EXHIBIT 4.1
Dated as of December 23, 2010
among
TENNECO AUTOMOTIVE OPERATING COMPANY INC.,
THE PULLMAN COMPANY
CLEVITE INDUSTRIES INC.
TENNECO GLOBAL HOLDINGS INC.
TMC TEXAS INC.
TENNECO INTERNATIONAL HOLDING CORP.
as Guarantors,
and
THE BANK OF
NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
67/8% Senior Notes due 2020, Series A
67/8% Senior Notes due 2020, Series B
CROSS-REFERENCE TABLE
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TIA |
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Indenture |
Section |
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Section |
310 |
(a)(1) |
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7.10 |
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(a)(2) |
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7.10 |
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(a)(3) |
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N.A. |
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(a)(4) |
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N.A. |
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(a)(5) |
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7.10 |
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(b) |
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7.08; 7.10 |
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(c) |
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N.A. |
311 |
(a) |
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7.11 |
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(b) |
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7.11 |
312 |
(a) |
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2.05 |
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(b) |
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11.03 |
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(c) |
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11.03 |
313 |
(a) |
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7.06 |
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(b)(1) |
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7.06 |
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(b)(2) |
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7.06; 7.07 |
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(c) |
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7.05; 7.06; 11.02 |
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(d) |
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7.06 |
314 |
(a) |
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4.08; 4.10; 11.02 |
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(b) |
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N.A. |
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(c)(1) |
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4.08; 11.04 |
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(c)(2) |
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11.04 |
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(c)(3 |
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4.08; 11.04 |
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(d) |
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N.A. |
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(e) |
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11.05 |
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(f) |
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N.A. |
315 |
(a) |
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7.01(b) |
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(b) |
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7.05; 11.02 |
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(c) |
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7.01(a) |
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(d) |
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7.01(c) |
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(e) |
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6.11 |
316 |
(a)(last sentence) |
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2.09 |
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(a)(1)(A) |
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6.05 |
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(a)(1)(B) |
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6.04 |
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(a)(2) |
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N.A. |
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(b) |
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6.07; 9.04 |
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(c) |
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9.04 |
317 |
(a)(1) |
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6.08 |
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(a)(2) |
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6.09 |
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(b) |
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2.04 |
318 |
(a) |
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11.01 |
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(c) |
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11.01 |
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“N.A.” means Not Applicable. |
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NOTE: |
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This Cross-Reference Table shall not, for any purpose, be deemed to be a part of the Indenture. |
-i-
TABLE OF CONTENTS
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Page |
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ARTICLE I |
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DEFINITIONS AND INCORPORATION BY REFERENCE |
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SECTION 1.01. Definitions |
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1 |
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SECTION 1.02. Incorporation by Reference of TIA |
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36 |
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SECTION 1.03. Rules of Construction |
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37 |
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ARTICLE II |
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THE SECURITIES |
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SECTION 2.01. Form and Dating |
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37 |
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SECTION 2.02. Execution and Authentication |
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38 |
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SECTION 2.03. Registrar and Paying Agent |
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39 |
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SECTION 2.04. Paying Agent To Hold Assets in Trust |
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40 |
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SECTION 2.05. Securityholder Lists |
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40 |
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SECTION 2.06. Transfer and Exchange |
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40 |
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SECTION 2.07. Replacement Securities |
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41 |
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SECTION 2.08. Outstanding Securities |
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41 |
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SECTION 2.09. Treasury Securities |
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42 |
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SECTION 2.10. Temporary Securities |
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42 |
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SECTION 2.11. Cancellation |
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42 |
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SECTION 2.12. Defaulted Interest |
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42 |
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SECTION 2.13. CUSIP Number |
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43 |
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SECTION 2.14. Deposit of Moneys |
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43 |
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SECTION 2.15. Book-Entry Provisions for Global Securities |
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43 |
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SECTION 2.16. Registration of Transfers and Exchanges |
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44 |
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ARTICLE III |
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REDEMPTION |
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SECTION 3.01. Notices to Trustee |
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48 |
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SECTION 3.02. Selection of Securities To Be Redeemed |
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49 |
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SECTION 3.03. Notice of Redemption |
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49 |
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SECTION 3.04. Effect of Notice of Redemption |
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50 |
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SECTION 3.05. Deposit of Redemption Price |
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50 |
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SECTION 3.06. Securities Redeemed in Part |
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50 |
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-ii-
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Page |
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ARTICLE IV |
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COVENANTS |
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SECTION 4.01. Payment of Securities |
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51 |
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SECTION 4.02. Maintenance of Office or Agency |
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51 |
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SECTION 4.03. Limitation on Incurrence of Additional Indebtedness |
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51 |
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SECTION 4.04. Limitation on Restricted Payments |
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52 |
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SECTION 4.05. Corporate Existence |
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56 |
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SECTION 4.06. Payment of Taxes and Other Claims |
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56 |
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SECTION 4.07. Maintenance of Properties and Insurance |
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56 |
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SECTION 4.08. Compliance Certificate; Notice of Default |
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57 |
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SECTION 4.09. Compliance with Laws |
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58 |
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SECTION 4.10. Reports to Holders |
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58 |
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SECTION 4.11. Waiver of Stay, Extension or Usury Laws |
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59 |
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SECTION 4.12. Limitation on Asset Sales |
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59 |
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SECTION 4.13. Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries |
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63 |
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SECTION 4.14. Limitation on Issuances of Capital Stock of Restricted
Subsidiaries |
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64 |
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SECTION 4.15. Limitation on Liens |
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65 |
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SECTION 4.16. [Intentionally Omitted] |
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66 |
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SECTION 4.17. Limitation on Transactions with Affiliates |
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66 |
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SECTION 4.18. Issuance of Subsidiary Guarantees |
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67 |
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SECTION 4.19. Payments for Consent |
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68 |
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SECTION 4.20. Limitation on Designations of Unrestricted Subsidiaries |
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69 |
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SECTION 4.21. Change of Control |
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70 |
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SECTION 4.22. Covenant Suspension |
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72 |
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ARTICLE V |
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SUCCESSOR CORPORATION |
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SECTION 5.01. Merger, Consolidation and Sale of Assets |
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74 |
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SECTION 5.02. Successor Corporation Substituted |
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76 |
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ARTICLE VI |
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DEFAULT AND REMEDIES |
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SECTION 6.01. Events of Default |
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76 |
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SECTION 6.02. Acceleration |
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78 |
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SECTION 6.03. Other Remedies |
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79 |
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SECTION 6.04. Waiver of Past Defaults |
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79 |
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SECTION 6.05. Control by Majority |
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79 |
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SECTION 6.06. Limitation on Suits |
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80 |
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SECTION 6.07. Rights of Holders To Receive Payment |
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80 |
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-iii-
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Page |
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SECTION 6.08. Collection Suit by Trustee |
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80 |
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SECTION 6.09. Trustee May File Proofs of Claim |
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81 |
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SECTION 6.10. Priorities |
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81 |
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SECTION 6.11. Payment of Interest; Interest Rights Preserved |
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82 |
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SECTION 6.12. Undertaking for Costs |
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83 |
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ARTICLE VII |
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TRUSTEE |
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SECTION 7.01. Duties of Trustee |
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83 |
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SECTION 7.02. Rights of Trustee |
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85 |
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SECTION 7.03. Individual Rights of Trustee |
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87 |
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SECTION 7.04. Trustee’s Disclaimer |
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87 |
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SECTION 7.05. Notice of Default |
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87 |
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SECTION 7.06. Reports by Trustee to Holders |
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88 |
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SECTION 7.07. Compensation and Indemnity |
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88 |
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SECTION 7.08. Replacement of Trustee |
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89 |
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SECTION 7.09. Successor Trustee by Merger, Etc. |
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90 |
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SECTION 7.10. Eligibility; Disqualification |
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91 |
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SECTION 7.11. Preferential Collection of Claims Against Company |
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91 |
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ARTICLE VIII |
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SATISFACTION AND DISCHARGE OF INDENTURE |
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SECTION 8.01. Legal Defeasance and Covenant Defeasance |
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91 |
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SECTION 8.02. Satisfaction and Discharge |
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94 |
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SECTION 8.03. Survival of Certain Obligations |
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95 |
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SECTION 8.04. Acknowledgment of Discharge by Trustee |
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95 |
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SECTION 8.05. Application of Trust Assets |
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96 |
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SECTION 8.06. Repayment to the Company or Guarantors; Unclaimed Money |
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96 |
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SECTION 8.07. Reinstatement |
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97 |
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ARTICLE IX |
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AMENDMENTS, SUPPLEMENTS AND WAIVERS |
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SECTION 9.01. Without Consent of Holders |
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97 |
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SECTION 9.02. With Consent of Holders |
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98 |
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SECTION 9.03. Compliance with TIA |
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99 |
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SECTION 9.04. Revocation and Effect of Consents |
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99 |
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SECTION 9.05. Notation on or Exchange of Securities |
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100 |
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SECTION 9.06. Trustee To Sign Amendments, Etc. |
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100 |
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-iv-
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Page |
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ARTICLE X |
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GUARANTEE |
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SECTION 10.01. Unconditional Guarantee |
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101 |
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SECTION 10.02. Severability |
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102 |
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SECTION 10.03. Release of a Guarantor |
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102 |
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SECTION 10.04. Limitation of a Guarantor’s Liability |
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102 |
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SECTION 10.05. Contribution |
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102 |
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SECTION 10.06. Waiver of Subrogation |
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103 |
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SECTION 10.07. Execution of Subsidiary Guarantees |
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103 |
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SECTION 10.08. Waiver of Stay, Extension or Usury Laws |
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104 |
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ARTICLE XI |
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MISCELLANEOUS |
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SECTION 11.01. TIA Controls |
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104 |
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SECTION 11.02. Notices |
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104 |
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SECTION 11.03. Communications by Holders with Other Holders |
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106 |
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SECTION 11.04. Certificate and Opinion as to Conditions Precedent |
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106 |
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SECTION 11.05. Statements Required in Certificate or Opinion |
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106 |
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SECTION 11.06. Rules by Trustee, Paying Agent, Registrar |
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107 |
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SECTION 11.07. Legal Holidays |
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107 |
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SECTION 11.08. Governing Law |
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107 |
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SECTION 11.09. No Adverse Interpretation of Other Agreements |
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108 |
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SECTION 11.10. No Recourse Against Others |
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108 |
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SECTION 11.11. Successors |
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108 |
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SECTION 11.12. Duplicate Originals |
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108 |
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SECTION 11.13. Severability |
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108 |
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SECTION 11.14. Table of Contents, Headings, Etc. |
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109 |
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Exhibit A
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—
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Form of Series A Security |
Exhibit B
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—
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Form of Series B Security |
Exhibit C
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—
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Form of Legend for Global Securities |
Exhibit D
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—
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Transfer Certificate |
Exhibit E
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—
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Transferee Certificate for Institutional Accredited Investors |
Exhibit F
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—
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Transferee Certificate for Regulation S Transfers |
Exhibit G
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—
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Form of Subsidiary Guarantee |
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Note: |
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This Table of Contents shall not, for any purpose, be deemed to be a part of the Indenture. |
-v-
INDENTURE dated as of December 23, 2010, among
TENNECO INC., a Delaware corporation (the
“
Company”), as issuer, TENNECO AUTOMOTIVE OPERATING COMPANY INC., THE PULLMAN COMPANY,
CLEVITE INDUSTRIES INC., TENNECO GLOBAL HOLDINGS INC., TMC TEXAS INC., TENNECO INTERNATIONAL
HOLDING CORP. and such other subsidiaries of the Company, as shall from time to time execute a
Subsidiary Guarantee (as defined herein), and THE BANK OF
NEW YORK MELLON TRUST COMPANY, N.A., a
national banking association, as Trustee (the “
Trustee”).
The Company has duly authorized the issue of 6
7/
8% Senior Notes due 2020, Series A, and 6
7/
8%
Senior Notes due 2020, Series B, and to provide therefor, the Company has duly authorized the
execution and delivery of this
Indenture. All things necessary to make the Securities (as defined
herein), when duly issued and executed by the Company and authenticated and delivered hereunder,
the valid and binding obligations of the Company, and to make this
Indenture a valid and binding
agreement of the Company, have been done.
Each party hereto agrees as follows for the benefit of each other party and for the equal and
ratable benefit of the Holders (as defined herein):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
“Accounts Receivable Entity” means a Person, including, without limitation, a
Subsidiary of the Company, whose operations consist solely of owning and/or selling accounts
receivable of the Company and its Subsidiaries and engaging in other activities in connection with
transactions that are Permitted Receivables Financings.
“Acquired Indebtedness” means Indebtedness of a Person or any of its Subsidiaries
existing at the time such Person becomes a Restricted Subsidiary or at the time it merges or
consolidates with the Company or any of the Restricted Subsidiaries or assumed by the Company or
any Restricted Subsidiary in connection with the acquisition of assets from such Person and in each
case not incurred by such Person in connection with, or in anticipation or contemplation of, such
Person becoming a Restricted Subsidiary or such acquisition, merger or consolidation.
“Acquired Subsidiary” means a Person which becomes a Restricted Subsidiary after the
Issue Date; provided that such Person has outstanding voting Capital Stock prior to
becoming a Subsidiary of the Company and a majority of such voting Capital Stock was owned by
Persons other than the Company and its Restricted Subsidiaries.
“
Additional Securities” means Series A Securities issued from time to time after the
Issue Date under the terms of this
Indenture (other than pursuant to Sections 2.06, 2.07, 2.10 or
3.06 of this
Indenture).
“Adjusted Net Assets” has the meaning set forth in Section 10.05.
“Affiliate” means, with respect to any specified Person, any other Person who directly
or indirectly through one or more intermediaries controls, or is controlled by, or is under common
control with, such specified Person. The term “control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative of the foregoing.
“Affiliate Transaction” has the meaning set forth in Section 4.17.
“Agent” means any Registrar, Paying Agent or co-Registrar.
“Applicable Premium” means, at any Redemption Date, the greater of (i) 1.0% of the
principal amount of such Security and (ii) the excess of (A) the present value at such Redemption
Date of (1) the redemption price of such Security on December 15, 2015 (such redemption price being
that described in the Security under Paragraph 5 “Optional Redemption”) plus (2) all required
remaining scheduled interest payments due on such Security through such date, computed using a
discount rate equal to the Treasury Rate plus 50 basis points, over (B) the principal amount of
such Security on such Redemption Date; and, as calculated by the Company or on behalf of the
Company by such Person as the Company shall designate; provided that such calculation shall
not be a duty or obligation of the Trustee.
“Asset Acquisition” means (1) 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 with or into the Company or any Restricted Subsidiary, or (2) the acquisition by
the Company or any Restricted Subsidiary of the assets of any Person (other than a Restricted
Subsidiary) which constitute all or substantially all of the assets of such Person or comprise any
division or line of business of such Person or any other properties or assets of such Person other
than in the ordinary course of business.
“Asset Sale” means any direct or indirect sale, issuance, conveyance, lease (other
than operating leases entered into in the ordinary course of business), assignment or other
transfer (other than the granting of a Lien in accordance with this Indenture) for value by the
Company or any of the Restricted Subsidiaries (including any Sale and Leaseback Transaction) to any
Person other than the Company or a Restricted Subsidiary of (a) any Capital Stock of any Restricted
Subsidiary; or (b) any other property or assets of the Company
-2-
or any Restricted Subsidiary other than in the ordinary course of business; provided,
however, that Asset Sales shall not include:
(1) a transaction or series of related transactions for which the Company or the
Restricted Subsidiaries receive aggregate consideration of less than $15 million;
(2) the sale, lease, conveyance, disposition or other transfer of all or
substantially all of the assets of the Company as permitted by Section 5.01;
(3) any Restricted Payment made in accordance with Section 4.04;
(4) sales or contributions of accounts receivable and related assets pursuant to a
Permitted Receivables Financing made in accordance with Section 4.03; or
(5) sales of (i) obsolete and not practically usable or (ii) worn-out equipment.
“Bankruptcy Law” means Title 11, U.S. Code or any similar Federal, state or foreign
law for the relief of debtors.
“Board of Directors” means, as to any Person, the board of directors of such Person or
any duly authorized committee thereof.
“Board Resolution” means, with respect to any Person, a copy of a resolution certified
by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of
Directors of such Person and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
“
Business Day” means any day other than a Saturday, Sunday or any other day on which
banking institutions in The City of
New York or in the city in which the principal corporate trust
office of the Trustee is located, are required or authorized by law or other governmental action to
be closed.
“Capital Stock” means (1) with respect to any Person that is a corporation, any and
all shares, interests, participations or other equivalents (however designated and whether or not
voting) of corporate stock, including each class of Common Stock and Preferred Stock of such
Person, and (2) with respect to any Person that is not a corporation, any and all partnership or
other equity interests of such Person.
“Capitalized Lease Obligations” means, as to any Person, the obligations of such
Person under a lease that are required to be classified and accounted for as capital lease
obligations under GAAP and, for purposes of this definition, the amount of such obligations
-3-
at any date shall be the capitalized amount of such obligations at such date, determined in
accordance with GAAP.
“Cash Equivalents” means
(1) marketable direct obligations issued by, or unconditionally guaranteed by, the
United States Government or issued by any agency thereof and backed by the full faith and
credit of the United States, in each case maturing within one year from the date of
acquisition thereof;
(2) marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s;
(3) commercial paper maturing no more than one year from the date of creation
thereof and, at the time of acquisition, having a rating of at least A-2 from S&P or at
least P-2 from Moody’s;
(4) demand and time deposit accounts, certificates of deposit or bankers’
acceptances maturing within one year from the date of acquisition thereof issued by any bank
organized under the laws of the United States of America or any state thereof or the
District of Columbia or any U.S. branch of a foreign bank having at the date of acquisition
thereof combined capital and surplus of not less than $250 million;
(5) repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (1) above entered into with any bank meeting the
qualifications specified in clause (4) above;
(6) investments in money market funds which invest substantially all their assets
in securities of the types described in clauses (1) through (5) above;
(7) investments in money market funds subject to the risk limiting conditions of
Rule 2a-7 or any successor rule of the Commission under the Investment Company Act of 1940,
as amended; and
(8) solely in respect of the ordinary course cash management activities of the
Foreign Subsidiaries, equivalents of the investments described in clause (1) above to the
extent guaranteed by any member state of the European Union or the country in which the
Foreign Subsidiary operates and equivalents of the investments described in clause (4) above
issued, accepted or offered by any commercial bank organized under the laws of a member
state of the European Union or the jurisdiction of organization
-4-
of the applicable Foreign Subsidiary having at the date of acquisition thereof combined
capital and surplus of not less than $250 million.
“Cash Management Obligations” means, with respect to any Person, all obligations of
such Person in respect of overdrafts and related liabilities owed to any other Person that arise
from treasury, depositary or cash management services, including in connection with any automated
clearing house transfers of funds, or any similar transactions.
“Change of Control” means the occurrence of one or more of the following events:
(1) any sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all or substantially all of the assets of the Company to any Person
or group of related Persons for purposes of Section 13(d) of the Exchange Act (a
“Group”), together with any Affiliates thereof (whether or not otherwise in
compliance with the provisions of this Indenture);
(2) the approval by the holders of Capital Stock of the Company of any plan or
proposal for the liquidation or dissolution of the Company (whether or not otherwise in
compliance with the provisions of this Indenture);
(3) any Person or Group shall become the beneficial owner, directly or indirectly,
of shares representing more than 50% of the aggregate ordinary voting power represented by
the issued and outstanding Capital Stock of the Company; or
(4) during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors of the Company (together with any new
directors whose election by such Board of Directors or whose nomination for election by the
stockholders of the Company was approved pursuant to a vote of a majority of the directors
then still in office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of the Company then in office.
“Change of Control Offer” has the meaning set forth in Section 4.21.
“Change of Control Payment Date” has the meaning set forth in Section 4.21.
“Combined EBITDA” means, with respect to the Restricted Subsidiaries that are not
Guarantors (and are not a Finance Subsidiary or an Accounts Receivable Entity that is a Domestic
Restricted Subsidiary) (the “Combined Subsidiaries”), for any period, the sum (without
duplication) of:
-5-
(1) Combined Net Income; and
(2) to the extent Combined Net Income has been reduced thereby:
(A) all income taxes of the Combined Subsidiaries, paid or accrued in
accordance with GAAP for such period;
(B) Combined Interest Expense; and
(C) Combined Non-cash Charges;
less any non-cash items increasing Combined Net Income for such period, all as determined
on a combined basis for the Combined Subsidiaries in accordance with GAAP.
“Combined Fixed Charge Coverage Ratio” means, with respect to the Combined
Subsidiaries the ratio of Combined EBITDA during the four full fiscal quarters (the “Four
Quarter Period”) ending on or prior to the date of the transaction giving rise to the need to
calculate the Combined Fixed Charge Coverage Ratio (the “Transaction Date”) to Combined
Fixed Charges for the Four Quarter Period. In addition to and without limitation of the foregoing,
for purposes of this definition, “Combined EBITDA” and “Combined Fixed Charges” shall be calculated
after giving effect on a pro forma basis for the period of such calculation to:
(1) the incurrence or repayment of any Indebtedness of any of the Restricted
Subsidiaries that are not Guarantors (and are not a Finance Subsidiary or an Accounts
Receivable Entity that is a Domestic Restricted Subsidiary) (and the application of the
proceeds thereof) giving rise to the need to make such calculation and any incurrence or
repayment of other Indebtedness (and the application of the proceeds thereof), other than
the incurrence or repayment of Indebtedness in the ordinary course of business for working
capital purposes pursuant to working capital facilities, occurring during the Four Quarter
Period or at any time subsequent to the last day of the Four Quarter Period and on or prior
to the Transaction Date, as if such incurrence or repayment, as the case may be (and the
application of the proceeds thereof), occurred on the first day of the Four Quarter Period;
and
(2) any Asset Sales or other dispositions or Asset Acquisitions (including, without
limitation, any Asset Acquisition giving rise to the need to make such calculation as a
result of one of the Restricted Subsidiaries that are not Guarantors (and are not a Finance
Subsidiary or an Accounts Receivable Entity that is a Domestic Restricted Subsidiary)
(including any Person who becomes such a Restricted Subsidiary as a result of the Asset
Acquisition) incurring, assuming or otherwise being liable for Acquired Indebtedness and
also including any Combined EBITDA (provided that such Combined EBITDA shall be
included only to the extent includable pursuant to the
-6-
definition of “Combined Net Income”) attributable to the assets which are the subject of
the Asset Acquisition or Asset Sale or other disposition during the Four Quarter Period)
occurring during the Four Quarter Period or at any time subsequent to the last day of the
Four Quarter Period and on or prior to the Transaction Date as if such Asset Sale or Asset
Acquisition or other disposition (including the incurrence, assumption or liability for any
such Acquired Indebtedness) occurred on the first day of the Four Quarter Period.
