Supplemental Indenture No. 2, dated as of December 1, 2021, to the Senior Notes Indenture, dated as of February 9, 2017, among IHS Markit Ltd., the guarantors party thereto and Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association), as trustee
SUPPLEMENTAL INDENTURE NO. 2
SUPPLEMENTAL INDENTURE NO. 2 (this “Supplemental Indenture No. 2”), dated as of December 1, 2021, between IHS Markit Ltd., a Bermuda exempted company limited by shares (the “Company”), and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, as trustee (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company and the guarantors listed therein have heretofore executed and delivered to the Trustee an indenture, dated as of February 9, 2017 (the “Base Indenture”), as supplemented by the Supplemental Indenture No.1, dated as of July 13, 2017, among the Company, the guarantors listed therein and the Trustee (together with the Base Indenture, the “Indenture”), providing for the issuance of the Company’s 4.750% Senior Notes due 2025 (the “Notes”);
WHEREAS, on June 25, 2018, the Company filed a Current Report on Form 8-K, which announced, among other things, that in connection with the Company’s entry into a new credit agreement, and the termination of the Credit Agreement, each guarantor under the Notes was released from its guarantee pursuant to the terms of the Indenture;
WHEREAS, $800,000,000 in aggregate principal amount of the Notes is currently outstanding;
WHEREAS, subject to certain exceptions, Section 9.02 of the Indenture provides, among other things, that the Indenture may be amended with the consent of holders of a majority in principal amount of the Notes then outstanding (including consents obtained in connection with a tender offer or exchange offer for the Notes);
WHEREAS, on November 29, 2020, the Company and S&P Global, Inc., a New York Corporation (“S&P Global”), entered into an agreement and plan of merger, as may be amended from time to time, pursuant to which, among other things, Sapphire Subsidiary, Ltd., a Bermuda exempted company limited by shares and a wholly owned subsidiary of S&P Global, will merge with and into the Company, with the Company surviving the merger as a wholly owned subsidiary of S&P Global (the “Merger”);
WHEREAS, in connection with the Merger, S&P Global Market Intelligence, Inc., a Delaware corporation and a wholly owned subsidiary of S&P Global (“Market Intelligence”), has issued an Offering Memorandum and Consent Solicitation Statement, dated November 16, 2021 (the “Offering Memorandum”), pursuant to which Market Intelligence has (i) offered to exchange (the “Exchange Offer”) the Notes for new 4.750% Senior Notes due 2025 issued by S&P Global (the “Exchange Notes”) and cash and (ii) solicited consents (the “Consent Solicitation”), on behalf of the Company, from certain holders of the Notes to amend the Indenture as set forth in Article I hereof;
WHEREAS, the Company requests the Trustee to join with it in the execution and delivery of this Supplemental Indenture No. 2, and, in accordance with Section 9.05 of the
Indenture, the Company has (i) received and delivered to the Trustee evidence of the consent of the holders of at least a majority in aggregate principal amount of the Notes outstanding, which consents have not been withdrawn, to the execution and delivery of this Supplemental Indenture No. 2 pursuant to the Exchange Offer and the Consent Solicitation and (ii) delivered to the Trustee simultaneously with the execution and delivery of this Supplemental Indenture No. 2 an Officer’s Certificate and an Opinion of Counsel relating to this Supplemental Indenture No. 2; and
WHEREAS, all requirements necessary to make this Supplemental Indenture No. 2 a valid, binding and enforceable instrument in accordance with its terms have been met and performed, and the execution and delivery of this Supplemental Indenture No. 2 has been duly authorized in all respects.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company and the Trustee mutually covenant and agree for the benefit of each other and for the equal and ratable benefit of the holders of the Notes as follows:
AMENDMENTS TO INDENTURE AND NOTES
SECTION 1.1 AMENDMENTS TO ARTICLES FOUR, FIVE AND SIX OF THE INDENTURE.
(a) The Base Indenture is hereby amended by deleting the following Sections of the Base Indenture and all references and definitions related solely thereto in their entirety:
|•||Section 4.03 (Taxes);|
|•||Section 4.06 (SEC Reports);|
|•||Section 4.08 (Limitation on Liens);|
|•||Section 4.09 (Future Guarantors);|
|•||Section 4.10 (Offer to Repurchase upon Change of Control);|
|•||Section 4.11 (Sale/Leaseback Transactions); and|
|•||Section 5.01 (Merger, Consolidation or Sale of All or Substantially All Assets).|
All such deleted Sections are replaced with “[Intentionally Omitted].”
(b) Clauses (3), (4), (5), (6), (7), (8), (9) and (10) of Section 6.01(a) (Events of Default) of the Base Indenture are hereby deleted in their entirety and replaced with “[Intentionally Omitted],” and all references in the Indenture to the clauses so eliminated are deleted in their entirety.
SECTION 1.2 AMENDMENTS TO NOTES. The Notes are hereby amended to delete all provisions inconsistent with the amendments to the Indenture effected by this Supplemental Indenture No. 2.
