, any state thereof or the Dis-
trict of Columbia or tax authority therein, including any U.S. federal withholding and backup withholding taxes; or
(9) any combination of items (1) through (8) above.
For the avoidance of doubt, no Additional Amounts shall be payable in respect of any Taxes imposed by any jurisdiction other than a Relevant Taxing Jurisdiction.
“Additional 2031 Notes” has the meaning set forth in Section 2.01.
“Additional 2032 Notes” has the meaning set forth in Section 2.01.
“Additional Collateral Documents” means the documents granting to the Col-lateral Agent, for the benefit of itself, the Holders of the Notes and the Trustee, a Security Interest in such assets of the Issuer and the Guarantors as are not covered by the Collateral Documents delivered on the Escrow Release Date or after the Escrow Release Date pursuant to the provisions described in Section 4.15, but, rather, covered and delivered (if at all) pursuant to (x) the provisions described in Section 4.11 and clause (d) of the definition of Collateral and Guarantee Requirement (as defined in the Senior Secured Credit Agreement) whether or not then in effect) and, (y) other provisions correlative to those described and referred to in clause (x) of this definition as set forth in this Indenture, the Notes, the Note Guarantees and the Collateral Documents.
“Additional First Lien Obligations” means (i) the Notes Obligations and (ii) all other Obligations incurred after the Escrow Release Date that are secured on a ratable basis with the Credit Agreement Obligations and the Notes Obligations; provided that such Obligations have been designated as Additional First Lien Obligation pursuant to the Equal Priority Intercreditor Agreement.
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“Additional First Lien Security Document” means any pledge agreement, security agreement or any other document now existing or entered into a