If any of the Restricted Subsidiaries that are not Guarantors (and are not a Finance
Subsidiary or Accounts Receivable Entity that is a Domestic Restricted Subsidiary) directly or
indirectly guarantee Indebtedness of a third Person, the preceding sentence shall give effect to
the incurrence of such guaranteed Indebtedness as if the Restricted Subsidiary had directly
incurred or otherwise assumed such guaranteed Indebtedness. Furthermore, in calculating “Combined
Fixed Charges” for purposes of determining the denominator (but not the numerator) of this
“Combined Fixed Charge Coverage Ratio”:
(1) interest on outstanding Indebtedness determined on a fluctuating basis as of
the Transaction Date and which will continue to be so determined thereafter shall be deemed
to have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness
in effect on the Transaction Date;
(2) if interest on any Indebtedness actually incurred on the Transaction Date may
optionally be determined at an interest rate based upon a factor of a prime or similar rate,
a eurocurrency interbank offered rate, or other rates, then the interest rate in effect on
the Transaction Date will be deemed to have been in effect during the Four Quarter Period;
and
(3) notwithstanding clause (1) above, interest on Indebtedness determined on a
fluctuating basis, to the extent such interest is covered by agreements relating to Interest
Swap Obligations, shall be deemed to accrue at the rate per annum in effect on the
Transaction Date resulting after giving effect to the operation of such agreements on such
date.
“Combined Fixed Charges” means, with respect to the Restricted Subsidiaries that are
not Guarantors (and are not a Finance Subsidiary or an Accounts Receivable Entity that is a
Domestic Restricted Subsidiary) for any period, the sum, without duplication, of:
(1) Combined Interest Expense, plus
(2) the product of (x) the amount of all dividend payments on any series of
Preferred Stock of the Restricted Subsidiaries that are not Guarantors (other than Finance
Subsidiaries and Accounts Receivable Entities that are Domestic Restricted Subsidiaries)
paid, accrued and/or scheduled to be paid or accrued during such period
-7-
multiplied by (y) a fraction, the numerator of which is one and the denominator of
which is one minus the then current effective consolidated federal, state and local income
tax rate of the Company, expressed as a decimal.
“Combined Interest Expense” means, with respect to the Restricted Subsidiaries that
are not Guarantors (and are not a Finance Subsidiary or Accounts Receivable Entity that is a
Domestic Restricted Subsidiary) for any period, the sum of, without duplication:
(1) the aggregate of the interest expense of the Restricted Subsidiaries that are
not Guarantors (and are not a Finance Subsidiary or Accounts Receivable Entity that is a
Domestic Restricted Subsidiary) for such period determined on a combined basis in accordance
with GAAP, including without limitation,
(A) any amortization of debt discount,
(B) the net costs under Interest Swap Obligations,
(C) all capitalized interest, and
(D) the interest portion of any deferred payment obligation;
(2) the interest component of Capitalized Lease Obligations accrued by the
Restricted Subsidiaries that are not Guarantors (and are not a Finance Subsidiary or
Accounts Receivable Entity that is a Domestic Restricted Subsidiary) during such period as
determined on a consolidated basis in accordance with GAAP; and
(3) net losses relating to sales of accounts receivable pursuant to Permitted
Receivables Financings during such period as determined on a combined basis in accordance
with GAAP;
provided that Combined Interest Expense shall not include any of the foregoing to the
extent owing to the Company or any Restricted Subsidiary or to the extent owed by a Finance
Subsidiary or an Accounts Receivable Entity that is a Domestic Restricted Subsidiary.
“Combined Net Income” means, with respect to the Restricted Subsidiaries that are not
Guarantors (and are not Finance Subsidiaries or Accounts Receivable Entities that are Domestic
Restricted Subsidiaries), for any period, the aggregate net income (or loss) of the Restricted
Subsidiaries that are not Guarantors (and are not Finance Subsidiaries or Accounts Receivable
Entities that are Domestic Restricted Subsidiaries) for such period as determined on a combined
basis in accordance with GAAP; provided that there shall be excluded therefrom:
-8-
(1) after-tax gains and losses from Asset Sales or abandonments or reserves
relating thereto;
(2) extraordinary or non-recurring gains or losses (determined on an after-tax
basis);
(3) any non-cash compensation expense incurred for grants and issuances of stock
appreciation or similar rights, stock options, restricted shares or other rights to
officers, directors and employees of the Company and its Subsidiaries (including any such
grant or issuance to a 401(k) plan or other retirement benefit plan);
(4) the net income of any Person, other than a Restricted Subsidiary, except to the
extent of cash dividends or distributions paid to the Restricted Subsidiaries that are not
Guarantors (and are not Finance Subsidiaries or Accounts Receivable Entities that are
Domestic Restricted Subsidiaries) by such Person;
(5) any restoration to income of any contingency reserve, except to the extent that
provision for such reserve was made out of Combined Net Income accrued at any time following
March 31, 2003;
(6) income or loss attributable to discontinued operations (including, without
limitation, operations disposed of during such period whether or not such operations were
classified as discontinued) from and after the date that such operation is classified as
discontinued;
(7) write-downs resulting from the impairment of intangible assets;
(8) the amount of amortization or write-off of deferred financing costs and debt
issuance costs of the Company and its Restricted Subsidiaries during such period and any
premium or penalty paid in connection with redeeming or retiring Indebtedness of the Company
and its Restricted Subsidiaries prior to the stated maturity thereof pursuant to the
agreements governing such Indebtedness; and
(9) any restructuring charges incurred and disclosed in the Company’s audited
financial statements prepared in accordance with GAAP, together with any related provision
for taxes, in an aggregate amount since the Issue Date not to exceed $80.0 million.
“Combined Non-cash Charges” means, with respect to the Restricted Subsidiaries that
are not Guarantors (and are not Finance Subsidiaries or Accounts Receivable Entities that are
Domestic Restricted Subsidiaries), for any period, the aggregate depreciation, amortization and
other non-cash expenses of the Restricted Subsidiaries that are not Guarantors (and are not Finance
Subsidiaries or Accounts Receivable Entities that are Domestic
-9-
Restricted Subsidiaries) reducing Combined Net Income for such period, determined on a combined
basis in accordance with GAAP (excluding any such charge which requires an accrual of or a reserve
for cash charges for any future period).
“Combined Subsidiaries” has the meaning set forth in the definition of Combined
EBITDA.
“Commission” means the Securities and Exchange Commission, as from time to time
constituted, or if at any time after the execution of this Indenture such Commission is not
existing and performing the applicable duties now assigned to it, then the body or bodies
performing such duties at such time.
“Commodity Agreement” means any commodity futures contract, commodity option or other
similar agreement or arrangement entered into by the Company or any Restricted Subsidiary of the
Company designed to protect the Company or any of its Restricted Subsidiaries against fluctuations
in the price of the commodities at the time used in the ordinary course of business of the Company
or any of its Restricted Subsidiaries and not for speculative purposes.
“Common Stock” of any Person means any and all shares, interests or other
participations in, and other equivalents (however designated and whether voting or non-voting) of
such Person’s common stock, whether outstanding on the Issue Date or issued after the Issue Date,
and includes, without limitation, all series and classes of such common stock.
“Company” means the party named as such in this Indenture until a successor replaces
it pursuant to this Indenture and thereafter means such successor.
“Consolidated EBITDA” means, with respect to the Company, for any period, the sum
(without duplication) of:
(1) Consolidated Net Income; and
(2) to the extent Consolidated Net Income has been reduced thereby:
(1) all income taxes of the Company and the Restricted Subsidiaries
expensed or accrued in accordance with GAAP for such period;
(2) Consolidated Interest Expense; and
(3) Consolidated Non-cash Charges,
less any non-cash items increasing Consolidated Net Income for such period, all as
determined on a consolidated basis for the Company and the Restricted Subsidiaries in accordance
with GAAP.
-10-
“Consolidated Fixed Charge Coverage Ratio” means, with respect to the Company, the
ratio of Consolidated EBITDA of the Company during the Four Quarter Period ending on or prior to
the Transaction Date to Consolidated Fixed Charges of the Company for the Four Quarter Period. In
addition to and without limitation of the foregoing, for purposes of this definition, “Consolidated
EBITDA” and “Consolidated Fixed Charges” shall be calculated after giving effect on a pro
forma basis for the period of such calculation to:
(1) the incurrence or repayment of any Indebtedness of the Company or any of the
Restricted Subsidiaries (and the application of the proceeds thereof) giving rise to the
need to make such calculation and any incurrence or repayment of other Indebtedness (and the
application of the proceeds thereof), other than the incurrence or repayment of Indebtedness
in the ordinary course of business for working capital purposes pursuant to working capital
facilities, occurring during the Four Quarter Period or at any time subsequent to the last
day of the Four Quarter Period and on or prior to the Transaction Date, as if such
incurrence or repayment, as the case may be (and the application of the proceeds thereof),
occurred on the first day of the Four Quarter Period; and
(2) any Asset Sales or other dispositions or Asset Acquisitions (including, without
limitation, any Asset Acquisition giving rise to the need to make such calculation as a
result of the Company or one of the Restricted Subsidiaries (including any Person who
becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming or
otherwise being liable for Acquired Indebtedness and also including any Consolidated EBITDA
(provided that such Consolidated EBITDA shall be included only to the extent
includable pursuant to the definition of “Consolidated Net Income”) attributable to the
assets which are the subject of the Asset Acquisition or Asset Sale or other disposition
during the Four Quarter Period) occurring during the Four Quarter Period or at any time
subsequent to the last day of the Four Quarter Period and on or prior to the Transaction
Date as if such Asset Sale or Asset Acquisition or other disposition (including the
incurrence, assumption or liability for any such Acquired Indebtedness) occurred on the
first day of the Four Quarter Period.
If the Company or any of the Restricted Subsidiaries directly or indirectly guarantees
Indebtedness of a third Person, the preceding sentence shall give effect to the incurrence of such
guaranteed Indebtedness as if the Company or any Restricted Subsidiary had directly incurred or
otherwise assumed such guaranteed Indebtedness. Furthermore, in calculating “Consolidated Fixed
Charges” for purposes of determining the denominator (but not the numerator) of this “Consolidated
Fixed Charge Coverage Ratio”:
(1) interest on outstanding Indebtedness determined on a fluctuating basis as of
the Transaction Date and which will continue to be so determined thereafter shall
-11-
be deemed to have accrued at a fixed rate per annum equal to the rate of interest on
such Indebtedness in effect on the Transaction Date;
(2) if interest on any Indebtedness actually incurred on the Transaction Date may
optionally be determined at an interest rate based upon a factor of a prime or similar rate,
a eurocurrency interbank offered rate, or other rates, then the interest rate in effect on
the Transaction Date will be deemed to have been in effect during the Four Quarter Period;
and
(3) notwithstanding clause (1) above, interest on Indebtedness determined on a
fluctuating basis, to the extent such interest is covered by agreements relating to Interest
Swap Obligations, shall be deemed to accrue at the rate per annum in effect on the
Transaction Date resulting after giving effect to the operation of such agreements on such
date.
“Consolidated Fixed Charges” means, with respect to the Company for any period, the
sum, without duplication, of:
(1) Consolidated Interest Expense, plus
(2) the product of (x) the amount of all dividend payments on any series of
Preferred Stock of the Company (other than dividends paid in Qualified Capital Stock) or any
Restricted Subsidiary paid, accrued and/or scheduled to be paid or accrued during such
period multiplied by (y) a fraction, the numerator of which is one and the denominator of
which is one minus the then current effective consolidated federal, state and local income
tax rate of the Company, expressed as a decimal.
“Consolidated Interest Expense” means, with respect to the Company for any period, the
sum of, without duplication:
(1) the aggregate of the interest expense of the Company and the Restricted
Subsidiaries for such period determined on a consolidated basis in accordance with GAAP,
including, without limitation,
(A) any amortization of debt discount,
(B) the net costs under Interest Swap Obligations,
(C) all capitalized interest, and
(D) the interest portion of any deferred payment obligation;
-12-
(2) the interest component of Capitalized Lease Obligations accrued by the Company
and the Restricted Subsidiaries during such period as determined on a consolidated basis in
accordance with GAAP; and
(3) to the extent not included in clause (1) above, net losses relating to sales of
accounts receivable pursuant to Permitted Receivables Financings during such period as
determined on a consolidated basis in accordance with GAAP.
“Consolidated Net Income” means, with respect to the Company, for any period, the
aggregate net income (or loss) of the Company and the Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP; provided that there shall be
excluded therefrom:
(1) after-tax gains and losses from Asset Sales or abandonments or reserves
relating thereto;
(2) extraordinary or non-recurring gains or losses (determined on an after-tax
basis);
(3) any non-cash compensation expense incurred for grants and issuances of stock
appreciation or similar rights, stock options, restricted shares or other rights to
officers, directors and employees of the Company and its Subsidiaries (including any such
grant or issuance to a 401(k) plan or other retirement benefit plan);
(4) the net income (but not loss) of any Restricted Subsidiary to the extent that
the declaration of dividends or similar distributions by that Restricted Subsidiary of that
income is restricted by a contract, operation of law or otherwise;
(5) the net income of any Person, other than a Restricted Subsidiary, except to the
extent of cash dividends or distributions paid to the Company or to a Restricted Subsidiary
by such Person;
(6) any restoration to income of any contingency reserve, except to the extent that
provision for such reserve was made out of Consolidated Net Income accrued at any time
following March 31, 2003;
(7) income or loss attributable to discontinued operations (including, without
limitation, operations disposed of during such period whether or not such operations were
classified as discontinued) from and after the date that such operation is classified as
discontinued;
-13-
(8) in the case of a successor to the Company by consolidation or merger or as a
transferee of the Company’s assets, any earnings of the successor corporation prior to such
consolidation, merger or transfer of assets;
(9) write-downs resulting from the impairment of intangible assets;
(10) the amount of amortization or write-off of deferred financing costs and debt
issuance costs of the Company and its Restricted Subsidiaries during such period and any
premium or penalty paid in connection with redeeming or retiring Indebtedness of the Company
and its Restricted Subsidiaries prior to the stated maturity thereof pursuant to the
agreements governing such Indebtedness; and
(11) any restructuring charges incurred and disclosed in the Company’s audited
financial statements prepared in accordance with GAAP, together with any related provision
for taxes, in an aggregate amount since the Issue Date not to exceed $80.0 million.
“Consolidated Net Tangible Assets” means, as of any date of determination, the total
assets, less goodwill and other intangibles (other than patents, trademarks, copyrights, licenses
and other intellectual property), shown on the balance sheet of the Company and its Restricted
Subsidiaries for the most recently ended fiscal quarter for which financial statements are
available, determined on a consolidated basis in accordance with GAAP.
“Consolidated Non-cash Charges” means, with respect to the Company, for any period,
the aggregate depreciation, amortization and other non-cash expenses of the Company and the
Restricted Subsidiaries reducing Consolidated Net Income of the Company for such period, determined
on a consolidated basis in accordance with GAAP (excluding any such charge which requires an
accrual of or a reserve for cash payments for any future period).
“Consolidated Secured Debt Ratio” means, as of any date of determination, the ratio of
(a) Consolidated Total Indebtedness of the Company and the Restricted Subsidiaries that is secured
by Liens as of the end of the Four Quarter Period ending on or prior to the Transaction Date to (b)
the aggregate amount of Consolidated EBITDA of the Company during the Four Quarter Period ending on
or prior to the Transaction Date, in each case with such pro forma adjustments to Consolidated
Total Indebtedness and Consolidated EBITDA as are appropriate and consistent with the pro forma
adjustment provisions set forth in the definition of Consolidated Fixed Charge Coverage Ratio.
“Consolidated Total Debt Ratio” means, as of any date of determination, the ratio of
(a) Consolidated Total Indebtedness of the Company and the Restricted Subsidiaries as of the end of
the Four Quarter Period ending on or prior to the Transaction Date to (b) the aggregate amount of
Consolidated EBITDA of the Company during the Four Quarter Period
-14-
ending on or prior to the Transaction Date, in each case with such pro forma adjustments to
Consolidated Total Indebtedness and Consolidated EBITDA as are appropriate and consistent with the
pro forma adjustment provisions set forth in the definition of Consolidated Fixed Charge Coverage
Ratio.
“Consolidated Total Indebtedness” means, as at any date of determination, an amount
equal to the sum of (1) the aggregate amount of all outstanding Indebtedness of the Company and the
Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money,
Obligations in respect of Capitalized Lease Obligations and debt obligations evidenced by bonds,
notes, debentures or similar instruments or letters of credit or bankers’ acceptances (and
excluding (x) any undrawn letters of credit and (y) all obligations relating to Permitted
Receivables Financings) and (2) the aggregate amount of all outstanding Disqualified Capital Stock
of the Company and all Disqualified Capital Stock and Preferred Stock of the Restricted
Subsidiaries (excluding items eliminated in consolidation), with the amount of such Disqualified
Capital Stock and Preferred Stock equal to the greater of their respective voluntary or involuntary
liquidation preferences and Maximum Fixed Repurchase Prices, in each case determined on a
consolidated basis in accordance with GAAP.
For purposes hereof, the “Maximum Fixed Repurchase Price” of any Disqualified Capital
Stock or Preferred Stock that does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Disqualified Capital Stock or Preferred Stock as if such
Disqualified Capital Stock or Preferred Stock were purchased on the applicable date on which
Consolidated Total Indebtedness shall be required to be determined pursuant to this Indenture, and
if such price is based upon, or measured by, the fair market value of such Disqualified Capital
Stock or Preferred Stock, such fair market value shall be determined reasonably and in good faith
by the Company.
“Corporate Trust Department” means a principal corporate trust office of the Trustee
at which at any particular time its corporate trust business shall be administered, which office at
the date of this Indenture is located at 0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000 or such other address as the Trustee may designate from time to time by notice to the Holders
or the Company.
“Covenant Defeasance” has the meaning set forth in Section 8.01.
“Credit Agreement” means the Second Amended and Restated Credit Agreement, dated as of
March 16, 2007 (amending and restating the Amended and Restated Credit Agreement dated as of
December 12, 2003 (amending and restating the Credit Agreement dated as of September 30, 1999)) (as
amended and waived by the Amendment and Waiver dated as of July 23, 2007, the Second Amendment
dated as of November 26, 2007, the Third Amendment dated as of December 23, 2008, the Fourth
Amendment dated as of February 19, 2009, the Fifth Amendment dated as of June 3, 2010 and the Sixth
Amendment entered into as of November 23, 2010), among the Company, the Guarantors, the lenders
party thereto in
-15-
their capacities as lenders thereunder and JPMorgan Chase Bank, N.A., a national banking
association, as administrative agent, together with the documents related thereto (including,
without limitation, any guarantee agreements and security documents), in each case as such
agreements may be amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time in accordance with their terms (the “Existing Credit
Agreement”), including any agreement (a “Replacement Agreement”) extending the maturity of,
refinancing, replacing or otherwise restructuring (including increasing the amount of available
borrowings thereunder (provided that such increase in borrowings is permitted by Section
4.03 (including the definition of “Permitted Indebtedness”)) or adding Subsidiaries as additional
borrowers or guarantors thereunder) all or any portion of the Indebtedness under such agreement or
any successor or replacement agreement and whether by the same or any other agent, lender or group
of lenders.
“Credit Facilities” means one or more debt facilities (including the Credit Agreement)
or commercial paper facilities providing for revolving credit loans, term loans, receivables
financing (including through the sale of receivables to lenders or to special purpose entities
formed to borrow from lenders against such receivables) or letters of credit, or any debt
securities or other form of debt financing (including convertible or exchangeable debt
instruments), in each case, as amended, supplemented, modified, extended, renewed, restated or
refunded in whole or in part from time to time.
“Currency Agreement” means any foreign exchange contract, currency swap agreement or
other similar agreement or arrangement designed to protect the Company or any Restricted Subsidiary
against fluctuations in currency values.
“Custodian” means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.
“Default” means an event or condition the occurrence of which is, or with the lapse of
time or the giving of notice or both would be, an Event of Default.
“Defaulted Interest” has the meaning set forth in Section 6.11.
“Depository” means, with respect to the Securities issued in the form of one or more
Global Securities, The Depository Trust Company or another Person designated as Depository by the
Company, which must be a clearing agency registered under the Exchange Act.
“Designation” has the meaning set forth in Section 4.20.
“Designation Amount” has the meaning set forth in Section 4.20.
-16-
“Disqualified Capital Stock” means that portion of any Capital Stock which, by its
terms (or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is mandatorily exchangeable for Indebtedness, or is
redeemable or exchangeable for Indebtedness, at the sole option of the holder thereof on or prior
to the final maturity date of the Securities.