SECTION 2.1 CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
SECTION 2.2 INDENTURE. Except as amended hereby, the Indenture and the Notes are in all respects ratified and confirmed and all the terms shall remain in full force and effect. This Supplemental Indenture No. 2 shall form a part of the Indenture for all purposes, and every holder of Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound hereby and all terms and conditions of both shall be read together as though they constitute a single instrument, except that in the case of conflict the provisions of this Supplemental Indenture No. 2 shall control.
SECTION 2.3 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE NO. 2 WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 2.4 CONSENT TO JURISDICTION. Any legal suit, action or proceeding arising out of or based upon this Supplemental Indenture No. 2 or the transactions contemplated hereby (“Related Proceedings”) may be instituted in the federal courts of the United States of America located in the Borough of Manhattan in the City of New York or the courts of the State of New York in each case located in the City of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other proceeding has been brought in an inconvenient forum.
SECTION 2.5 WAIVER OF JURY TRIAL. EACH OF THE COMPANY 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 SUPPLEMENTAL INDENTURE NO. 2 OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 2.6 SUCCESSORS. All agreements of the Company in this Supplemental Indenture No. 2 shall bind its successors. All agreements of the Trustee in this Supplemental Indenture No. 2 shall bind its successors.
SECTION 2.7 COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture No. 2. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture No. 2 and of signature pages by facsimile or electronic document format (e.g., “.pdf” or “.tif”) transmission shall constitute effective execution and delivery of this Supplemental Indenture No. 2 as to the parties hereto and may be used in lieu of the original Supplemental Indenture No. 2 for all purposes.
The words “execution,” “signed,” “signature,” and words of like import in this Supplemental Indenture No. 2 or any agreement entered into in connection herewith shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act (e.g. DocuSign).
This Supplemental Indenture No. 2 shall be valid, binding, and enforceable against a party when executed and delivered by an authorized individual on behalf of the party by means of (i) an original manual signature; (ii) a faxed, scanned, or photocopied manual signature, or (iii) any other electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including any relevant provisions of the UCC (collectively, “Signature Law”), in each case to the extent applicable. Each faxed, scanned, or photocopied manual signature, or other electronic signature, shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any other party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. This Supplemental Indenture No. 2 may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute one and the same instrument. For the avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the UCC or other Signature Law due to the character or intended character of the writings.
SECTION 2.8 SEVERABILITY. In case any provision in this Supplemental Indenture No. 2 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 2.9 THE TRUSTEE. The Trustee accepts the amendments of the Indenture effected by this Supplemental Indenture No. 2 and agrees to perform its duties under the Indenture as hereby amended, but on the terms and conditions set forth in the Indenture, including the terms and provisions defining the rights and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define its rights and limit its liabilities and responsibilities in the performance of its duties under the Indenture as hereby amended. All of the provisions contained in the Indenture in respect of the rights, privileges, immunities, powers, and duties of the Trustee shall be applicable in respect of this Supplemental Indenture No. 2 as
fully and with like force and effect as though fully set forth in full herein. The Trustee makes no representation as to and shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture No. 2, the Merger, the Exchange Offer, the Exchange Notes, the Consent Solicitation, any document used in connection with the Exchange Offer or the Consent Solicitation, or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company, and the Trustee assumes no responsibility for the same.
SECTION 2.10 EFFECTIVENESS. The provisions of this Supplemental Indenture No. 2 shall be effective and binding upon execution and delivery of this instrument by the parties hereto. Notwithstanding the foregoing sentence, the amendments set forth in Article I of this Supplemental Indenture No. 2 shall become operative only upon the consummation and settlement of the Exchange Offer and the Consent Solicitation in accordance with the terms and conditions set forth in the Offering Memorandum, including the condition that the Merger shall have been consummated. The Company shall notify the Trustee in writing promptly after the Exchange Offer and the Consent Solicitation is consummated or after the Company shall determine that the Exchange Offer and the Consent Solicitation will not be consummated. The Company, by providing written notice to the Trustee of the consummation of the Exchange Offer and the Consent Solicitation, hereby represents, warrants, and certifies to the Trustee that the holders of at least a majority in aggregate principal amount of the Notes outstanding have provided consents to the execution of this Supplemental Indenture No. 2.
SECTION 2.11 HEADINGS. The headings of the Sections of this Supplemental Indenture No. 2 have been inserted for convenience of reference only, are not to be considered a part of this Supplemental Indenture No. 2 and shall in no way modify or restrict any of the terms or provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture No. 2 to be duly executed and delivered, all as of the date first above written.
|IHS MARKIT LTD.|
|By:||/s/ Jonathan Gear|
|Title:||Executive Vice President and Chief Financial Officer|
|COMPUTERSHARE TRUST COMPANY, N.A., as Trustee|
|By:||/s/ Linda Lopez|
|Title:||Assistant Vice President|
[SIGNATURE PAGE TO SUPPLEMENTAL INDENTURE NO. 2]