“Domestic Restricted Subsidiary” means a Restricted Subsidiary incorporated or
otherwise organized under the laws of the United States or any State thereof or the District of
Columbia.
“DTC” means The Depository Trust Company or any successor thereto.
“Equity Offering” has the meaning set forth in Paragraph 6 of the Securities.
“Event of Default” has the meaning provided in Section 6.01.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor
statute or statutes thereto, and the rules and regulations of the Commission promulgated
thereunder.
“Fair Market Value” means, with respect to any asset or property, the price which
could be negotiated in an arm’s-length, free market transaction, for cash, between a willing seller
and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the
transaction. Fair Market Value shall be determined by the Board of Directors of the Company acting
reasonably and in good faith and shall be evidenced by a Board Resolution of the Board of Directors
of the Company.
“Final Maturity Date” means December 15, 2020.
“Finance Subsidiary” means a Restricted Subsidiary that is organized solely for the
purpose of owning Indebtedness of the Company and/or other Restricted Subsidiaries and issuing
securities the proceeds of which are utilized by the Company and/or other Restricted Subsidiaries,
and which engages only in such activities and activities incident thereto.
“Foreign Restricted Subsidiary” means any Restricted Subsidiary that is organized and
existing under the laws of a jurisdiction other than the United States, any State thereof or the
District of Columbia.
“Foreign Subsidiary” means any Subsidiary that is organized and existing under the
laws of a jurisdiction other than the United States, any State thereof or the District of Columbia.
-17-
“Four Quarter Period” has the meaning provided in the definition of “Combined Fixed
Charge Coverage Ratio” above.
“Funding Guarantor” has the meaning provided in Section 10.05.
“GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant segment of the
accounting profession of the United States, which are in effect as of the Issue Date.
“Global Security” means a security evidencing all or a part of the Securities issued
to the Depository in accordance with Section 2.01 and bearing the legend prescribed in Exhibit
C.
“Guarantee” has the meaning set forth in Section 4.18.
“Guaranteed Indebtedness” has the meaning set forth in Section 4.18.
“Guarantor” means (1) each Wholly Owned Domestic Restricted Subsidiary of the Company
(other than any Immaterial Domestic Subsidiaries, Accounts Receivable Entities and Finance
Subsidiaries) as of the Issue Date and (2) each other Restricted Subsidiary that in the future is
required to or executes a Subsidiary Guarantee pursuant to Section 4.18 or otherwise;
provided that any Person constituting a Guarantor as described above shall cease to
constitute a Guarantor when its Subsidiary Guarantee is released in accordance with the terms of
this Indenture.
“Hedging Obligations” means, with respect to any Person, the obligations of such
Person in respect of (a) interest rate or currency swap agreements, interest rate or currency cap
agreements, interest rate or currency collar agreements or (b) other agreements or arrangements
designed to protect such Person against fluctuations in interest rates and/or currency exchange
rates.
“Holder” or “Securityholder” means a Person in whose name a Security is
registered on the Registrar’s books.
“Immaterial Domestic Subsidiaries” means at any time, any Domestic Restricted
Subsidiary of the Company having total assets (as determined in accordance with GAAP) in an amount
of less than 1% of the consolidated total assets of the Company and its Domestic Restricted
Subsidiaries (as determined in accordance with GAAP); provided, however, that the
total assets (as so determined) of all Immaterial Domestic Subsidiaries shall not exceed 5% of
consolidated total assets of the Company and its Domestic Restricted Subsidiaries
-18-
(as so determined). In the event that the total assets of all Immaterial Domestic
Subsidiaries exceed 5% of consolidated total assets of the Company and its Domestic Restricted
Subsidiaries, the Company will designate Domestic Restricted Subsidiaries that would otherwise be
Immaterial Domestic Subsidiaries to be excluded as Immaterial Domestic Subsidiaries until such 5%
threshold is met. Notwithstanding the foregoing, no Domestic Restricted Subsidiary that guarantees
the Credit Agreement or any obligation thereunder shall be deemed an Immaterial Domestic
Subsidiary.
“incur” has the meaning provided in Section 4.03.
“Indebtedness” means, with respect to any Person, without duplication:
(1) all Obligations of such Person for borrowed money;
(2) all Obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(3) all Capitalized Lease Obligations of such Person;
(4) all Obligations of such Person issued or assumed as the deferred purchase price
of property, all conditional sale obligations and all Obligations under any title retention
agreement (but excluding trade accounts payable and other accrued liabilities arising in the
ordinary course of business that are not overdue by 90 days or more or are being contested
in good faith by appropriate proceedings promptly instituted and diligently conducted);
(5) all Obligations for the reimbursement of any obligor on any letter of credit,
banker’s acceptance or similar credit transaction;
(6) guarantees and other contingent obligations in respect of Indebtedness of any
other Person referred to in clauses (1) through (5) above and clauses (8) and (10) below;
(7) all Obligations of any other Person of the type referred to in clauses (1)
through (6) above which are secured by any Lien on any property or asset of such Person, the
amount of such Obligation being deemed to be the lesser of the Fair Market Value of such
property or asset or the amount of the Obligation so secured;
(8) all Obligations under currency agreements and interest swap agreements of such
Person;
(9) all Disqualified Capital Stock of the Company and all Preferred Stock of a
Restricted Subsidiary with the amount of Indebtedness represented by such
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Disqualified Capital Stock or Preferred Stock being equal to the greater of its voluntary
or involuntary liquidation preference and its maximum fixed repurchase price, but excluding
accrued and unpaid dividends, if any; and
(10) all Outstanding Permitted Receivables Financings.
For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Capital Stock or
Preferred Stock which does not have a fixed repurchase price shall be calculated in accordance with
the terms of such Disqualified Capital Stock or Preferred Stock as if such Disqualified Capital
Stock or Preferred Stock were purchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture, and if such price is based upon, or measured by, the Fair
Market Value of such Disqualified Capital Stock or Preferred Stock, such Fair Market Value shall be
determined reasonably and in good faith by the Board of Directors of the issuer of such
Disqualified Capital Stock or Preferred Stock.
“Indenture” means this Indenture, as amended or supplemented from time to time in
accordance with the terms hereof.
“Independent” when used with respect to any specified Person means such a Person who
(a) is in fact independent; (b) does not have any direct financial interest or any material
indirect financial interest in the Company or any of its Subsidiaries, or in any Affiliate of the
Company or any of its Subsidiaries; and (c) is not an officer, employee, promoter, underwriter,
trustee, partner, director or Person performing similar functions for the Company or any of its
Subsidiaries. Whenever it is provided in this Indenture that any Independent Person’s opinion or
certificate shall be furnished to the Trustee, such Person shall be appointed by the Company, and
such opinion or certificate shall state that the signer has read this definition and that the
signer is Independent within the meaning hereof.
“Independent Financial Advisor” means a firm (1) which does not, and whose directors,
officers and employees and Affiliates do not, have a direct or indirect material financial interest
in the Company and (2) which, in the judgment of the Board of Directors of the Company, is
otherwise independent and qualified to perform the task for which it is to be engaged.
“Initial Purchasers” means (i) with respect to the Securities issued on the Issue
Date, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Citigroup Global Markets Inc., Deutsche
Bank Securities Inc., X.X. Xxxxxx Securities LLC, Xxxxxx Xxxxxxx & Co. Incorporated, RBS Securities
Inc., Xxxxx Fargo Securities, LLC, BNY Mellon Capital Markets, LLC, Capital One Southcoast, Inc.,
Commerz Markets LLC, Fifth Third Securities, Inc., Lazard Capital Markets LLC, PNC Capital Markets
LLC, Scotia Capital (USA) Inc. and U.S. Bancorp Investments, Inc. and (ii) with respect to each
issuance of additional notes, if any, the Persons purchasing securities from the Company pursuant
to the related Purchase Agreement.
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“Insolvency or Liquidation Proceeding” means, with respect to any Person, (a) any
voluntary or involuntary case or proceeding under any Bankruptcy Law, (b) any other voluntary or
involuntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding with respect to such Person or with
respect to any of its assets, (c) any liquidation, dissolution, reorganization or winding up of
such Person whether voluntary or involuntary and whether or not involving insolvency or bankruptcy
or (d) any assignment for the benefit of creditors or any other marshaling of assets and
liabilities of such Person.
“Institutional Accredited Investor” means an institution that is an “accredited
investor” as that term is defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
“Interest Payment Date” means the stated maturity of an installment of interest on the
Securities.
“Interest Swap Obligations” means the obligations of the Company and the Restricted
Subsidiaries pursuant to any arrangement with any other Person, whereby, directly or indirectly,
the Company or any Restricted Subsidiary is entitled to receive from time to time periodic payments
calculated by applying either a floating or a fixed rate of interest on a stated notional amount in
exchange for periodic payments made by such other Person calculated by applying a fixed or a
floating rate of interest on the same notional amount and shall include, without limitation,
interest rate lock obligations, interest rate swaps, caps, floors, collars and similar agreements.
“Investment” means, with respect to any Person, any direct or indirect loan or other
extension of credit (including, without limitation, a guarantee) or capital contribution to (by
means of any transfer of cash or other property to others or any payment for property or services
for the account or use of others), or any purchase or acquisition by such Person of any Capital
Stock, bonds, notes, debentures or other securities or evidences of Indebtedness issued by, any
other Person. “Investment” shall exclude extensions of trade credit by the Company and the
Restricted Subsidiaries on commercially reasonable terms in accordance with normal trade practices
of the Company or such Restricted Subsidiaries, as the case may be. If the Company or any
Restricted Subsidiary sells or otherwise disposes of any Capital Stock of any Restricted Subsidiary
(the “Referent Subsidiary”) such that, after giving effect to any such sale or disposition,
the Referent Subsidiary shall cease to be a Restricted Subsidiary, the Company shall be deemed to
have made an Investment on the date of any such sale or disposition equal to the Fair Market Value
of the Capital Stock of the Referent Subsidiary not sold or disposed of.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the
equivalent) by Moody’s and BBB- (or the equivalent) by S&P (or the equivalent rating by any
Successor Rating Agency).
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“Issue Date” means December 23, 2010, the date of initial issuance of the Securities.
“Legal Defeasance” has the meaning set forth in Section 8.01.
“Lien” means any lien, mortgage, deed of trust, deed to secure debt, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof and any agreement to give any security
interest).
“Moody’s” means Xxxxx’x Investors Service, Inc. or any successor to its rating agency
business.
“Net Cash Proceeds” means, with respect to any Asset Sale, the proceeds in the form of
cash or Cash Equivalents, including payments in respect of deferred payment obligations when
received in the form of cash or Cash Equivalents (other than the portion of any such deferred
payment constituting interest), received by the Company or any of the Restricted Subsidiaries from
such Asset Sale net of:
(1) reasonable out-of-pocket expenses and fees relating to such Asset Sale
(including, without limitation, legal, accounting and investment banking fees, sales
commissions and relocation expenses);
(2) taxes paid or payable after taking into account any reduction in consolidated
tax liability due to available tax credits or deductions and any tax sharing arrangements;
(3) repayments of Indebtedness secured by the property or assets subject to such
Asset Sale that is required to be repaid in connection with such Asset Sale; and
(4) appropriate amounts to be determined by the Company or any Restricted
Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against any
liabilities associated with such Asset Sale and retained by the Company or any Restricted
Subsidiary, as the case may be, after such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with such Asset
Sale.
“Net Proceeds Offer” has the meaning set forth in Section 4.12.
“Net Proceeds Offer Amount” has the meaning set forth in Section 4.12.
“Net Proceeds Offer Payment Date” has the meaning set forth in Section 4.12.
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“Net Proceeds Offer Trigger Date” has the meaning set forth in Section 4.12.
“Obligations” means any and all obligations with respect to the payment of (a) any
principal of or interest (including interest accruing on or after the commencement of any
Insolvency or Liquidation Proceedings, whether or not a claim for post-filing interest is allowed
in such proceeding) or premium on any Indebtedness, including any reimbursement obligation in
respect of any letter of credit, (b) any fees, indemnification obligations, damages, expense
reimbursement obligations or other liabilities payable under the documentation governing any
Indebtedness, (c) any obligation to post cash collateral in respect of letters of credit and any
other obligations and (d) any Cash Management Obligations or Hedging Obligations.
“Offering Memorandum” means the offering memorandum of the Company dated December 9,
2010 related to the Securities.
“Officer” means, with respect to any Person, the Chairman of the Board, the Chief
Executive Officer, the President, any Vice President and the Chief Financial Officer of such
Person.
“Officers’ Certificate” means a certificate signed by an Officer of the Company and
another Officer or the secretary, treasurer or controller of the Company.
“Offshore Physical Securities” has the meaning provided in Section 2.01.
“Opinion of Counsel” means a written opinion acceptable to the Trustee from legal
counsel who may be an employee of the Company.
“Outstanding Permitted Receivables Financings” means the aggregate amount of the
receivables sold, contributed or financed pursuant to a Permitted Receivables Financing that remain
uncollected at any one time. For the avoidance of doubt, regardless of the accounting treatment
under GAAP, it is understood that the amount financed pursuant to a Permitted Receivables Financing
is the aggregate amount of capital funded by the purchasers (other than an Accounts Receivable
Entity) thereunder and outstanding at the time of determination.
“Participants” has the meaning provided in Section 2.15.
“Paying Agent” has the meaning provided in Section 2.03.
“Payment Default” has the meaning provided in Section 6.01.
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“Permitted Indebtedness” means, without duplication, each of the following:
(1) Indebtedness under the Securities, this Indenture and any Subsidiary Guarantees
outstanding on the Issue Date;
(2) Indebtedness incurred pursuant to the Credit Agreement (or, in the case of
clause (2)(x) below, pursuant to a Credit Facility) in an aggregate principal amount at any
time outstanding not to exceed the greater of:
(x) $1,250 million (reduced by any required permanent repayments with the
proceeds of Asset Sales (which are accompanied by a corresponding permanent
commitment reduction) thereunder); and
(y) the sum of (A) 85% of the net book value of the accounts receivable of
the Company and the Restricted Subsidiaries and (B) 50% of the net book value of the
inventory of the Company and the Restricted Subsidiaries;
(3) other Indebtedness of the Company and the Restricted Subsidiaries outstanding
on the Issue Date reduced by the amount of any scheduled amortization payments or mandatory
prepayments when actually paid or permanent reductions are made thereon;
(4) Interest Swap Obligations of the Company covering Indebtedness of the Company
or any Guarantor and Interest Swap Obligations of any Restricted Subsidiary covering
Indebtedness of such Restricted Subsidiary; provided, however, that such
Interest Swap Obligations are entered into to protect the Company and the Restricted
Subsidiaries from fluctuations in interest rates on Indebtedness incurred in accordance with
this Indenture to the extent the notional principal amount of such Interest Swap Obligations
does not exceed the principal amount of the Indebtedness to which such Interest Swap
Obligations relate;
(5) Indebtedness under Currency Agreements and Commodity Agreements,
provided that in the case of Currency Agreements which relate to Indebtedness, such
Currency Agreements do not increase the Indebtedness of the Company and the Restricted
Subsidiaries outstanding other than as a result of fluctuations in foreign currency exchange
rates or by reason of fees, indemnities and compensation payable thereunder;
(6) Indebtedness of a Restricted Subsidiary of the Company to the Company or to a
Restricted Subsidiary of the Company for so long as such Indebtedness is held by the
Company, a Restricted Subsidiary of the Company or the lenders or collateral agent under any
agreement governing secured Indebtedness permitted to be
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incurred under Sections 4.03 and 4.15, in each case subject to no Lien held by a Person
other than the Company, a Restricted Subsidiary of the Company or the lenders or collateral
agent under any agreement governing secured Indebtedness permitted to be incurred under
Sections 4.03 and 4.15; provided that if as of any date any Person other than the
Company, a Restricted Subsidiary of the Company or the lenders or collateral agent under any
agreement governing secured Indebtedness permitted to be incurred under Sections 4.03 and
4.15, owns or holds any such Indebtedness or holds a Lien in respect of such Indebtedness,
such date shall be deemed the incurrence of Indebtedness not constituting Permitted
Indebtedness under this clause (6) by the issuer of such Indebtedness; |
(7) Indebtedness of the Company to a Restricted Subsidiary of the Company for so
long as such Indebtedness is held by a Restricted Subsidiary of the Company or the lenders
or the collateral agent under any agreement governing secured Indebtedness permitted to be
incurred under Sections 4.03 and 4.15, and is subject to no Lien other than a Lien in favor
of the lenders or collateral agent under any agreement governing secured Indebtedness
permitted to be incurred under Sections 4.03 and 4.15; provided that (a) any
Indebtedness of the Company to any Restricted Subsidiary of the Company is unsecured and,
except in the case of Indebtedness owed to Foreign Subsidiaries, subordinated, pursuant to a
written agreement to the Company’s obligations under this Indenture and the Securities and
(b) if as of any date any Person other than a Restricted Subsidiary of the Company owns or
holds any such Indebtedness or any Person holds a Lien other than a Lien in favor of the
lenders or collateral agent under any agreement governing secured Indebtedness permitted to
be incurred under Sections 4.03 and 4.15, such date shall be deemed the incurrence of
Indebtedness not constituting Permitted Indebtedness under this clause (7) by the Company;
(8) Indebtedness arising from the honoring by a bank or other financial institution
of a check, draft or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of business;
provided, however, that such Indebtedness is extinguished within five
Business Days after incurrence;
(9) Indebtedness of the Company or any of the Restricted Subsidiaries represented
by letters of credit for the account of the Company or any such Restricted Subsidiary, as
the case may be, in order to provide security for workers’ compensation claims, payment
obligations in connection with self-insurance or similar requirements in the ordinary course
of business;
(10) Refinancing Indebtedness;
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(11) additional Indebtedness of the Company and the Restricted Subsidiaries in an
aggregate principal amount not to exceed $250.0 million at any one time outstanding;
(12) additional Indebtedness of Foreign Subsidiaries of the Company in an aggregate
principal amount not to exceed 125.0 million Euros at any one time outstanding;
(13) Purchase Money Indebtedness and Capitalized Lease Obligations (and any
Indebtedness incurred to Refinance such Purchase Money Indebtedness or Capitalized Lease
Obligations) not to exceed 10% of Consolidated Net Tangible Assets at any one time
outstanding;
(14) Outstanding Permitted Receivables Financings; and
(15) any Guarantee by the Company or a Guarantor of any Indebtedness of the Company
or a Restricted Subsidiary that was permitted to be incurred by the Company or such
Restricted Subsidiary under the terms of this Indenture at the time so incurred.
If any Indebtedness incurred by the Company or any Restricted Subsidiary would qualify in more
than one of the categories of Permitted Indebtedness as set forth in clauses (1) through (15) of
this definition, or is entitled to be incurred pursuant to the first paragraph under Section 4.03,
the Company may classify under which category such incurrence shall be deemed to have been made or,
for the avoidance of doubt, later reclassify all or a portion of such item of Indebtedness, in any
manner that complies with Section 4.03 (including this definition); provided that Indebtedness
under the Credit Facilities outstanding on the Issue Date will be deemed to have been incurred in
reliance on the exception provided by clause (1) of this definition of “Permitted Indebtedness” and
may not be reclassified.
“Permitted Investments” means:
(1) Investments by the Company or any Restricted Subsidiary in any Person that is
or will become immediately after such Investment a Restricted Subsidiary or that will merge
or consolidate into the Company or a Restricted Subsidiary;
(2) Investments in the Company by any Restricted Subsidiary; provided that
any Indebtedness evidencing such Investment is unsecured;
(3) Investments in cash and Cash Equivalents;
(4) loans and advances to employees, officers and directors of the Company and the
Restricted Subsidiaries in the ordinary course of business for bona fide
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business purposes not in excess of an aggregate of $25.0 million at any one time
outstanding;
(5) Commodity Agreements, Currency Agreements and Interest Swap Obligations entered
into in the ordinary course of the Company’s or a Restricted Subsidiary’s businesses and
otherwise in compliance with this Indenture;
(6) Investments in securities of trade creditors or customers received pursuant to
any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such
trade creditors or customers or in settlement of delinquent accounts;
(7) Investments made by the Company or the Restricted Subsidiaries as a result of
consideration received in connection with an Asset Sale made in compliance with Section
4.12;
(8) Investments (measured on the date each such Investment was made and without
giving effect to subsequent changes in value) in Persons, including, without limitation,
Unrestricted Subsidiaries and joint ventures, engaged in a business similar or related to or
logical extensions of the businesses in which the Company and the Restricted Subsidiaries
are engaged on the Issue Date, not to exceed 7.5% of Consolidated Net Tangible Assets at the
time of such Investment, at any one time outstanding;
(9) Investments (measured on the date each such Investment was made and without
giving effect to subsequent changes in value) not to exceed 7.5% of Consolidated Net
Tangible Assets at the time of such Investment, at any one time outstanding; and
(10) Investments in an Accounts Receivable Entity.
“Permitted Liens” means the following types of Liens:
(1) Liens for taxes, assessments or governmental charges or claims either (A) not
delinquent or (B) contested in good faith by appropriate proceedings and, in each case, as
to which the Company or any Restricted Subsidiary shall have set aside on its books such
reserves as may be required pursuant to GAAP;
(2) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen and other Liens imposed by law incurred in the ordinary
course of business for sums not yet delinquent or being contested in good faith, if such
reserve or other appropriate provision, if any, as shall be required by GAAP shall have been
made in respect thereof;
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(3) Liens on property or shares of Capital Stock of another Person at the time such
other Person becomes a Subsidiary of such Person and not incurred in connection with or in
contemplation thereof; provided, however, that the Liens may not extend to
any other property owned by such Person or any of its Restricted Subsidiaries (and assets
and property affixed or appurtenant thereto);
(4) Liens on property at the time such Person or any of its Subsidiaries acquires the
property and not incurred in connection with or in contemplation thereof, including any
acquisition by means of a merger or consolidation with or into such Person or a Subsidiary
of such Person; provided, however, that the Liens may not extend to any
other property owned by such Person or any of its Restricted Subsidiaries (and assets and
property affixed or appurtenant thereto);
(5) leases or subleases granted in the ordinary course of business;
(6) any interest or title of a lessor under any lease;
(7) Liens arising out of consignments or similar arrangements for the sale of goods in
the ordinary course of business;
(8) Liens incurred or deposits made in the ordinary course of business in connection
with workers’ compensation, unemployment insurance and other types of social security,
including any Lien securing letters of credit issued in the ordinary course of business
consistent with past practice in connection therewith, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases, contracts,
performance and return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(9) judgment Liens not giving rise to an Event of Default so long as such Lien is
adequately bonded and any appropriate legal proceedings which may have been duly initiated
for the review of such judgment shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have expired;
(10) easements, rights-of-way, zoning restrictions and other similar charges or
encumbrances in respect of real property not impairing in any material respect the ordinary
conduct of the business of the Company or any of the Restricted Subsidiaries;
(11) any interest or title of a lessor under any Capitalized Lease Obligation;
provided that such Liens do not extend to any property or asset which is not leased
property subject to such Capitalized Lease Obligation;
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(12) purchase money Liens securing Indebtedness incurred to finance property or assets
of the Company or any Restricted Subsidiary acquired in the ordinary course of business, and
Liens securing Indebtedness which Refinances any such Indebtedness; provided,
however, that (A) the related Purchase Money Indebtedness (or Refinancing
Indebtedness) shall not exceed the cost of such property or assets and shall not be secured
by any property or assets of the Company or any Restricted Subsidiary other than the
property and assets so acquired (and assets affixed or appurtenant thereto) and (B) the Lien
securing the Purchase Money Indebtedness shall be created within 180 days after such
acquisition;
(13) Liens upon specific items of inventory or other goods and proceeds of any Person
securing such Person’s obligations in respect of bankers’ acceptances issued or created for
the account of such Person to facilitate the purchase, shipment or storage of such inventory
or other goods;
(14) Liens securing reimbursement obligations with respect to commercial letters of
credit which encumber documents and other property relating to such letters of credit and
products and proceeds thereof;
(15) Liens encumbering deposits made to secure obligations arising from statutory,
regulatory, contractual or warranty requirements of the Company or any of the Restricted
Subsidiaries, including rights of offset and set-off;
(16) Liens securing Interest Swap Obligations which Interest Swap Obligations relate to
Indebtedness that is otherwise permitted under this Indenture;
(17) Liens securing Indebtedness and other Obligations under Commodity Agreements,
Currency Agreements and Cash Management Obligations, in each case permitted under this
Indenture;
(18) Liens securing Acquired Indebtedness (and any Indebtedness which Refinances such
Acquired Indebtedness) incurred in accordance with Section 4.03; provided that (A)
such Liens secured the Acquired Indebtedness at the time of and prior to the incurrence of
such Acquired Indebtedness by the Company or a Restricted Subsidiary and were not granted in
connection with, or in anticipation of the incurrence of such Acquired Indebtedness by the
Company or a Restricted Subsidiary and (B) such Liens do not extend to or cover any property
or assets of the Company or of any of the Restricted Subsidiaries other than the property or
assets that secured the Acquired Indebtedness prior to the time such Indebtedness became
Acquired Indebtedness of the Company or a Restricted Subsidiary;
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(19) Liens securing Indebtedness of Foreign Restricted Subsidiaries incurred in
accordance with this Indenture; provided that such Liens do not extend to any
property or assets other than property or assets of Foreign Restricted Subsidiaries;
(20) Liens incurred in connection with a Permitted Receivables Financing; and
(21) Liens incurred to secure Obligations in respect of any Indebtedness permitted to
be incurred pursuant to Section 4.03; provided that, at the time of incurrence and
after giving pro forma effect thereto, the Consolidated Secured Debt Ratio would be no
greater than 2.50:1.00.
“Permitted Receivables Financing” means any sale or contribution by the Company or a
Restricted Subsidiary of accounts receivable and related assets intended to be (and which shall be
treated for purposes of this Indenture as) a true sale transaction with customary limited recourse
based upon the collectibility of the receivables and related assets sold and the corresponding sale
or pledge of such accounts receivable and related assets (or an interest therein), in each case
without any guarantee (excluding guarantees of obligations (other than of collectibility of
receivables transferred or of Indebtedness) pursuant to representations, warranties, covenants and
indemnities customary for such transactions), by the Company or any Restricted Subsidiary other
than an Accounts Receivable Entity.
“Person” means an individual, partnership, corporation, unincorporated organization,
trust or joint venture, or a governmental agency or political subdivision thereof.
“Physical Securities” has the meaning provided in Section 2.01.
“Preferred Stock” of any Person means any Capital Stock of such Person that has
preferential rights to any other Capital Stock of such Person with respect to dividends or
redemptions or upon liquidation.
“Presenting Agent” has the meaning set forth in Section 2.03.
“Private Placement Legend” means the legend initially set forth on the Securities in
the form set forth on Exhibit A.
“pro forma” means, with respect to any calculation made or required to be made
pursuant to the terms of this Indenture, a calculation in accordance with Article 11 of Regulation
S-X under the Securities Act as interpreted by the Company’s Board of Directors in consultation
with its Independent certified public accountants.
“Purchase Agreement” means (1) with respect to the Securities issued on the Issue
Date, the Purchase Agreement, dated as of December 9, 2010, by and among the Company,
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the Guarantors and the Initial Purchasers, and (2) with respect to each issuance of
Additional Securities, if any, the purchase agreement or underwriting agreement among the Company,
the Guarantors and the Initial Purchasers.
“Purchase Money Indebtedness” means Indebtedness of the Company or any Restricted
Subsidiary incurred for the purpose of financing all or any part of the purchase price or the cost
of an Asset Acquisition or construction or improvement of any property; provided that the
aggregate principal amount of such Indebtedness does not exceed such purchase price or cost.
“Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital
Stock.
“Qualified Institutional Buyer” or “QIB” shall have the meaning specified in
Rule 144A under the Securities Act.
“Rating Agencies” means Moody’s and S&P; provided that if S&P, Moody’s or any
Successor Rating Agency (as defined below) shall cease to be in the business of providing rating
services for debt securities generally, the Company shall be entitled to replace any such Rating
Agency or Successor Rating Agency, as the case may be, which has ceased to be in the business of
providing rating services for debt securities generally with a security rating agency which is in
the business of providing rating services for debt securities generally and which is nationally
recognized in the United States (such rating agency, a “Successor Rating Agency”).
“Record Date” means the Record Dates specified in the Securities; provided
that if any such date is not a Business Day, the Record Date shall be the first day immediately
preceding such specified day that is a Business Day.
“Redemption Date,” when used with respect to any Security to be redeemed, means the
date fixed for such redemption pursuant to this Indenture and the Securities.
“Redemption Price,” when used with respect to any Security to be redeemed, means the
price fixed for such redemption, payable in immediately available funds, pursuant to this Indenture
and the Securities.
“Reference Date” has the meaning set forth in Section 4.04.
“Refinance” means in respect of any security or Indebtedness, to refinance, extend,
renew, refund, repay, prepay, redeem, defease or retire, or to issue a security or Indebtedness in
exchange or replacement for, such security or Indebtedness in whole or in part.
“Refinanced” and “Refinancing” shall have correlative meanings.
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“Refinancing Indebtedness” means any Refinancing by the Company or any Restricted
Subsidiary of Indebtedness incurred in accordance with Section 4.03 (other than pursuant to clause
(2), (4), (5), (6), (7), (8), (9), (11), (12), (13) or (14) of the definition of “Permitted
Indebtedness”), in each case that does not:
(1) result in an increase in the aggregate principal amount of any Indebtedness of such
Person as of the date of the completion of all components of such proposed Refinancing
(provided such completion occurs within 60 days of the initial incurrence of Indebtedness in
connection with such Refinancing) (plus the amount of any premium reasonably necessary to
Refinance such Indebtedness and plus the amount of reasonable expenses incurred by the
Company in connection with such Refinancing); or
(2) create Indebtedness with (A) a Weighted Average Life to Maturity that is less than
the Weighted Average Life to Maturity of the Indebtedness being Refinanced or (B) a final
maturity earlier than the final maturity of the Indebtedness being Refinanced;
provided that (x) if such Indebtedness being Refinanced is Indebtedness of the Company
and/or a Guarantor, then such Refinancing Indebtedness shall be Indebtedness solely of the Company
and/or such Guarantor and (y) if such Indebtedness being Refinanced is subordinate or junior to the
Securities or any Guarantee, then such Refinancing Indebtedness shall be subordinate to the
Securities or such Guarantee, as the case may be, at least to the same extent and in the same
manner as the Indebtedness being Refinanced.
“Registrar” has the meaning provided in Section 2.03.
“Registration Rights Agreement” means (1) with respect to the Securities issued on the
Issue Date, the Registration Rights Agreement, dated December 23, 2010 among the Company, the
Guarantors and the Initial Purchasers, and (2) with respect to any issuance of Additional
Securities issued in a transaction exempt from the registration requirements of the Securities Act,
the registration rights agreement, if any, among the Company, the Guarantors and the Initial
Purchasers under the related Purchase Agreement.
“Regulation S” means Regulation S under the Securities Act.
“Replacement Assets” means assets and property that will be used in the business of
the Company and/or its Restricted Subsidiaries as existing on the Issue Date or in a business the
same, similar or reasonably related thereto (including Capital Stock of a Person which becomes a
Restricted Subsidiary).
“Responsible Officer” shall mean, when used with respect to the Trustee, any officer
in the Corporate Trust Department of the Trustee including any vice president, assistant
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vice
president 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, and to whom any
corporate trust matter is referred because of such officer’s knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the administration of this
Indenture.
“Restricted Payment” has the meaning set forth in Section 4.04.
“Restricted Security” has the meaning set forth in Rule 144(a)(3) under the Securities
Act; provided that the Trustee shall be entitled to request and conclusively rely upon an
Opinion of Counsel with respect to whether any Security is a Restricted Security.
“Restricted Subsidiary” means any Subsidiary of the Company that has not been
designated by the Board of Directors of the Company, by a Board Resolution delivered to the
Trustee, as an Unrestricted Subsidiary pursuant to and in compliance with Section 4.20. Any such
Designation may be revoked by a Board Resolution of the Company delivered to the Trustee, subject
to the provisions of such covenant.
“Reversion Date” has the meaning set forth in Section 4.22.
“Revocation” has the meaning set forth in Section 4.20.
“Rule 144A” means Rule 144A under the Securities Act.
“S&P” means Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., or any successor to its rating agency business.
“Sale and Leaseback Transaction” means any direct or indirect arrangement with any
Person or to which any such Person is a party, providing for the leasing to the Company or a
Restricted Subsidiary of any property, whether owned by the Company or any Restricted Subsidiary at
the Issue Date or later acquired, which has been or is to be sold or transferred by the Company or
such Restricted Subsidiary to such Person or to any other Person from whom funds have been or are
to be advanced on the security of such Property.
“Securities” means the Series A Securities and the Series B Securities treated as a
single class of securities, as amended or supplemented from time to time in accordance with the
terms hereof, that are issued pursuant to this Indenture.
“Securities Act” means the Securities Act of 1933, as amended, or any successor
statute or statutes thereto, and the rules and regulations of the Commission promulgated
thereunder.
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“Senior Notes” means the Company’s 81/8% Senior Notes due 2015 issued from time to time
under that certain indenture dated as of November 20, 2007 with Wachovia Bank, National
Association, as trustee, and the Company’s 73/4% Senior Notes due 2018 issued from time to time under
that certain indenture dated as of August 3, 2010 with U.S. Bank National Association, as trustee.
“
Senior Subordinated Notes” means the Company’s 8
5/
8% Senior Subordinated Notes due 2014
issued under that certain indenture dated as of October 19, 2004 with The Bank of
New York, as
trustee.
“Series A Securities” means the 67/8% Senior Notes due 2020, Series A, of the Company
issued pursuant to this Indenture and sold pursuant to the Purchase Agreement.
“Series B Securities” means the 67/8% Senior Notes due 2020, Series B, of the Company to
be issued in exchange for the Series A Securities pursuant to this Indenture and the Registration
Rights Agreement.
“Significant Subsidiary” means, with respect to any Person, any Restricted Subsidiary
of such Person that satisfies the criteria for a “significant subsidiary” set forth in Rule 1.02(w)
of Regulation S-X under the Securities Act.
“Special Record Date” has the meaning set forth in Section 6.11.
“Subordinated Indebtedness” means Indebtedness as to which the payment of principal
(and premium, if any) and interest and other payment obligations is subordinate or junior in right
of payment by its terms to the Securities or the Subsidiary Guarantees of the Company or a
Guarantor, as applicable, including, without limitation, the Senior Subordinated Notes.
“Subsidiary,” with respect to any Person, means (1) any corporation of which the
outstanding Capital Stock having at least a majority of the votes entitled to be cast in the
election of directors under ordinary circumstances shall at the time be owned, directly or
indirectly, by such Person or (2) any other Person of which at least a majority of the voting
interest under ordinary circumstances is at the time, directly or indirectly, owned by such Person.
“Subsidiary Guarantee” has the meaning set forth in Section 4.18 and also includes any
Guarantee of an initial Guarantor under Article Ten of this Indenture.
“Successor Rating Agency” has the meaning set forth in the definition of Rating
Agency.
“Surviving Entity” has the meaning set forth in Section 5.01.
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“Suspended Covenants” has the meaning set forth in Section 4.22.
“Suspension Date” has the meaning set forth in Section 4.22.
“Suspension Period” has the meaning set forth in Section 4.22.
“TIA” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb), as amended,
as in effect on the date of the execution of this Indenture until such time as this Indenture is
qualified under the TIA, and thereafter as in effect on the date on which this Indenture is
qualified under the TIA, except as otherwise provided in Section 9.03.
“Transaction Date” has the meaning set forth in the definition of Combined Fixed
Charge Coverage Ratio.
“Treasury Rate” means, with respect to a Redemption Date, the yield to maturity at the
time of computation of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15(519) that 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 period from such Redemption Date to December 15, 2015; provided, however, that
if the period from the Redemption Date to such date 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 the Redemption Date to such date is less than one year, the weekly average
yield on actually traded United States Treasury securities adjusted to a constant maturity of one
year shall be used.
“Trustee” means the party named as such in this Indenture until a successor replaces
it in accordance with the provisions of this Indenture and thereafter means such successor.
“Unrestricted Subsidiary” means any Subsidiary of the Company designated as such
pursuant to and in compliance with Section 4.20. Any such designation may be revoked by a Board
Resolution of the Company delivered to the Trustee, subject to the provisions of such covenant.
“U.S. Government Obligations” shall have the meaning provided in Section 8.01.
“U.S. Legal Tender” means such coin or currency in immediately available funds of the
United States of America as at the time of payment shall be legal tender for the payment of public
and private debts.
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“U.S. Physical Securities” shall have the meaning set forth in Section 2.01.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing (A) the then outstanding aggregate principal amount
of such Indebtedness into (B) the sum of the total of the products obtained by multiplying (I) the
amount of each then remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (II) the number of years
(calculated to the nearest one-twelfth) which will elapse between such date and the making of such
payment.
“Wholly Owned Domestic Restricted Subsidiary” means a Wholly Owned Restricted
Subsidiary that is also a Domestic Restricted Subsidiary.
“Wholly Owned Restricted Subsidiary” of the Company means any Restricted Subsidiary of
which all the outstanding voting securities (other than in the case of a Foreign Restricted
Subsidiary, directors’ qualifying shares or an immaterial amount of shares required to be owned by
other Persons pursuant to applicable law) are owned by the Company or any other Wholly Owned
Restricted Subsidiary.
SECTION 1.02. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such provision is incorporated by
reference in, and made a part of, this Indenture. The following TIA terms used in this Indenture
have the following meanings:
“indenture securities” means the Securities.
“indenture security holder” means a Holder or a Securityholder.
“indenture to be qualified” means this Indenture.
“indenture trustee” or “institutional trustee” means the Trustee.
“obligor” on the indenture securities means the Company, any Guarantor and any other obligor
on the Securities.
All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by Commission rule and not otherwise defined herein have
the meanings assigned to them therein.
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SECTION 1.03. Rules of Construction.
Unless the context otherwise requires
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(3) “or” is not exclusive;
(4) words in the singular include the plural, and words in the plural include the
singular;
(5) provisions apply to successive events and transactions;
(6) “herein,” “hereof” and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision; and
(7) any requirement to pay interest on the Securities shall include all additional
interest required pursuant to the Registration Rights Agreement.
ARTICLE II
THE SECURITIES
SECTION 2.01. Form and Dating.
The Series A Securities and the Trustee’s certificate of authentication thereof shall be
substantially in the form of Exhibit A annexed hereto, which is hereby incorporated in and
expressly made a part of this Indenture. The Series B Securities and the Trustee’s certificate of
authentication thereof shall be substantially in the form of Exhibit B annexed hereto,
which is hereby incorporated in and expressly made a part of this Indenture. The Securities may
have notations, legends or endorsements (including notations relating to any Subsidiary Guarantees,
stock exchange rule or usage). The Company and the Trustee shall approve the form of the
Securities and any notation, legend or endorsement (including notations relating to any Subsidiary
Guarantees) on them any such approval to be evidenced by the execution or authentication thereof.
Each Security shall be dated the date of its authentication.
Securities offered and sold in reliance on Rule 144A or Regulation S shall be issued initially
in the form of one or more permanent Global Securities in registered form, substantially in the
form set forth in Exhibit A, deposited with the Trustee, as custodian for the Depository,
and shall bear the legend set forth in Exhibit C. The aggregate principal amount of any
Global Security may from time to time be increased or decreased by adjustments
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made on the records
of the Trustee, as custodian for the Depository, as hereinafter provided. Securities transferred to
Institutional Accredited Investors in transactions exempt from registration under the Securities
Act may be registered in the form of one or more permanent Global Securities in registered form,
substantially in the form set forth in Exhibit A, deposited with the Trustee, as custodian
for the Depository.
Securities offered and sold in offshore transactions in reliance on Regulation S may be issued
in the form of certificated Securities in registered form in substantially the form set forth in
Exhibit A (the “Offshore Physical Securities”). Securities offered and sold in
reliance on any other exemption from registration under the Securities Act other than as described
in the preceding paragraph shall be issued, and Securities offered and sold in reliance on Rule
144A may be issued, in the form of certificated Securities in registered form in substantially the
form set forth in Exhibit A (the “U.S. Physical Securities”). The Offshore
Physical Securities and the U.S. Physical Securities are sometimes collectively herein referred to
as the “Physical Securities.”
SECTION 2.02. Execution and Authentication.
(a) Two Officers, or an Officer and a secretary, treasurer, controller or an assistant
secretary of the Company, shall sign, or one Officer shall sign and one Officer or a
Secretary or an Assistant Secretary of the Company (each of whom shall, in each case, have
been duly authorized by all requisite corporate actions) shall attest to, the Securities for
the Company by manual or facsimile signature.
If an Officer or a secretary, treasurer, controller or an assistant secretary of the
Company whose signature is on a Security was an Officer or a Secretary or an Assistant
Secretary of the Company at the time of such execution but no longer holds that office at
the time the Trustee authenticates the Security, the Security shall be valid nevertheless.
Each Guarantor shall execute its Subsidiary Guarantee in the manner set forth in Section
10.07.
A Security shall not be valid until an authorized signatory of the Trustee manually
signs the certificate of authentication on the Security. The signature shall be conclusive
evidence that the Security has been authenticated under this Indenture.
(b) The Trustee shall authenticate (i) Securities for original issue on the Issue Date
in the aggregate principal amount of $500,000,000, (ii) subject to compliance
by the Company with clause (c) below, Additional Securities for original issue in an
aggregate principal amount specified in a written order of the Company and (iii) Series B
Securities for issue only in exchange, pursuant to the terms of a Registration Rights
Agreement, for a like principal amount of Series A Securities, in each case upon a written
order of the Company in the form of an Officers’ Certificate. Each
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such Officers’
Certificate shall specify the amount of Securities to be authenticated, the series of
Securities and the date on which the Securities are to be authenticated.
(c) Except as provided in Section 2.07, Additional Securities may be issued only in
compliance with Section 4.03 and, in the case of any such Additional Securities, the
Officers’ Certificate specified in clause (b) above shall certify that such issuance is not
prohibited under Section 4.03 of this Indenture. Any Additional Securities shall be part of
the same issue as the Securities being issued on the Issue Date and will vote on all matters
as one class with the Securities being issued on the Issue Date, including, without
limitation, waivers, amendments, redemptions, Change of Control Offers and Net Proceeds
Offers.
(d) Upon receipt of a written order of the Company in the form of an Officers’
Certificate, the Trustee shall authenticate Securities in substitution for Securities
originally issued to reflect any name change of the Company.
(e) The Trustee may appoint an authenticating agent reasonably acceptable to the
Company to authenticate Securities. Unless otherwise provided in the appointment, an
authenticating agent may authenticate Securities 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 the Company and
Affiliates of the Company.
(f) The Securities shall be issuable only in registered form without coupons in
denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency (the “Presenting Agent”), where (a)
Securities may be presented or surrendered for registration of transfer or for exchange, (b)
Securities may be presented or surrendered for payment and (c) notices and demands upon the Company
in respect of the Securities and this Indenture may be served. The Trustee shall initially act as
Registrar (“Registrar”) and Paying Agent (“Paying Agent”) for the Securities. The
Registrar shall keep a register of the Securities and of their transfer and exchange. The Company,
upon written notice to the Trustee, may have one or more co-Registrars and one or more additional
Paying Agents reasonably acceptable to the Trustee. The term “Paying Agent” includes any
additional Paying Agent. The Company initially ap
points the Trustee as Registrar, Paying Agent and Presenting Agent until such time as the
Trustee has resigned or a successor has been appointed. Notices and demands upon the Company in
respect of the Securities and this Indenture may be served at the Trustee’s office located as of
the date hereof x/x Xxx Xxxx xx Xxx Xxxx Xxxxxx Trust Company, N.A., 0 Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000. Neither the Company nor any Affiliate of
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the Company may act as
Paying Agent except as otherwise expressly provided in the form of the Security.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee to agree in writing that
each Paying Agent shall hold in trust for the benefit of Holders or the Trustee all assets held by
the Paying Agent for the payment of principal of, premium, if any, or interest on the Securities,
and shall notify the Trustee in writing of any Default by the Company in making any such payment.
The Company at any time may require a Paying Agent to distribute all assets held by it to the
Trustee and account for any assets disbursed and the Trustee may at any time, but shall be under no
obligation to, during the continuance of any payment Default, upon written request to a Paying
Agent, require such Paying Agent to distribute all assets held by it to the Trustee and to account
for any assets distributed. Upon distribution to the Trustee of all assets that shall have been
delivered by the Company to the Paying Agent, the Paying Agent shall have no further liability for
such assets.
SECTION 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders. If the Trustee is not the Registrar,
the Company shall furnish to the Trustee before each Record Date and at such other times as the
Trustee may request in writing a list as of such date and in such form as the Trustee may
reasonably require of the names and addresses of Holders, which list may be conclusively relied
upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
Subject to the provisions of Sections 2.15 and 2.16, when Securities are presented to the
Registrar or a co-Registrar (through the Presenting Agent or otherwise) with a request to register
the transfer of such Securities or to exchange such Securities for an equal principal amount of
Securities of other authorized denominations of the same series, the Registrar or co-Registrar
shall register the transfer or make the exchange as requested if its requirements for such
transaction are met; provided, however, that the Securities surrendered for
transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Registrar or co-Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing. To permit registrations of
transfers and exchanges, the Company shall execute and the Trustee shall authenticate
Securities at the Registrar’s or co-Registrar’s written request. No service charge shall be made
for any registration of transfer or exchange, but 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 other governmental charge payable upon exchanges or
transfers pursuant to Section 2.02, 2.10, 3.06, 4.12, 4.21 or 9.05). The Registrar or
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co-Registrar
shall not be required to register the transfer of or exchange of any Security (i) during a period
beginning at the opening of business 15 days before the mailing of a notice of redemption of
Securities and ending at the close of business on the day of such mailing and (ii) selected for
redemption in whole or in part pursuant to Article Three, except the unredeemed portion of any
Security being redeemed in part.
Any Holder of a Global Security shall, by acceptance of such Global Security, agree that
transfers of beneficial interests in such Global Security may be effected only through a book-entry
system maintained by the Depository (or its agent), and that ownership of a beneficial interest in
a Global Security shall be required to be reflected in a book entry system.
SECTION 2.07. Replacement Securities.
If a mutilated Security is surrendered to the Registrar or if the Holder of a Security claims
that the Security has been lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate upon written notice from the Company a replacement Security if the
Trustee’s requirements are met. If required by the Trustee or the Company, such Holder must
provide an indemnity bond or other indemnity, sufficient in the judgment of both the Company and
the Trustee, to protect the Company, the Trustee and any Agent from any loss which any of them may
suffer if a Security is replaced. The Company and the Trustee may charge such Holder for their
respective reasonable out-of-pocket expenses in replacing a Security, including reasonable fees and
expenses of counsel. Every replacement Security is an additional obligation of the Company.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all the Securities that have been authenticated by the
Trustee except those canceled by it, those delivered to it for cancellation and those described in
this Section as not outstanding. Subject to Section 2.09, a Security does not cease to be
outstanding because the Company or any of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07 (other than a mutilated Security
surrendered for replacement), it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a bona fide purchaser. A
mutilated Security ceases to be outstanding upon surrender of such Security and replacement thereof
pursuant to Section 2.07.
If on a Redemption Date or the Final Maturity Date the Paying Agent holds U.S. Legal Tender or
U.S. Government Obligations sufficient to pay all of the principal and interest due on the
Securities payable on that date, then on and after that date such Securities cease to be
outstanding and interest on them ceases to accrue.
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SECTION 2.09. Treasury Securities.
In determining whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Company, any Guarantor or
any of their respective Affiliates shall be disregarded, except that, for the purposes of
determining whether the Trustee shall be protected in relying on any such direction, waiver or
consent, only Securities that a Responsible Officer of the Trustee actually knows are so owned
shall be disregarded.
The Trustee may require an Officers’ Certificate listing Securities owned by the Company, any
Guarantor or any of their respective Affiliates.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities upon receipt of a written order of the Company in the form
of an Officers’ Certificate. The Officers’ Certificate shall specify the amount of temporary
Securities to be authenticated and the date on which the temporary Securities are to be
authenticated. Temporary Securities shall be substantially in the form of definitive Securities
but may have variations that the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate upon receipt of a
written order of the Company pursuant to Section 2.02 definitive Securities in exchange for
temporary Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar
and the Paying Agent shall forward to the Trustee any Securities surrendered to them for 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 Securities surrendered for transfer, exchange, payment or
cancellation, and the Trustee shall dispose of any cancelled Securities. Subject to Section 2.07,
the Company may not issue new Securities to replace Securities that it has paid or delivered to the
Trustee for cancellation. If the Company or any Guarantor shall acquire any of the Securities,
such acquisition shall not operate as a redemption or satisfaction of the Indebtedness represented by such Securities unless and until the
same are surrendered to the Trustee for cancellation pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it shall pay interest on
overdue principal and on overdue installments of interest (without grace periods) from time to time
on demand at the rate of 2% per annum in excess of the rate shown on the Security.
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SECTION 2.13. CUSIP Number.
The Company in issuing the Securities will use a “CUSIP” number, and if so, the Trustee shall
use the CUSIP number in notices of redemption or exchange as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP number printed in the notice or on the Securities, and that
reliance may be placed only on the other identification numbers printed on the Securities. The
Company will promptly notify the Trustee in writing of any change in the CUSIP numbers.
SECTION 2.14. Deposit of Moneys.
Not later than 11:00 a.m. (
New York City time) on each due date of the principal, premium, if
any, and interest on any Notes, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such principal, premium, if any, and interest so
becoming due.
SECTION 2.15. Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in the name of the Depository or
the nominee of such Depository, (ii) be delivered to the Trustee as custodian for such Depository
and (iii) bear legends as set forth in Exhibit C.
Members of, or participants in, the Depository (“Participants”) shall have no rights
under this Indenture with respect to any Global Security held on their behalf by the Depository, or
the Trustee as its custodian, or under the Global Security, and the Depository may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the
Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by the Depository or impair, as
between the Depository and Participants, the operation of customary practices governing the
exercise of the rights of a Holder of any Security.
(b) Transfers of Global Securities shall be limited to transfers in whole, but not in part, to
the Depository, its successors or their respective nominees. Interests of beneficial owners in the
Global Securities may be transferred or exchanged for Physical Securities in accordance with the
rules and procedures of the Depository and the provisions of Section 2.16. In addition, Physical
Securities shall be transferred to all beneficial owners in exchange for their beneficial interests
in Global Securities if (i) the Depository notifies the Company that it is unwilling or unable to
continue as Depository for any Global Security and a successor depositary is not appointed by the
Company within 90 days of such notice or (ii) an Event of Default has occurred and is continuing
and the Registrar has received a request from the Depository to issue Physical Securities.
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(c) In connection with the transfer of Global Securities as an entirety to beneficial owners
pursuant to paragraph (b) of this Section 2.15, the Global Securities shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall
upon written instructions from the Company authenticate and deliver, to each beneficial owner
identified by the Depository in exchange for its beneficial interest in the Global Securities, an
equal aggregate principal amount of Physical Securities of authorized denominations.
(d) Any Physical Security constituting a Restricted Security delivered in exchange for an
interest in a Global Security pursuant to paragraph (b) or (c) of this Section 2.15 shall, except
as otherwise provided by Section 2.16, bear the Private Placement Legend.
(e) The Holder of any Global Security may grant proxies and otherwise authorize any Person,
including Participants and Persons that may hold interests through Participants, to take any action
which a Holder is entitled to take under this Indenture or the Securities.
|
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SECTION 2.16. Registration of Transfers and Exchanges. |
(a) Transfer and Exchange of Physical Securities. When Physical Securities are
presented to the Registrar with a written request
(i) to register the transfer of the Physical Securities; or
(ii) to exchange such Physical Securities for an equal number of Physical Securities of
other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if the requirements
under this Indenture as set forth in this Section 2.16 for such transactions are met;
provided, however, that the Physical Securities presented or surrendered for
registration of transfer or exchange
(I) shall be duly endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Registrar or co-Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing and accompanied by reasonable assurance that each
necessary endorsement or instrument is genuine and authorized; and
(II) in the case of Physical Securities the offer and sale of which have not been
registered under the Securities Act, such Physical Securities shall be accompanied by an
Opinion of Counsel addressed to the Registrar to the effect that such transfer and exchange
is in compliance with applicable securities law and, in the sole
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discretion of the Company,
by the following additional information and documents, as applicable:
(A) if such Physical Security is being delivered to the Registrar by a holder
for registration in the name of such holder, without transfer, a certification from
such holder to that effect (in substantially the form of Exhibit D hereto);
or
(B) if such Physical Security is being transferred to a Qualified Institutional
Buyer in accordance with Rule 144A under the Securities Act, a certification to that
effect (in substantially the form of Exhibit D hereto); or
(C) if such Physical Security is being transferred to an Institutional
Accredited Investor, delivery of a certification to that effect (in substantially
the form of Exhibit D hereto) and a Transferee Certificate for Institutional
Accredited Investors in substantially the form of Exhibit E hereto; or
(D) if such Physical Security is being transferred in reliance on Regulation S,
delivery of a certification to that effect (in substantially the form of Exhibit
D hereto) and a Transferee Certificate for Regulation S Transfers in
substantially the form of Exhibit F hereto and an Opinion of Counsel
reasonably satisfactory to the Company and Trustee to the effect that such transfer
is in compliance with the Securities Act; or
(E) if such Physical Security is being transferred in reliance on Rule 144
under the Securities Act, delivery of a certification to that effect (in
substantially the form of Exhibit D hereto) and an Opinion of Counsel
reasonably satisfactory to the Company and Trustee to the effect that such transfer
is in compliance with the Securities Act; or
(F) if such Physical Security is being transferred in reliance on another
exemption from the registration requirements of the Securities Act, a certification
to that effect (in substantially the form of Exhibit D hereto) and an
Opinion of Counsel reasonably satisfactory to the Company and Trustee to the
effect that such transfer is in compliance with the Securities Act.
(b) Restrictions on Transfer of a Physical Security for a Beneficial Interest in a Global
Security. A Physical Security may not be exchanged for a beneficial interest in a Global
Security except upon satisfaction of the requirements set forth below. Upon receipt by the
Registrar of a Physical Security, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Registrar, together with
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(A) a certification, in substantially the form of Exhibit D hereto, that such
Physical Security is being transferred to a Qualified Institutional Buyer; and
(B) written instructions directing the Registrar to make, or to direct the Depository
to make, an endorsement on the Global Security to reflect an increase in the aggregate
amount of the Securities represented by the Global Security,
then the Registrar shall cancel such Physical Security and cause, or direct the Depository to
cause, in accordance with the standing instructions and procedures existing between the Depository
and the Registrar, the number of Securities represented by the Global Security to be increased
accordingly. If no Global Security is then outstanding, the Company shall issue and the Trustee
shall upon written instructions from the Company authenticate a new Global Security in the
appropriate amount.
(c) Transfer and Exchange of Global Securities. The transfer and exchange of Global
Securities or beneficial interests therein shall be effected through the Depository, in accordance
with this Indenture (including the restrictions on transfer set forth herein) and the procedures of
the Depository therefor.
(d) Transfer of a Beneficial Interest in a Global Security for a Physical Security.
(i) Any Person having a beneficial interest in a Global Security may upon request exchange such
beneficial interest for a Physical Security. Upon receipt by the Registrar of written instructions
or such other form of instructions as is customary for the Depository from the Depository or its
nominee on behalf of any Person having a beneficial interest in a Global Security and upon receipt
by the Trustee of a written order or such other form of instructions as is customary for the
Depository or the Person designated by the Depository as having such a beneficial interest
containing registration instructions and, in the case of any such transfer or exchange of a
beneficial interest in Securities the offer and sale of which have not been registered under the
Securities Act, an Opinion of Counsel addressed to the Registrar to the effect that such transfer
and exchange is in compliance with applicable securities laws and the following additional
information and documents:
(A) if such beneficial interest is being transferred to the Person designated by the
Depository as being the beneficial owner, a certification from such Person to that effect
(in substantially the form of Exhibit D hereto); or
(B) if such beneficial interest is being transferred to a Qualified Institutional Buyer
in accordance with Rule 144A under the Securities Act, a certification to that effect (in
substantially the form of Exhibit D hereto); or
(C) if such beneficial interest is being transferred to an Institutional Accredited
Investor, delivery of a certification to that effect (in substantially the form of
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Exhibit D hereto) and a Certificate for Institutional Accredited Investors in
substantially the form of Exhibit E hereto; or
(D) if such beneficial interest is being transferred in reliance on Regulation S,
delivery of a certification to that effect (in substantially the form of Exhibit D
hereto) and a Transferee Certificate for Regulation S Transfers in substantially the form of
Exhibit F hereto and an Opinion of Counsel reasonably satisfactory to the Company
and Trustee to the effect that such transfer is in compliance with the Securities Act; or
(E) if such beneficial interest is being transferred in reliance on Rule 144 under the
Securities Act, delivery of a certification to that effect (in substantially the form of
Exhibit D hereto) and an Opinion of Counsel reasonably satisfactory to the Company
and Trustee to the effect that such transfer is in compliance with the Securities Act; or
(F) if such beneficial interest is being transferred in reliance on another exemption
from the registration requirements of the Securities Act, a certification to that effect (in
substantially the form of Exhibit D hereto) and an Opinion of Counsel reasonably
satisfactory to the Company and Trustee to the effect that such transfer is in compliance
with the Securities Act,
then the Registrar will cause, in accordance with the standing instructions and procedures existing
between the Depository and the Registrar, the aggregate amount of the Global Security to be reduced
and, following such reduction, the Company will execute and, upon receipt of an authentication
order in the form of an Officers’ Certificate, the Trustee will authenticate and deliver to the
transferee a Physical Security.
(ii) Securities issued in exchange for a beneficial interest in a Global Security pursuant to
this Section 2.16(d) shall be registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect participants or otherwise, shall
instruct the Registrar in writing. The Registrar shall make such
Physical Securities available for delivery to the Persons in whose names such Physical
Securities are so registered.
(e) Restrictions on Transfer and Exchange of Global Securities. Notwithstanding any
other provisions of this Indenture, a Global Security may not be transferred as a whole except by
the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository
or another nominee of the Depository or by the Depository or any such nominee to a successor
Depository or a nominee of such successor Depository.
(f) Private Placement Legend. Upon the transfer, exchange or replacement of
Securities not bearing the Private Placement Legend, the Registrar shall deliver Securities
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that do not bear the Private Placement Legend. Upon the transfer, exchange or replacement of Securities
bearing the Private Placement Legend, the Registrar shall deliver only Securities that bear the
Private Placement Legend unless, and the Trustee is hereby authorized to deliver Securities without
the Private Placement Legend if (i) there is delivered to the Trustee an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that neither such legend nor
the related restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act or (ii) such Security has been sold pursuant to an effective
registration statement under the Securities Act.
(g) General. By its acceptance of any Security bearing the Private Placement Legend,
each Holder of such a Security acknowledges the restrictions on transfer of such Security set forth
in this Indenture and in the Private Placement Legend and agrees that it will transfer such
Security only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and other written communications
received pursuant to Section 2.15 or this Section 2.16 in accordance with its customary procedures.
The Company shall have the right to inspect and make copies of all such letters, notices or other
written communications at any reasonable time upon the giving of reasonable written notice to the
Registrar.
The Registrar and 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 Security (including any
transfers between or among Participants or beneficial owners of interests in any Global Security)
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.
ARTICLE III
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Securities pursuant to Paragraph 5 or Paragraph 6 of the
Securities, it shall notify the Trustee in writing of the Redemption Date, the Redemption Price and
the principal amount of each series of Securities to be redeemed. The Company shall give notice of
redemption to the Trustee at least 45 days but not more than 60 days before the Redemption Date
(unless a shorter notice shall be agreed to by the Trustee in writing), together with an Officers’
Certificate stating that such redemption will comply with the conditions contained herein.
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SECTION 3.02. Selection of Securities To Be Redeemed.
If fewer than all of the Securities are to be redeemed at any time, the Trustee shall select
the Securities to be redeemed in compliance with the requirements of the principal national
securities exchange, if any, on which the Securities are listed or, if the Securities are not then
listed on a national securities exchange, on a pro rata basis, by lot or by such method as the
Trustee shall deem appropriate; provided, however, that if the Securities are
redeemed pursuant to Paragraph 6 of the Securities, the Securities shall be redeemed solely on a
pro rata basis or on as nearly a pro rata basis as is practicable (subject to the procedures of the
Depository) unless the securities exchange, if any, on which the Securities are listed requires a
different method. If the Securities are listed on any national securities exchange, the Company
shall notify the Trustee in writing of the requirements of such exchange in respect of any
redemption. The Trustee shall make the selection from the Securities outstanding and not
previously called for redemption and shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Security selected for partial redemption, the
principal amount thereof to be redeemed. The Trustee may select for redemption portions (equal to
$1,000 or any integral multiple thereof) of the principal of Securities that have denominations
larger than $2,000. Provisions of this Indenture that apply to Securities called for redemption
also apply to portions of Securities called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date, the Company shall mail or
cause to be mailed a notice of redemption by first-class mail, postage prepaid, to each Holder
whose Securities are to be redeemed. At the Company’s written request and provision of such notice
information, delivered at least 15 days prior to the proposed date of such mailing (unless a
shorter notice shall be acceptable to the Trustee), the Trustee shall give the notice of redemption
in the Company’s name and at the Company’s expense. Each notice for redemption shall identify the Securities to be redeemed (including
CUSIP numbers, if any) and shall state
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if any, to be paid;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the Paying Agent to
collect the Redemption Price plus accrued interest, if any;
(5) that, unless the Company defaults in making the redemption payment, interest on
Securities called for redemption ceases to accrue on and after the Redemption
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Date, and the
only remaining right of the Holders of such Securities is to receive payment of the
Redemption Price and accrued interest, if any, to the Redemption Date upon surrender to the
Paying Agent of the Securities redeemed;
(6) if any Security is being redeemed in part, the portion of the principal amount of
such Security to be redeemed and that, after the Redemption Date, and upon surrender of such
Security, a new Security or Securities in aggregate principal amount equal to the unredeemed
portion thereof will be issued;
(7) if fewer than all the Securities are to be redeemed, the identification of the
particular Securities (or portion thereof) to be redeemed, as well as the aggregate
principal amount of Securities to be redeemed and the aggregate principal amount of
Securities to be outstanding after such partial redemption; and
(8) the paragraph of the Securities pursuant to which the Securities are to be
redeemed.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03, Securities called for
redemption become due and payable on the Redemption Date and at the Redemption Price plus accrued
interest, if any. Upon surrender to the Paying Agent, such Securities called for redemption shall
be paid at the Redemption Price (which shall include accrued interest thereon to the Redemption
Date), but installments of interest, the maturity of which is on or prior to the Redemption Date,
shall be payable to Holders of record at the close of business on the relevant Record Dates.
SECTION 3.05. Deposit of Redemption Price.
Prior to 11:00 a.m.
New York City time on the Redemption Date, the Company shall deposit with
the Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price plus accrued interest, if
any, of all Securities to be redeemed on that date.
If the Company complies with the preceding paragraph, then, unless the Company defaults in the
payment of such Redemption Price plus accrued interest, if any, interest on the Securities to be
redeemed will cease to accrue on and after the applicable Redemption Date, whether or not such
Securities are presented for payment.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is to be redeemed in part, the Trustee shall authenticate
for the Holder a new Security or Securities equal in principal amount to the unredeemed portion of
the Security surrendered.
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ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on the Securities in the manner provided
in the Securities. An installment of principal of or interest on the Securities shall be
considered paid on the date it is due if the Trustee or Paying Agent holds on that date U.S. Legal
Tender designated for and sufficient to pay the installment.
The Company shall pay, to the extent such payments are lawful, interest on overdue principal
and it shall pay interest on overdue installments of interest (without regard to any applicable
grace periods) from time to time on demand at the rate borne by the Securities plus 2% per annum.
Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain an office or agency required under Section 2.03. 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 address of the Trustee set forth in
Section 11.02. The Company hereby initially designates the Trustee’s
office located at x/x Xxx Xxxx xx Xxx Xxxx Xxxxxx Trust Company, N.A., 0 Xxxxx XxXxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 as its office or agency.
SECTION 4.03. Limitation on Incurrence of Additional Indebtedness.
The Company will not, and will not permit any of the Restricted Subsidiaries to, directly or
indirectly, create, incur, issue, assume, guarantee, acquire, become liable, contingently or
otherwise, with respect to, or otherwise become responsible for payment of (collectively,
“incur”) any Indebtedness (other than Permitted Indebtedness); provided,
however, that if no Default or Event of Default shall have occurred and be continuing at
the time of or as a consequence of the incurrence of any such Indebtedness:
(a) the Company, any Guarantor, any Finance Subsidiary that is a Domestic Restricted
Subsidiary and any Accounts Receivable Entity that is a Domestic Restricted Subsidiary may
incur Indebtedness (including, without limitation, Acquired Indebtedness) if on the date of
the incurrence of such Indebtedness, after giving effect
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to the incurrence thereof, the
Consolidated Fixed Charge Coverage Ratio of the Company would be greater than 2.0 to 1.0;
and
(b) any Restricted Subsidiary that is not a Guarantor (and is not a Finance Subsidiary
or an Accounts Receivable Entity that is a Domestic Restricted Subsidiary) may incur
Indebtedness (including, without limitation, Acquired Indebtedness) if, on the date of the
incurrence of such Indebtedness, after giving effect to the incurrence thereof,
(i) the Consolidated Fixed Charge Coverage Ratio of the Company would be
greater than 2.0 to 1.0; and
(ii) if the agreements governing such Indebtedness contain an encumbrance or
restriction on the ability of the applicable Restricted Subsidiary that is not a
Guarantor (and is not a Finance Subsidiary or an Accounts Receivable Entity that is
a Domestic Restricted Subsidiary) to pay dividends or make distributions on or in
respect of its Capital Stock, the Combined Fixed Charge Coverage Ratio of the
Restricted Subsidiaries that are not Guarantors would be greater than 2.25 to 1.0.
No Indebtedness incurred pursuant to the Consolidated Fixed Charge Coverage Ratio test of the
preceding paragraph (including, without limitation, Indebtedness under the Credit Agreement) shall
reduce the amount of Indebtedness which may be incurred pursuant to any clause of the definition of
Permitted Indebtedness (including, without limitation, In
debtedness under the Credit Agreement pursuant to clause (2) of the definition of “Permitted
Indebtedness”).
The Company and the Guarantors will not incur or suffer to exist any Indebtedness that is
subordinated in right of payment to any other Indebtedness of the Company or the Guarantors unless
such Indebtedness is at least equally subordinated in right of payment to the Securities and any
Subsidiary Guarantee.
SECTION 4.04. Limitation on Restricted Payments.
The Company will not, and will not cause or permit any of the Restricted Subsidiaries to,
directly or indirectly:
(a) declare or pay any dividend or make any distribution (other than dividends or
distributions payable in Qualified Capital Stock of the Company) on or in respect of shares
of its Capital Stock to holders of such Capital Stock (including by means of a Person
(including an Unrestricted Subsidiary) making such a payment with the proceeds of an
Investment made by the Company or any Restricted Subsidiary);
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(b) purchase, redeem or otherwise acquire or retire for value any Capital Stock of the
Company or any warrants, rights or options to purchase or acquire shares of any class of
such Capital Stock (including by means of a Person (including an Unrestricted Subsidiary)
making such a payment with the proceeds of an Investment made by the Company or any
Restricted Subsidiary);
(c) make any principal payment on, or purchase, redeem, defease, retire or otherwise
acquire for value, prior to any scheduled principal payment, sinking fund or maturity, any
Subordinated Indebtedness (other than the principal payment on, or the purchase, redemption,
defeasance, retirement or other acquisition for value of, Subordinated Indebtedness made in
satisfaction of or anticipation of satisfying a sinking fund obligation, principal
installment or final maturity within one year of the due date of such obligation,
installment or final maturity); or
(d) make any Investment (other than Permitted Investments)
(each of the foregoing actions set forth in clauses (a), (b), (c) and (d) being referred to as a
“Restricted Payment”), if at the time of such Restricted Payment or immediately after
giving effect thereto:
(1) a Default or an Event of Default shall have occurred and be continuing;
(2) the Company is not able to incur at least $1.00 of additional Indebtedness (other
than Permitted Indebtedness) in compliance with Section 4.03; or
(3) the aggregate amount of Restricted Payments (including such proposed Restricted
Payment) made after March 31, 2003 (the amount expended for such purpose, if other than in
cash, being the Fair Market Value of such property as determined reasonably and in good
faith by the Board of Directors of the Company) shall exceed the sum of:
(v) 50% of the cumulative Consolidated Net Income (or if cumulative
Consolidated Net Income shall be a loss, minus 100% of such loss) of the Company
earned during the period beginning on the first day of the fiscal quarter commencing
on April 1, 2003 and through the end of the most recent fiscal quarter for which
financial statements are available prior to the date such Restricted Payment occurs
(the “Reference Date”) (treating such period as a single accounting period);
plus
(w) 100% of the Fair Market Value of the net proceeds received by the Company
from any Person (other than a Subsidiary of the Company) from the issuance and sale
subsequent to March 31, 2003 and on or prior to the Reference Date of Qualified
Capital Stock of the Company or from the issuance of
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Indebtedness of the Company
that has been converted into or exchanged for Qualified Capital Stock of the Company
subsequent to the Issue Date and on or prior to the Reference Date; plus
(x) without duplication of any amounts included in clause (3)(w) above, 100% of
the Fair Market Value of the net proceeds of any contribution to the common equity
capital of the Company received by the Company from a holder of the Company’s
Capital Stock subsequent to March 31, 2003; plus
(y) an amount equal to the lesser of (A) the sum of the Fair Market Value of
the Capital Stock of an Unrestricted Subsidiary owned by the Company and/or the
Restricted Subsidiaries and the aggregate amount of all Indebtedness of such
Unrestricted Subsidiary owed to the Company and each Restricted Subsidiary on the
date of Revocation of such Unrestricted Subsidiary as an Unrestricted Subsidiary in
accordance with Section 4.20 or (B) the Designation Amount with respect to such
Unrestricted Subsidiary on the date of the Designation of such Subsidiary as an
Unrestricted Subsidiary in accordance with Section 4.20; plus
(z) an amount equal to the sum of (1) the net reduction in the Investments
(other than Permitted Investments) made by the Company or any
Restricted Subsidiary in any Person after the Issue Date resulting from
repurchases, repayments or redemptions of such Investments by such Person, proceeds
realized on the sale of such Investment and proceeds representing the return of
capital, in each case received by the Company or any Restricted Subsidiary and (2)
the amount of any Guarantee or similar arrangement that has terminated or expired or
by which it has been reduced to the extent that it was treated as a Restricted
Payment after March 31, 2003 that reduced the amount available under this clause (3)
or clause (VIII) of the next paragraph net of any amounts paid by the Company or a
Restricted Subsidiary in respect of such Guarantee or similar arrangement;
provided, however, that the amounts set forth in clauses (1) and (2)
above shall not exceed, in the case of any such Person, the amount of Investments
(excluding Permitted Investments) previously made and treated as a Restricted
Payment by the Company or any Restricted Subsidiary after March 31, 2003 that
reduced the amount available under this clause (3) or (VIII) of the next paragraph
in such Person or Unrestricted Subsidiary.
Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph
do not prohibit:
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(I) the payment of any dividend within 60 days after the date of declaration
of such dividend if the dividend would have been permitted on the date of declaration;
(II) the acquisition of any shares of Capital Stock of the Company, either (A)
solely in exchange for shares of Qualified Capital Stock of the Company or (B) through the
application of net proceeds of a substantially concurrent sale for cash (other than to a
Subsidiary of the Company) of shares of Qualified Capital Stock of the Company;
(III) so long as no Default or Event of Default shall have occurred and be
continuing, repurchases of Capital Stock (or rights or options therefor) of the Company from
officers, directors, employees or consultants pursuant to equity ownership or compensation
plans or stockholders agreements not to exceed $25.0 million in the aggregate subsequent to
March 31, 2003;
(IV) dividends and distributions paid on Common Stock of a Restricted Subsidiary on
a pro rata basis;
(V) an Investment with the net proceeds of a substantially concurrent sale for cash
(other than to a Subsidiary of the Company) of shares of Qualified Capital Stock of the
Company;
(VI) any purchase or redemption of Indebtedness that ranks subordinate and junior
in right of payment to the Securities utilizing any Net Cash Proceeds remaining after the
Company has complied with the requirements of Section 4.12;
(VII) any purchase, redemption, defeasance, retirement, payment or prepayment of
principal of Subordinated Indebtedness either (i) solely in exchange for shares of Qualified
Capital Stock of the Company, (ii) through the application of net proceeds of a
substantially concurrent sale for cash (other than to a Subsidiary of the Company) of shares
of Qualified Capital Stock of the Company or (iii) Refinancing Indebtedness;
(VIII) other Restricted Payments in an amount not to exceed $50 million in the
aggregate since the Issue Date;
(IX) Restricted Payments if, at the time of making such payments, and after giving
effect thereto (including, without limitation, the incurrence of any Indebtedness to finance
such payment), the Consolidated Total Debt Ratio would not exceed 3.25 to 1.00;
provided, however, that at the time of each such Restricted Payment, no
Default shall have occurred and be continuing (or result therefrom); and
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(X) any purchase, redemption, defeasance, retirement, payment or prepayment of the
Senior Subordinated Notes within 45 days after the Issue Date using the net proceeds of this
offering, together with cash on hand and available liquidity.
In determining the aggregate amount of Restricted Payments made subsequent to March 31, 2003
in accordance with clause (3) of the first paragraph of this Section 4.04, amounts expended
pursuant to clauses (I), (II), (III), (V), (VII)(i), (VII)(ii) and (IX) shall be included in such
calculation.
SECTION 4.05. Corporate Existence.
Except as otherwise permitted by Article Five, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate existence and the
corporate, partnership or other existence of each of the Restricted Subsidiaries in accordance with
the respective organizational documents of each Restricted Subsidiary and the rights (charter and
statutory) and material franchises of the Company and each of its Restricted Subsidiaries;
provided, however, that the Company shall not be required to preserve any such
right or franchise, or the corporate existence of any Restricted Subsidiary, if the Board of
Directors of the Company 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
that the loss thereof is not, and will not be, adverse in any material respect to the Holders.
SECTION 4.06. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (i) all material taxes, assessments and governmental charges levied or imposed
upon it or any of the Restricted Subsidiaries or upon the income, profits or property of it or any
of the Restricted Subsidiaries and (ii) all lawful claims for labor, materials and supplies which,
in each case, if unpaid, might by law become a material liability or Lien upon the property of it
or any of the Restricted Subsidiaries; provided, however, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which appropriate provision has been made.
SECTION 4.07. Maintenance of Properties and Insurance.
(a) The Company shall cause all material properties owned by or leased by it or any of the
Restricted Subsidiaries used in the conduct of its business or the business of any of the
Restricted Subsidiaries to be improved or maintained and kept in normal condition, repair and
working order (reasonable wear and tear excepted) and supplied with all necessary
equipment and shall cause to be made all necessary repairs, renewals, replacements,
betterments
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and improvements thereof, all as in its judgment may be necessary, so that the business
carried on in connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section 4.07 shall prevent the Company or
any of the Restricted Subsidiaries from discontinuing the use, operation or maintenance of any of
such properties, or disposing of any of them, if such discontinuance or disposal is, in the
judgment of the Board of Directors of the Company or of the Board of Directors of any Restricted
Subsidiary, or of an officer (or other agent employed by the Company or of any of the Restricted
Subsidiaries) of the Company or any of its Restricted Subsidiaries having managerial responsibility
for any such property, desirable in the conduct of the business of the Company or any Restricted
Subsidiary, and if such discontinuance or disposal is not adverse in any material respect to the
Holders.
(b) The Company shall maintain, and shall cause the Restricted Subsidiaries to maintain,
insurance with responsible carriers against such risks and in such amounts, and with such
deductibles, retentions, self-insured amounts and co-insurance provisions, as are customarily
carried by similar businesses of similar size, including property and casualty loss, workers’
compensation and interruption of business insurance.
SECTION 4.08. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee, within 100 days after the close of each
fiscal year commencing with the close of the fiscal year ended December 31, 2011, an Officers’
Certificate stating that a review of the activities of the Company has been made under the
supervision of the signing officers with a view to determining whether it has kept, observed,
performed and fulfilled its obligations under this Indenture and further stating, as to each such
Officer, Secretary or Controller of the Company signing such certificate, that to the best of his
knowledge the Company during such preceding fiscal year has kept, observed, performed and fulfilled
each and every such covenant and no Default or Event of Default occurred during such year and at
the date of such certificate no Default or Event of Default has occurred and is continuing or, if
such signers do know of such Default or Event of Default, the certificate shall describe its status
with particularity. The Officers’ Certificate shall also notify the Trustee should the Company
elect to change the manner in which it fixes its fiscal year end.
(b) The annual financial statements delivered pursuant to Section 4.10 shall be
accompanied by a written report of the Company’s independent accountants (who shall be a firm of
established national reputation) that in conducting their audit of such financial statements
nothing has come to their attention that would lead them to believe that the Company has violated
any provisions of Article Four, Five or Six of this Indenture insofar as they relate to accounting
matters or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants shall not be liable
directly or indirectly to any Person for any failure to obtain knowledge of any such violation.
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(c) The Company shall deliver to the Trustee, within ten days after becoming aware of any
Default or Event of Default in the performance of any covenant, agreement or condition contained in
this Indenture, an Officers’ Certificate specifying the Default or Event of Default and describing
its status with particularity. Upon the written request of the Trustee (which may be given at any
time and from time to time), the Company shall promptly provide written notice to the Trustee
confirming that no Default or Event of Default has occurred or is continuing, or if a Default or
Event of Default has occurred or is continuing, written notice briefly describing such Default or
Event of Default.
SECTION 4.09. Compliance with Laws.
The Company shall comply, and shall cause each of the Restricted Subsidiaries to comply, with
all applicable statutes, rules, regulations, orders and restrictions of the United States of
America, all states and municipalities thereof, and of any governmental department, commission,
board, regulatory authority, bureau, agency and instrumentality of the foregoing, in respect of the
conduct of their respective businesses and the ownership of their respective properties, except for
such noncompliances as would not in the aggregate have a material adverse effect on the financial
condition or results of operations of the Company and the Restricted Subsidiaries taken as a whole.
SECTION 4.10. Reports to Holders.
(a) Notwithstanding that the Company may not be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, to the extent permitted by the Exchange Act, the Company
will file with the Commission, and provide to the Trustee and the Holders of the Securities, the
annual reports and the information, documents and other reports (or copies of such portions of any
of the foregoing as the Commission may by rules and regulations prescribe) that are specified in
Sections 13 and 15(d) of the Exchange Act within the time periods required; provided,
however, that availability of the foregoing materials on the Commission’s XXXXX service
shall be deemed to satisfy the Company’s delivery obligations hereunder. In the event that the
Company is not permitted to file such reports, documents and information with the Commission
pursuant to the Exchange Act, the Company will nevertheless provide such Exchange Act information
to the Trustee and the Holders of the Securities as if the Company were subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act within the time periods required by law.
(b) If the Company has designated any of its Subsidiaries as an Unrestricted Subsidiary,
then the quarterly and annual financial information required by the preceding paragraph will
include a reasonably detailed presentation, either on the face of the financial
statements or in the footnotes to the financial statements, and in “Management’s Discussion
and Analysis of Financial Condition and Results of Operations,” of the financial condition and
results of operations of the Company and the Restricted Subsidiaries.
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(c) In addition, the Company has agreed that, for so long as any Securities remain
outstanding, it will furnish to the Holders and to securities analysts and prospective investors,
upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
(d) Notwithstanding anything in this Indenture, the Company will not be deemed to have
failed to comply with any of its obligations under clause (a) of this Section 4.10 for purposes of
Section 6.01(3) until 90 days after the date any report hereunder is due.
Delivery of such reports, information and documents to the Trustee pursuant to this Section
4.10 is for informational purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates).
SECTION 4.11. Waiver of Stay, Extension or Usury Laws.
The Company 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
or extension law or any usury law or other law that would prohibit or forgive the Company from
paying all or any portion of the principal of and/or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants
or the performance of this Indenture, and (to the extent that it may lawfully do so) the Company
hereby expressly waives all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been enacted.
SECTION 4.12. Limitation on Asset Sales.
The Company will not, and will not permit any of the Restricted Subsidiaries to, consummate an
Asset Sale unless:
(1) the Company or the applicable Restricted Subsidiary, as the case may be,
receives consideration at the time of such Asset Sale at least equal to the Fair Market
Value of the assets sold or otherwise disposed of;
(2) at least 75% of the consideration received by the Company or the Restricted
Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash or Cash
Equivalents and is received at the time of such disposition; and
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(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such
Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365
days after receipt thereof either (A) to prepay any Indebtedness secured by a Lien on such
asset to the extent of the Net Cash Proceeds of such asset and, in the case of any such
Indebtedness under any revolving credit facility, effect a permanent reduction in the
availability under such revolving credit facility (or effect a permanent reduction in
availability under such revolving credit facility, regardless of the fact that no prepayment
is required), (B) to acquire Replacement Assets, or (C) a combination of prepayment and
investment permitted by the foregoing clauses (3)(A) and (3)(B).
Pending the final application of the Net Cash Proceeds, the Company and the Restricted Subsidiaries
may invest such Net Cash Proceeds in any manner not prohibited by this Indenture.
On the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors
of the Company or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds
relating to such Asset Sale as set forth in clauses (3)(A), (3)(B) and (3)(C) of the preceding
paragraph (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Cash
Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted
in clauses (3)(A), (3)(B) and (3)(C) of the preceding paragraph (each, a “Net Proceeds Offer
Amount”) shall be applied by the Company to make an offer to purchase (the “Net Proceeds
Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more
than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders on a
pro rata basis, that principal amount of Securities equal to the Net Proceeds Offer
Amount at a price equal to 100% of the principal amount of the Securities to be purchased, plus
accrued and unpaid interest, if any, thereon to the date of purchase; provided,
however, that if the Company elects (or is required by the terms of any Indebtedness that
ranks pari passu with the Securities), such Net Proceeds Offer may be made ratably
to purchase the Securities and such pari passu Indebtedness.
If at any time any non-cash consideration received by the Company or any Restricted
Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or
otherwise disposed of for cash (other than interest received with respect to any such non-cash
consideration) or Cash Equivalents, then such conversion or disposition shall be deemed to
constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance
with this Section 4.12.
The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net
Proceeds Offer Amount equal to or in excess of $50.0 million resulting from one or more Asset Sales
or deemed Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just
the amount in excess of $50.0 million, shall be applied as required pursuant to this paragraph).
The first such date the aggregate unutilized Net Proceeds Offer
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Amount is equal to or in excess of
$50.0 million shall be treated for this purpose as the Net Proceeds Offer Trigger Date.
In the event of the transfer of substantially all (but not all) of the property and assets of
the Company and the Restricted Subsidiaries after the Issue Date as an entirety to a Person in a
transaction permitted under Section 5.01, the successor corporation shall be deemed to have sold
the properties and assets of the Company and the Restricted Subsidiaries not so transferred for
purposes of this Section 4.12, and shall comply with the provisions of this Section 4.12 with
respect to such deemed sale as if it were an Asset Sale. In addition, the Fair Market Value of
such properties and assets of the Company or the Restricted Subsidiaries deemed to be sold shall be
deemed to be Net Cash Proceeds for purposes of this Section 4.12.
Notice of each Net Proceeds Offer will be mailed or caused to be mailed, by first class mail,
by the Company within 30 days following the Net Proceeds Offer Trigger Date to all record Holders
as shown on the register of Holders, with a copy to the Trustee. The notice shall contain all
instructions and materials necessary to enable such Holders to tender Securities pursuant to the
Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.12 and
that the Holders may elect to tender their Securities in whole or in part in denominations
of $2,000 and integral multiples of $1,000 in excess thereof for cash; provided,
however, that if the aggregate principal amount of Securities properly tendered in a
Net Proceeds Offer exceeds the Net Proceeds Offer Amount, Securities of tendering Holders
will be purchased on a pro rata basis (based on amounts tendered);
(2) the purchase price (including the amount of accrued interest, if any) and the
Net Proceeds Offer Payment Date (which shall be at least 20 Business Days from the date of
mailing of notice of such Net Proceeds Offer, or such longer period as required by law);
(3) that any Security not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor, any Security
accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after
the Net Proceeds Offer Payment Date;
(5) that Holders electing to have a Security purchased pursuant to a Net Proceeds
Offer will be required to surrender the Security, with the form entitled “Option of Holder
To Elect Purchase” on the reverse of the Security completed, to the Paying Agent at the
address specified in the notice prior to the close of business on the Net Proceeds Offer
Payment Date;
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(6) that Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the Business Day prior to the Net Proceeds Offer Payment Date, a
facsimile transmission or letter setting forth the name of the Holder, the principal amount
of the Security the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Security purchased; and
(7) that Holders whose Securities are purchased only in part will be issued new
Securities in a principal amount equal to the unpurchased portion of the Securities
surrendered.
On or before the Net Proceeds Offer Payment Date, the Company shall (i) accept for payment
Securities or portions thereof tendered pursuant to the Net Proceeds Offer which are to be
purchased in accordance with item (1) above, (ii) deposit with the Paying Agent in accordance with
Section 2.14 U.S. Legal Tender sufficient to pay the purchase price plus accrued interest, if any,
of all Securities to be purchased and (iii) deliver to the Trustee Securities so accepted together
with an Officers’ Certificate stating the Securities or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to the Holders of Securities so accepted payment in
an amount equal to the purchase price plus accrued interest, if any. For purposes of this Section
4.12, the Trustee shall act as the Paying Agent.
To the extent that the aggregate amount of the notes tendered pursuant to a Net Proceeds Offer
is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer
Amount for general corporate purposes or for any other purposes not prohibited by this Indenture.
Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset to
zero.
The Company will comply with all tender offer rules under state and federal securities laws
and regulations, including, but not limited to, Section 14(e) under the Exchange Act and Rule 14e-1
thereunder, to the extent applicable to such offer. To the extent that the provisions of any
securities laws or regulations conflict with the foregoing “Asset Sale” provisions of this
Indenture, the Company shall comply with the applicable securities laws and regulations and shall
not be deemed to have breached its obligations under the foregoing provisions of this Indenture by
virtue thereof.
The Trustee shall make such adjustments as are needed so that no unauthorized denominations
are purchased in part when the aggregate principal amount of Securities properly tendered in a Net Proceeds Offer pursuant to this Section 4.12 exceeds the Net Proceeds
Offer Amount and Securities of tendering Holders are purchased on a pro rata basis
(based on amounts tendered). Each Notice of Net Proceeds Offer required pursuant to this Section
4.12 shall state that such adjustments may be made under such circumstances.
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SECTION 4.13. Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. |
The Company will not, and will not cause or permit any of the Restricted Subsidiaries to,
directly or indirectly, create or otherwise cause or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(a) pay dividends or make any other distributions on or in respect of its Capital
Stock (it being understood that the priority of any preferred stock in receiving dividends
or liquidating distributions prior to dividends or liquidating distributions being paid on
common stock shall not be deemed a restriction on the ability to make distributions on
Capital Stock);
(b) make loans or advances or to pay any Indebtedness or other obligation owed to
the Company or any other Restricted Subsidiary; or
(c) transfer any of its property or assets to the Company or any other Restricted
Subsidiary;
except for such encumbrances or restrictions existing under or by reason of:
(1) applicable law;
(2) this Indenture;
(3) the Credit Agreement and/or the documentation for the Credit Agreement;
(4) the Senior Notes and Senior Subordinated Notes and/or the documentation for the
Senior Notes and Senior Subordinated Notes and/or documentation for the Senior Subordinated
Notes, in the case of the Senior Subordinated Notes pending retirement of the Senior
Subordinated Notes within 45 days after the Issue Date using the net proceeds of this
offering, together with cash on hand and available liquidity;
(5) customary non-assignment provisions of any contract or any lease governing a
leasehold interest of any Restricted Subsidiary;
(6) any instrument governing Acquired Indebtedness, which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any Person,
other than the Person or the properties or assets of the Person so acquired;
(7) agreements existing on the Issue Date to the extent and in the manner such
agreements are in effect on the Issue Date;
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(8) any other agreement entered into after the Issue Date which contains
encumbrances and restrictions which are not materially more restrictive with respect to any
Restricted Subsidiary than those in effect with respect to such Restricted Subsidiary
pursuant to agreements as in effect on the Issue Date;
(9) any instrument governing Indebtedness of a Foreign Restricted Subsidiary;
(10) customary restrictions on the transfer of any property or assets arising under
a security agreement governing a Lien permitted under this Indenture;
(11) secured Indebtedness otherwise permitted to be incurred pursuant to Section
4.03 and Section 4.15 that limit the right of the debtor to dispose of the assets securing
such Indebtedness;
(12) any agreement governing Refinancing Indebtedness incurred to Refinance the
Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clause (2),
(4), (6), (7) or (9) above; provided, however, that the provisions relating
to such encumbrance or restriction contained in any such Refinancing Indebtedness are not
materially more restrictive than the provisions relating to such encumbrance or restriction
contained in agreements referred to in such clause (2), (4), (6), (7) or (9);
(13) any agreement governing the sale or disposition of any Restricted Subsidiary
which restricts dividends and distributions pending such sale or disposition;
(14) any agreement, instrument or Lien placing encumbrances or restrictions
applicable only to a Finance Subsidiary or an Accounts Receivable Entity; or
(15) any agreement governing Indebtedness permitted to be incurred pursuant to
Section 4.03; provided that the provisions relating to such encumbrance or
restriction contained in such Indebtedness, taken as a whole, are not materially more
restrictive than the provisions contained in the Credit Agreement or in this Indenture as in
effect on the Issue Date.
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SECTION 4.14. Limitation on Issuances of Capital Stock of
Restricted Subsidiaries. |
The Company will not permit any of the Restricted Subsidiaries (other than a Finance
Subsidiary or an Accounts Receivable Entity) to issue any Preferred Stock (other than to the
Company or to a Restricted Subsidiary) or permit any Person (other than the Company or a Restricted
Subsidiary) to own any Preferred Stock of any Restricted Subsidiary (other than a Finance
Subsidiary or an Accounts Receivable Entity).
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SECTION 4.15. Limitation on Liens.
The Company will not, and will not cause or permit any of the Restricted Subsidiaries to,
directly or indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind
against or upon any property or assets of the Company or any of the Restricted Subsidiaries,
whether now owned or hereafter acquired, or any proceeds therefrom, or assign or otherwise convey
any right to receive income or profits therefrom unless:
(1) in the case of Liens securing Indebtedness that is expressly subordinate or
junior in right of payment to the Securities or a Subsidiary Guarantee, the Securities or
such Subsidiary Guarantee is secured by a Lien on such property, assets or proceeds that is
senior in priority to such Liens; and
(2) in all other cases, the Securities are equally and ratably secured,
except for:
(A) Liens existing as of the Issue Date to the extent and in the manner such Liens
are in effect on the Issue Date;
(B) Liens securing Indebtedness permitted to be incurred pursuant to clause (2) or
(11) of the definition of “Permitted Indebtedness” and all other Obligations relating
thereto;
(C) Liens securing the Securities or any Subsidiary Guarantee;
(D) Liens in favor of the Company or any Guarantor;
(E) Liens securing Refinancing Indebtedness which is incurred to Refinance any
Indebtedness (including, without limitation, Acquired Indebtedness) which has been secured
by a Lien permitted under this Indenture and which has been incurred in accordance with the
provisions of this Indenture; provided, however, that such Liens:
(I) are no less favorable to Holders of the Securities and are not more
favorable to the lienholders with respect to such Liens than the Liens in respect of
the Indebtedness being Refinanced; and
(II) do not extend to or cover any property or assets of the Company or any of
its Restricted Subsidiaries not securing the Indebtedness so Refinanced; and
(F) Permitted Liens.
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SECTION 4.16. [Intentionally Omitted]
SECTION 4.17. Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any of the Restricted Subsidiaries to,
directly or indirectly, enter into or permit to exist any transaction or series of related
transactions (including, without limitation, the purchase, sale, lease or exchange of any property
or the rendering of any service) with, or for the benefit of, any of its Affiliates (each, an
“Affiliate Transaction”), other than:
(1) Affiliate Transactions permitted under paragraph (b) below; and
(2) Affiliate Transactions on terms that are not materially less favorable than
those that would have reasonably been expected in a comparable transaction at such time on
an arm’s-length basis from a Person that is not an Affiliate of the Company or such
Restricted Subsidiary.
All Affiliate Transactions (and each series of related Affiliate Transactions which are
similar or part of a common plan) involving aggregate payments or other property with a Fair Market
Value in excess of $10.0 million shall be approved by the Board of Directors of the Company or such
Restricted Subsidiary, as the case may be, such approval to be evidenced by a Board Resolution
stating that such Board of Directors has determined that such transaction complies with the
foregoing provisions. If the Company or any Restricted Subsidiary enters into an Affiliate
Transaction (or series of related Affiliate Transactions related to a common plan) on or after the
Issue Date that involves an aggregate Fair Market Value of more than $50.0 million, the Company or
such Restricted Subsidiary, as the case may be, shall, prior to the consummation thereof, obtain a
favorable opinion as to the fairness of such transaction or series of related transactions to the
Company or the relevant Restricted Subsidiary, as the case may be, from a financial point of view,
from an Independent Financial Advisor and file the same with the Trustee.
(b) The restrictions set forth in paragraph (a) above shall not apply to
(1) employment, consulting and compensation arrangements and agreements of the
Company or any Restricted Subsidiary consistent with past practice or approved by a majority
of the disinterested members of the Board of Directors (or a committee comprised of
disinterested directors);
(2) reasonable fees and compensation paid to and indemnity provided on behalf of,
officers, directors, employees, consultants or agents of the Company or any Restricted
Subsidiary as determined in good faith by the Company’s Board of Directors or senior
management;
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(3) transactions exclusively between or among the Company and any of the Restricted
Subsidiaries or exclusively between or among such Restricted Subsidiaries; provided
that such transactions are not otherwise prohibited by this Indenture; and
(4) Restricted Payments, Permitted Investments or Permitted Liens permitted by this
Indenture.
SECTION 4.18. Issuance of Subsidiary Guarantees.
If, on or after the Issue Date, the Company forms or acquires any Domestic Restricted
Subsidiary (other than (w) an Acquired Subsidiary for so long as it is not a Wholly Owned Domestic
Restricted Subsidiary, (x) a Finance Subsidiary, (y) an Accounts Receivable Entity or (z) an
Immaterial Domestic Subsidiary) that incurs any Indebtedness (other than Indebtedness owing to the
Company or a Restricted Subsidiary), or if, on or after the Issue Date, any Restricted Subsidiary
that is not a Guarantor guarantees (a “Guarantee”) any Indebtedness of the Company or a
Guarantor (other than Indebtedness owing to the Company or a Restricted Subsidiary)
(“Guaranteed Indebtedness”), then the Company shall cause such Domestic Restricted
Subsidiary or Restricted Subsidiary that is not a Guarantor, as the case may be, to:
(1) execute and deliver to the Trustee a supplemental indenture in form
reasonably satisfactory to the Trustee pursuant to which such Domestic Restricted Subsidiary or
Restricted Subsidiary that is not a Guarantor, as the case may be, shall unconditionally guarantee
(each, a “Subsidiary Guarantee”) all of the Company’s obligations under the Securities and
this Indenture on the terms set forth in this Indenture; and
(2) execute and deliver to the Trustee an Opinion of Counsel (which may contain customary
exceptions) that such supplemental indenture has been duly authorized, executed and delivered by
such Domestic Restricted Subsidiary or Restricted Subsidiary that is not a Guarantor, as the case
may be, and constitutes a legal, valid, binding and enforceable
obligation of such Domestic Restricted Subsidiary or Restricted Subsidiary that is not a
Guarantor, as the case may be.
Thereafter, such Domestic Restricted Subsidiary or Restricted Subsidiary that was not a
Guarantor, as the case may be, shall be a Guarantor for all purposes of this Indenture. The
Company may cause any other Restricted Subsidiary of the Company to issue a Subsidiary Guarantee
and become a Guarantor.
If the Guaranteed Indebtedness is pari passu with the Securities, then the
Guarantee of such Guaranteed Indebtedness shall be pari passu with the Subsidiary
Guarantee. If the Guaranteed Indebtedness is subordinated to the Securities, then the Guarantee of
such Guaranteed Indebtedness shall be subordinated to the Subsidiary Guarantee at least to the
extent that the Guaranteed Indebtedness is subordinated to the Securities.
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Notwithstanding the foregoing, a Subsidiary Guarantee of the Securities provided by a
Guarantor will be released without any action required on the part of the Trustee or any Holder of
the Securities:
(1) if the guarantee of the Credit Agreement and of the Senior Notes made by such
Guarantor is released, unless such Guarantor has any Indebtedness outstanding or remains a
guarantor of Indebtedness of the Company or another Guarantor;
(2) if (a) all of the Capital Stock of, or all or substantially all of the assets
of, such Guarantor is sold or otherwise disposed of (including by way of merger or
consolidation) to a Person other than the Company or any of its Domestic Restricted
Subsidiaries or (b) such Guarantor ceases to be a Restricted Subsidiary, and the Company
otherwise complies, to the extent applicable, with Section 4.12;
(3) if the Company designates such Guarantor as an Unrestricted Subsidiary in
accordance with Section 4.20; or
(4) upon the Company’s request if the Fair Market Value of the assets of the
applicable Guarantor (as determined in good faith by the Board of Directors of the Company),
together with the Fair Market Value of the assets of other Guarantors whose Subsidiary
Guarantee was released in the same calendar year in reliance on this paragraph (4), do not
exceed $5.0 million (subject to cumulative carryover for amounts not used in any prior
calendar year).
At the Company’s written request, the Trustee will execute and deliver any instrument
evidencing such release. A Guarantor may also be released from its obligation under its Subsidiary
Guarantee in connection with amendments permitted in accordance with the
provisions of Article Nine of this Indenture. The Trustee shall only be obligated to deliver
any such instrument upon receipt of an Officers’ Certificate stating that such release is
authorized and in compliance with this Indenture.
SECTION 4.19. Payments for Consent.
The Company will not, and will not cause or permit any of its Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or
otherwise, to any Holder of any Securities for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture, the Securities or the Subsidiary
Guarantees unless such consideration is offered to be paid to all Holders who so consent, waive or
agree to amend in the time frame set forth in solicitation documents relating to such consent,
waiver or amendment.
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SECTION 4.20. Limitation on Designations of Unrestricted
Subsidiaries.
The Company may, on or after the Issue Date, designate any Subsidiary of the Company (other
than a Subsidiary of the Company which owns Capital Stock of a Restricted Subsidiary or is a
Guarantor) as an “Unrestricted Subsidiary” under this Indenture (a “Designation”) only if:
(1) no Default or Event of Default shall have occurred and be continuing at the
time of or after giving effect to such Designation;
(2) the Company would be permitted under this Indenture to make an Investment at
the time of Designation (assuming the effectiveness of such Designation) in an amount (the
“Designation Amount”) equal to the sum of (A) the Fair Market Value of the Capital
Stock of such Subsidiary owned by the Company and/or any of the Restricted Subsidiaries on
such date and (B) the aggregate amount of Indebtedness of such Subsidiary owed to the
Company and the Restricted Subsidiaries on such date; and
(3) the Company would be permitted to incur $1.00 of additional Indebtedness (other
than Permitted Indebtedness) pursuant to Section 4.03 at the time of Designation (assuming
the effectiveness of such Designation).
In the event of any such Designation, the Company shall be deemed to have made an Investment
constituting a Restricted Payment in the Designation Amount pursuant to Section 4.04 for all
purposes of this Indenture.
The Company shall not, and shall not permit any Restricted Subsidiary to, at any time:
(x) provide direct or indirect credit support for or a guarantee of any
Indebtedness of any Unrestricted Subsidiary (including any undertaking agreement or
instrument evidencing such Indebtedness);
(y) be directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary; or
(z) be directly or indirectly liable for any Indebtedness which provides that the
holder thereof may (upon notice, lapse of time or both) declare a default thereon or cause
the payment thereof to be accelerated or payable prior to its final scheduled maturity upon
the occurrence of a default with respect to any Indebtedness of any Unrestricted Subsidiary
(including any right to take enforcement action against such Unrestricted
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Subsidiary),
except, in the case of clause (x) or (y), to the extent permitted under Section 4.04 hereof.
The Company may revoke any Designation of a Subsidiary as an Unrestricted Subsidiary
(“Revocation”), whereupon such Subsidiary shall then constitute a Restricted Subsidiary, if
(1) no Default or Event of Default shall have occurred and be continuing at the
time and after giving effect to such Revocation;
(2) all Liens and Indebtedness of such Unrestricted Subsidiary outstanding
immediately following such Revocation would, if incurred at such time, have been permitted
to be incurred for all purposes of this Indenture; and
(3) such Subsidiary shall for purposes of Section 4.18 be treated as having then
been acquired by the Company.
All Designations and Revocations must be evidenced by an Officers’ Certificate of the Company
delivered to the Trustee certifying authorization under this Indenture and compliance with the
foregoing provisions.
SECTION 4.21. Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder will have the right to require
that the Company purchase all or a portion of such Holder’s Securities pursuant to the offer
described below (the “Change of Control Offer”), at a purchase price equal to
101% of the principal amount thereof plus accrued and unpaid interest, if any, and any
liquidated damages if any, thereon to the date of purchase.
(b) Within 30 days following the date upon which the Change of Control occurs, the Company
must send, by first class mail, a notice to each Holder, with a copy to the Trustee, which notice
shall govern the terms of the Change of Control Offer. Such notice shall state, among other
things,
(1) that the Change of Control Offer is being made pursuant to this Section 4.21
and that all Securities tendered and not withdrawn will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase
date, which must be no earlier than 30 days nor later than 60 days from the date such notice
is mailed, other than as may be required by law (the “Change of Control Payment
Date”);
(3) that any Security not tendered will continue to accrue interest;
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(4) that, unless the Company defaults in making payment therefor, any Security
accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Payment Date;
(5) that Holders electing to have a Security purchased pursuant to a Change of
Control Offer will be required to surrender the Security, with the form entitled “Option of
Holder to Elect Purchase” on the reverse of the Security completed, to the Paying Agent at
the address specified in the notice prior to the close of business on the third Business Day
prior to the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the Business Day prior to the Change of Control Payment Date, a
facsimile transmission or letter setting forth the name of the Holder, the principal amount
of the Securities the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Securities purchased;
(7) that Holders whose Securities are purchased only in part will be issued new
Securities in a principal amount equal to the unpurchased portion of the Securities
surrendered; and
(8) the circumstances and relevant facts regarding such Change of Control.
On or before the Change of Control Payment Date, the Company shall (i) accept for payment
Securities or portions thereof tendered pursuant to the Change of Control
Offer, (ii) deposit with the Paying Agent, in accordance with Section 2.14, U.S. Legal Tender
sufficient to pay the purchase price plus accrued interest, if any, of all Securities so tendered
and (iii) deliver to the Trustee Securities so accepted together with an Officers’ Certificate
stating the Securities or portions thereof being purchased by the Company. Upon receipt by the
Paying Agent of the monies specified in clause (ii) above and a copy of the Officers’ Certificate
specified in clause (iii) above, the Paying Agent shall promptly mail to the Holders of Securities
so accepted payment in an amount equal to the purchase price plus accrued interest, if any, and the
Trustee shall promptly authenticate and mail to such Holders new Securities equal in principal
amount to any unpurchased portion of the Securities surrendered. Any Securities not so accepted
shall be promptly mailed by the Company to the Holder thereof. For purposes of this Section 4.21,
the Trustee shall act as the Paying Agent.
The Company will not be required to make a Change of Control Offer upon a Change of Control if
a third party makes the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in this Indenture applicable to a Change of Control
Offer made by the Company and purchases all Securities validly tendered and not withdrawn under
such Change of Control Offer.
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Any amounts remaining after the purchase of all validly tendered and not validly withdrawn
Securities pursuant to a Change of Control Offer shall be returned by the Trustee to the Company.
The Company shall and shall cause its Subsidiaries to comply with all tender offer rules under
state and federal securities laws, including, but not limited to, Section 14(e) under the Exchange
Act and Rule 14e-1 thereunder, to the extent applicable to such offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section 4.21, the Company shall
comply with the applicable securities laws and regulations and shall not be deemed to have breached
its obligations under this Section 4.21 by virtue thereof.
Notwithstanding the occurrence of a Change of Control, the Company will not be obligated to
repurchase the Securities under this covenant if it has exercised its right to redeem the
Securities under the terms of Paragraph 5 of the Securities.
SECTION 4.22. Covenant Suspension.
Beginning on the date (the “Suspension Date”) that (i) the Securities have Investment
Grade Ratings from both Rating Agencies and (ii) no Default or Event of Default has occurred and is
continuing under this Indenture, and ending on the date (the “Reversion Date”) that either
Rating Agency (or both Rating Agencies) withdraws its Investment Grade Rating on the Securities or
downgrades the rating assigned by it to the Securities below an Investment Grade Rating or a
Default or Event of Default has occurred and is continuing (such period of time from and including
the Suspension Date to but excluding the Reversion Date, the
“Suspension Period”), the Company and its Restricted Subsidiaries will not be subject
to the following provisions of this Indenture:
(1) Section 4.03;
(2) Section 4.04;
(3) Section 4.12;
(4) Section 4.13;
(5) Section 4.17; and
(6) Sections 5.01(a)(2) and (c)(4);
(collectively, the “Suspended Covenants”); provided, however, that the
Company and its Restricted Subsidiaries will remain subject to the following provisions of this
Indenture:
(1) Section 4.10;
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(2) Section 4.14;
(3) Section 4.15;
(4) Section 4.18;
(5) Section 4.19;
(6) Section 4.20;
(7) Section 4.21; and
(8) Section 5.01 (except to the extent set forth in this paragraph).
During any Suspension Period, the Company’s Board of Directors may not designate any of the
Company’s Subsidiaries as Unrestricted Subsidiaries.
On the Reversion Date, all Indebtedness incurred and Disqualified Capital Stock and Preferred
Stock issued during the Suspension Period will be classified as having been incurred or issued
pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth in Section 4.03(a) or one
of the clauses set forth in the definition of Permitted Indebtedness (to the extent such
Indebtedness would be permitted to be incurred or issued thereunder as of the Reversion Date and
after giving effect to Indebtedness incurred issued prior to the
Suspension Period and outstanding on the Reversion Date). To the extent any such Indebtedness
would not be so permitted to be incurred or issued pursuant to the Consolidated Fixed Charge
Coverage Ratio or the definition of Permitted Indebtedness, such Indebtedness will be deemed to
have been outstanding on the Issue Date, so that it is classified as permitted under clause (3) of
the definition of Permitted Indebtedness.
Calculations made after the Reversion Date of the amount available to be made as Restricted
Payments under Section 4.04 will be made as though Section 4.04 had been in effect since the Issue
Date and throughout the Suspension Period. Accordingly, Restricted Payments made during the
Suspension Period will reduce the amount available to be made as Restricted Payments under Section
4.04(a).
For purposes of Section 4.12, on the Suspension Date, the Net Cash Proceeds amount will be
reset to zero.
Notwithstanding the reinstatement of the Suspended Covenants on the Reversion Date, neither
(a) the continued existence, on and after the Reversion Date, of facts and circumstances or
obligations that occurred, were incurred or otherwise came into existence during a Suspension
Period nor (b) the performance thereof, shall constitute a breach of any Suspended Covenant set
forth in this Indenture or cause a Default or Event of Default thereunder;
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provided,
however, that (i) the Company and the Restricted Subsidiaries did not incur or otherwise
cause such facts and circumstances or obligations to exist in anticipation of a withdrawal or
downgrade by either Rating Agency (or both Rating Agencies) of its Investment Grade Rating on the
Securities and (ii) the Company reasonably believed that such incurrence or actions would not
result in such withdrawal or downgrade.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets.
(a) The Company will not, in a single transaction or series of related transactions,
consolidate or merge with or into any Person, or sell, assign, transfer, lease, convey or otherwise
dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey
or otherwise dispose of) all or substantially all of the Company’s assets (determined on a
consolidated basis for the Company and the Restricted Subsidiaries) whether as an entirety or
substantially as an entirety to any Person unless:
(1) either (A) the Company shall be the surviving or continuing corporation or (B)
the Person (if other than the Company) formed by such consolidation or into which the
Company is merged or the Person which acquires by sale, assignment,
transfer, lease, conveyance or other disposition the properties and assets of the
Company and the Restricted Subsidiaries substantially as an entirety (the “Surviving
Entity”) (x) shall be a corporation organized and validly existing under the laws of the
United States or any State thereof or the District of Columbia, and (y) shall expressly
assume, by supplemental indenture (in form and substance satisfactory to the Trustee),
executed and delivered to the Trustee, the due and punctual payment of the principal of and
premium, if any, and interest on all of the Securities and the performance of every covenant
of the Securities, this Indenture and the Registration Rights Agreement on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction on a pro
forma basis and the assumption contemplated by clause (1)(B)(y) above (including
giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be
incurred in connection with or in respect of such transaction), the Company or such
Surviving Entity, as the case may be, shall be able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.03; provided,
however, that this clause (2) shall not be effective during any Suspension Period as
described under Section 4.22;
(3) immediately before and immediately after giving effect to such transaction and
the assumption contemplated by clause (1)(B)(y) above (including, without
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limitation, giving
effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred
and any Lien granted or to be released in connection with or in respect of the transaction),
no Default or Event of Default shall have occurred and be continuing; and
(4) the Company or the Surviving Entity shall have delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a
supplemental indenture is required in connection with such transaction, such supplemental
indenture comply with the applicable provisions of this Indenture and that all conditions
precedent in this Indenture relating to such transaction have been satisfied.
(b) For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise,
in a single transaction or series of transactions) of all or substantially all of the properties or
assets of one or more Restricted Subsidiaries, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed to be the transfer
of all or substantially all of the properties and assets of the Company.
(c) No Guarantor (other than any Guarantor whose Subsidiary Guarantee is to be released in
accordance with the terms of the Subsidiary Guarantee and this Indenture in connection with any
transaction complying with the provisions of Section 4.12) will, and the
Company will not cause or permit any Guarantor to, consolidate with or merge with or into any
Person other than the Company or any other Guarantor unless:
(1) the entity formed by or surviving any such consolidation or merger (if other
than the Guarantor) is a corporation organized and existing under the laws of the United
States or any State thereof or the District of Columbia;
(2) such entity expressly assumes by supplemental indenture (in form and substance
satisfactory to the Trustee), executed and delivered to the Trustee, the performance of
every covenant of the Securities, this Indenture and the Registration Rights Agreement on
the part of such Guarantor to be performed or observed;
(3) immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing;
(4) immediately after giving effect to such transaction and the use of any net
proceeds therefrom on a pro forma basis, the Company could satisfy the
provisions of clause (a)(2) of this Section 5.01; provided, however, that
this clause (4) shall not be effective during any Suspension Period as described under
Section 4.22; and
(5) the Company shall have delivered to the Trustee an Officers’ Certificate and
Opinion of Counsel, each stating that such consolidation or merger and, if a
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supplemental
indenture is required in connection with such transaction, such supplemental indenture
comply with the applicable provisions of this Indenture and that all conditions precedent in
this Indenture relating to such transaction have been satisfied.
SECTION 5.02. Successor Corporation Substituted.
In accordance with the foregoing, upon any such consolidation, combination, merger,
conveyance, lease or any transfer of all or substantially all of the assets of the Company in which
the Company is not the continuing corporation, the Surviving Entity formed by such consolidation or
into which the Company is merged or to which such conveyance, lease or transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of, the Company under
this Indenture and the Securities with the same effect as if such successor had been named as the
Company herein, and thereafter the predecessor corporation will be relieved of all further
obligations and covenants under this Indenture, the Securities and the Registration Rights
Agreement; provided that solely for purposes of computing amounts described in subclause
(iii) of the first paragraph of Section 4.04, any such Surviving Entity shall only be deemed to
have succeeded to and be substituted for the Company with respect to periods subsequent to the
effective time of such merger, consolidation or transfer of assets.
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
An “Event of Default” occurs if
(1) the failure to pay interest on any Security when the same becomes due and
payable and the default continues for a period of 30 days;
(2) the failure to pay the principal on any Securities when such principal becomes
due and payable, at maturity, upon redemption or otherwise (including the failure to make a
payment to purchase Securities tendered pursuant to a Change of Control Offer or a Net
Proceeds Offer);
(3) a default by the Company or any Restricted Subsidiary in the observance or
performance of any other covenant or agreement contained in this Indenture which default
continues for a period of 30 days after the Company receives written notice specifying the
default from the Trustee or the Holders of at least 25% of the outstanding principal amount
of the Securities (except in the case of a default with respect to Article Five, which will
constitute an Event of Default with such notice requirement but without such passage of time
requirement);
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(4) a default under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness of the Company or of
any Restricted Subsidiary (or the payment of which is guaranteed by the Company or any
Restricted Subsidiary), whether such Indebtedness now exists or is created after the Issue
Date, which default (a) is caused by a failure to pay principal of such Indebtedness after
any applicable grace period provided in such Indebtedness on the date of such default (a
“Payment Default”), or (b) results in the acceleration of such Indebtedness prior to
its express maturity (and such acceleration is not rescinded, or such Indebtedness is not
repaid, within 30 days) and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under which there has been
a Payment Default or the maturity of which has been so accelerated, exceeds $75.0 million or
more at any time;
(5) the Company or any of its Restricted Subsidiaries (A) admits in writing its
inability to pay its debts generally as they become due, (B) commences a voluntary case or
proceeding under any Bankruptcy Law with respect to itself, (C) consents to the entry of a
judgment, decree or order for relief against it in an involuntary case or proceeding under
any Bankruptcy Law, (D) consents to the appointment of a Custodian of it or for substantially all of its property, (E) consents to or acquiesces in
the institution of a bankruptcy or an insolvency proceeding against it, (F) makes a general
assignment for the benefit of its creditors, or (G) takes any corporate action to authorize
or effect any of the foregoing;
(6) a court of competent jurisdiction enters a judgment, decree or order for relief
in respect of the Company or any of its Significant Subsidiaries in an involuntary case or
proceeding under any Bankruptcy Law, which shall (A) approve as properly filed a petition
seeking reorganization, arrangement, adjustment or composition in respect of the Company or
any of its Significant Subsidiaries, (B) appoint a Custodian of the Company or any of its
Significant Subsidiaries or for substantially all of any of their property or (C) order the
winding-up or liquidation of its affairs; and such judgment, decree or order shall remain
unstayed and in effect for a period of 60 consecutive days;
(7) one or more judgments in an aggregate amount in excess of $75.0 million not
covered by adequate insurance (other than self-insurance) shall have been rendered against
the Company or any of the Restricted Subsidiaries and such judgments remain undischarged,
unpaid or unstayed for a period of 60 days after such judgment or judgments become final and
nonappealable; or
(8) any Subsidiary Guarantee of a Significant Subsidiary ceases to be in full force
and effect, or any Subsidiary Guarantee of such a Significant Subsidiary is declared to be
null and void and unenforceable or any Subsidiary Guarantee of such a
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Significant Subsidiary
is found to be invalid or any Guarantor which is a Significant Subsidiary denies its
liability under its Subsidiary Guarantee (other than by reason of release of such Guarantor
in accordance with the terms of this Indenture).
The Trustee shall, within 90 days after the occurrence of any Default actually known to a
Responsible Officer of the Trustee, give to the Securityholders notice of such Default;
provided that, except in the case of a Default in the payment of principal of or interest
on any of the Securities, the Trustee shall be protected in withholding such notice if and so long
as a Responsible Officer of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Securityholders.
SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in clause (5) or (6) above)
shall occur and be continuing, the Trustee or the Holders of at least 25% in principal amount of
outstanding Securities may declare the principal of, premium, if any, and accrued and unpaid
interest on all the Securities to be due and payable by notice in writing to the Company (and to
the Trustee, if given by the Holders) specifying the respective Events of
Default and that it is a “notice of acceleration,” and the same shall become immediately due
and payable. If an Event of Default specified in clause (5) or (6) above occurs and is continuing,
then all unpaid principal of, premium, if any, and accrued and unpaid interest on all of the
outstanding Securities shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration with respect to the Securities as described in
the preceding paragraph, the Holders of a majority in principal amount of the then outstanding
Securities may rescind and cancel such declaration and its consequences;
(i) if the rescission would not conflict with any judgment or decree;
(ii) if all existing Events of Default have been cured or waived except nonpayment
of principal or interest that has become due solely because of the acceleration;
(iii) to the extent the payment of such interest is lawful, if interest on overdue
installments of interest and overdue principal, which has become due otherwise than by such
declaration of acceleration, has been paid;
(iv) if the Company has paid the Trustee its compensation and reimbursed the
Trustee for its reasonable expenses, disbursements and advances and any other sums owing to
the Trustee pursuant to Section 7.07; and
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(v) in the event of the cure or waiver of an Event of Default of the type described
in clauses (5) and (6) of the description above of Events of Default, the Trustee shall have
received an Officers’ Certificate and an Opinion of Counsel that such Event of Default has
been cured or waived.
No such rescission shall affect any subsequent Default or Event of Default or impair any right
consequent thereto.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
by proceeding at law or in equity to collect the payment of principal of or interest on the
Securities or to enforce the performance of any provision of the Securities, this Indenture or any
Subsidiary Guarantee.
The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available remedies are
cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Subject to Sections 6.02, 6.07 and 9.02, the Holders of a majority in principal amount of the
then outstanding Securities by written notice to the Trustee may waive an existing Default or Event
of Default and its consequences, except a Default in the payment of principal of or premium, if
any, or interest on any Security as specified in clauses (1) and (2) of Section 6.01. The Company
shall deliver to the Trustee an Officers’ Certificate stating that the requisite percentage of
Holders have consented to such waiver and attaching copies of such consents upon which the Trustee
may conclusively rely. When a Default or Event of Default is waived, it is cured and ceases.
SECTION 6.05. Control by Majority.
The Holders of not less than a majority in principal amount of the outstanding Securities may
direct the time, method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on it. Subject to Section 7.01, however, the
Trustee may refuse to follow any direction that conflicts with any law or this Indenture, that the
Trustee determines may be unduly prejudicial to the rights of another Securityholder, or that may
involve the Trustee in personal liability; provided that the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such direction.
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Prior to taking any action or following any direction pursuant to this Section 6.05, the
Trustee shall be entitled to indemnification from such Holders satisfactory to it in its sole
discretion against any fees, loss, liability, cost or expense caused by taking such action or
following such direction.
SECTION 6.06. Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this Indenture, the Securities or
any Subsidiary Guarantee unless
(1) the Holder gives to the Trustee written notice of a continuing Event of
Default;
(2) the Holder or Holders of at least 25% in principal amount of the outstanding
Securities make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 30 days after receipt of
the request and the offer and, if requested, the provision of indemnity; and
(5) during such 30-day period the Holder or Holders of a majority in principal
amount of the outstanding Securities do not give the Trustee a direction which, in the
opinion of the Trustee, is inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of another Securityholder
or to obtain a preference or priority over such other Securityholder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, but subject to Section 8.03, the right
of any Holder to receive payment of principal of, premium and interest on a Security, on or after
the respective due dates expressed in such Security, 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 the Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium or interest specified in clause (1) or
(2) of Section 6.01 occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company or any other obligor on the Securities for the
whole amount of principal and accrued interest remaining unpaid, together with interest on overdue
principal and, to the extent that payment of such interest is
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lawful, interest on overdue
installments of interest, in each case at the rate per annum borne by the Securities and such
further amount as shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents and take such other
actions as it may determine in its reasonable discretion to be necessary or advisable (including
participating as a member of any creditors committee acting in the matter) in order to have the
claims of the Trustee (including any claim for the reasonable compensation, expenses, legal fees,
disbursements and advances of the Trustee, its agents, nominees, custodians, counsel, accountants
and experts) and the Securityholders allowed in any judicial proceedings relating to the Company,
its creditors or its property and shall be entitled and
empowered to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same, and any Custodian in any such judicial proceedings is
hereby authorized by each Securityholder 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 Securityholders, to
pay to the Trustee any amount due to it for the reasonable compensation, expenses, legal fees,
disbursements and advances of the Trustee, its agents, nominees, custodians and counsel, and any
other amounts due the Trustee under Section 7.07. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the
rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this Article Six, it shall pay out
the money or property in the following order:
First: without duplication, to the Trustee for amounts owing under Section 7.07;
Second: if the Holders are forced to proceed against the Company, a Guarantor or any
other obligor on the Securities directly without the Trustee, to Holders for their
collection costs;
Third: subject to Article Twelve, to Holders for amounts due and unpaid on the
Securities for principal, premium and interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Securities for principal, premium
and interest, respectively; and
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Fourth: to the Company or any Guarantors, as their respective interests may appear or
to such party as directed by a court of competent jurisdiction.
The Trustee, upon prior notice to the Company, may fix a record date and payment date for any
payment to Securityholders pursuant to this Section 6.10.
SECTION 6.11. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security is registered at the
close of business on the Record Date for such interest.
Any interest on any Security which is payable, but is not punctually paid or duly provided
for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith
cease to be payable to the Holder on such Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the Company, at its election in each case, as provided in
subsection (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons
in whose names the Securities are registered at the close of business on a special Record
Date (the “Special Record Date”) for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security 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 satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this subsection provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date. In the name and at the expense of the Company, the Trustee shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder at his address as it
appears in the Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities (or their respective predecessor securities) are registered on
such Special Record Date and shall no longer be payable pursuant to the following subsection
(2).
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(2) The Company may make payment of any Defaulted Interest in any other lawful
manner not inconsistent with the requirements of any securities exchange on which the
Company has caused the Securities to be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of the proposed payment
pursuant to this subsection, such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 6.12. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.12 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by a Holder or Holders
of more than 10% in principal amount of the outstanding Securities.
ARTICLE VII
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default actually known to a Responsible Officer of the Trustee has
occurred and is continuing, the Trustee shall exercise such of 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 its own affairs. Subject to such
provisions, the Trustee shall be under no obligation to exercise any of its rights or powers under
this Indenture at the request of any of the Holders of Securities, unless they shall have offered
to the Trustee security and indemnity satisfactory to it in its sole discretion.
(b) Except during the continuance of an Event of Default actually known to a Responsible
Officer of the Trustee:
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(1) The Trustee need perform only those duties as are specifically set forth herein
and no others and no implied covenants or obligations shall be read into this Indenture
against the Trustee.
(2) In the absence of bad faith 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 and such other documents delivered to it pursuant to Section 11.04
hereof furnished to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions 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 paragraph (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 of the Trustee, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of its duties hereunder
or to take or omit to take any action under this Indenture or take any action at the request or
direction of Holders if it shall have reasonable grounds for believing that repayment of such funds
is not assured to it or it does not receive an indemnity satisfactory to it in its sole discretion
against such risk, liability, loss, fee or expense which might be incurred by it in compliance with
such request or direction.
(e) Every provision of this Indenture that in any way relates to the Trustee is subject to
this Section 7.01.
(f) 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. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
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SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may conclusively rely and shall be protected in acting or
refraining from acting on any document believed by it to be genuine and to have been signed
or presented by the proper Person. The Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers’
Certificate and an Opinion of Counsel, which shall conform to the provisions of Section
11.05. The Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys, agents, custodians and nominees and
shall not be responsible for the misconduct or negligence of any attorney, agent, custodian
or nominee (other than such a person who is an employee of the Trustee) 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 reasonably believes to be authorized or within its rights or powers
conferred upon it by this Indenture.
(e) The Trustee may consult with counsel of its selection and the advice or opinion
of 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 under this
Indenture, in good faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request, order or direction of any of the
Holders pursuant to the provisions of this Indenture, unless such Holders shall have offered
to the Trustee security or indemnity satisfactory to the Trustee against the fees, costs,
expenses and liabilities which may be incurred therein or thereby.
(g) The Trustee shall not have any duty as to inquire as to the performance by the
Company of its covenants or obligations under this Indenture. The Trustee shall not be
deemed to have notice or any knowledge of any matter unless a Responsible Officer assigned
to and working in the Trustee’s Corporate Trust Department has actual knowledge thereof or
unless written notice thereof is received by the Trustee, attention: Corporate Trust
Department, and such notice references the Securities generally, the Company or this
Indenture.
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(h) The rights, privileges, protections, immunities and benefits given to the
Trustee, including, without limitation, its right to be indemnified, are extended to, and
shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
(i) The Trustee may request that the Company deliver an Officers’ 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 Officers’ Certificate may be signed
by any person authorized to sign an Officers’ Certificate, including any person specified as
so authorized in any such certificate previously delivered and not superseded.
(j) The Trustee shall not be required to take notice or be deemed to have notice of
any default or Event of Default hereunder unless a Responsible Officer of the Trustee shall
receive notice of such default or Event of Default, which is in fact a default or Event of
Default, in writing at the Corporate Trust Office of the Trustee by the Company or by the
Holder of a Security and such notice references the Securities and this Indenture, and in
the absence of such notice the Trustee may conclusively assume that no default or Event of
Default exists;
(k) The Trustee shall not be liable with respect to any action taken or omitted to
be taken by it in good faith in accordance with any direction of the Holders of the
applicable percentage of the Holders of outstanding Securities permitted to be given by them
under this Indenture;
(l) The permissive right of the Trustee to do things enumerated in this Indenture
shall not be construed as a duty to take such action;
(m) Any request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company request or Company order and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
(n) 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 at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation; and
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(o) In no event shall the Trustee be responsible or liable for special, indirect,
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.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company, its Subsidiaries, any Guarantors and their
respective Affiliates with the same rights it would have if it were not Trustee. Any Agent may do
the same with like rights. However, the Trustee must comply with Sections 7.10 and 7.11 of this
Indenture as well as the provisions of the TIA.
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 or the Securities, it shall not be accountable for the Company’s use of
the proceeds from the Securities or any money paid to the Company or upon the Company’s direction
under any provision of this Indenture, and it shall not be responsible for any statement of the
Company in this Indenture or any document issued in connection with the sale of Securities
(including without limitation any preliminary or final offering memorandum) or any statement in the
Securities other than the Trustee’s certificate of authentication. The Trustee shall not be
accountable for the use or application of any money received by any Paying Agent other than the
Trustee. The Trustee makes no representations with respect to the effectiveness or adequacy of
this Indenture. The Trustee shall not be responsible for independently ascertaining or maintaining
such validity, if any, and shall be fully protected in relying upon certificates and opinions
delivered to it in accordance with the terms of this Indenture.
SECTION 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and a Responsible Officer of the
Trustee receives written notice of such event, the Trustee shall mail to each Securityholder, as
their names and addresses appear on the Securityholder list described in Section 2.05, notice of
the uncured Default or Event of Default within 90 days after the Trustee receives such notice (or
30 days in the case of a Default or Event of Default specified in the following sentence). Except
in the case of a Default or an Event of Default in payment of principal of, premium or interest on,
any Security, including the failure to make payment on (i) the Change of Control Payment Date
pursuant to a Change of Control Offer or (ii) the Net Proceeds Offer Payment Date pursuant to an
Net Proceeds Offer, the Trustee may withhold the notice if and so long as a Responsible Officer of
the Trustee in good faith determines that withholding the notice is in the interest of the
Securityholders.
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SECTION 7.06. Reports by Trustee to Holders.
This Section 7.06 shall not be operative as a part of this Indenture until this Indenture is
qualified under the TIA, and, until such qualification, this Indenture shall be construed as if
this Section 7.06 were not contained herein.
Within 60 days after each May 15 of each year beginning with 2011, the Trustee shall, to the
extent that any of the events described in TIA § 313(a) occurred within the previous twelve months,
but not otherwise, mail to each Securityholder a brief report dated as of such May 15 that complies
with TIA § 313(a). The Trustee also shall comply with TIA §§ 313(b), 313(c) and 313(d).
A copy of each report at the time of its mailing to Securityholders shall be mailed to the
Company and filed with the Commission and each securities exchange, if any, on which the Securities
are listed.
The Company shall notify a Responsible Officer of the Trustee in writing if the Securities
become listed on any securities exchange or of any delisting thereof.
SECTION 7.07. Compensation and Indemnity.
(a) The Company and Guarantors shall pay to the Trustee from time to time such
compensation for its services hereunder as the Company and the Trustee shall from time to time
agree in writing. The Trustee’s compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company and Guarantors shall reimburse the Trustee upon request
for all reasonable disbursements, expenses and advances (including reasonable fees and expenses of
counsel) incurred or made by it in addition to the compensation for its services, except any such
disbursements, expenses and advances as shall be determined to have been caused by the Trustee’s
own negligence or willful misconduct. Such expenses shall include the reasonable compensation,
legal fees, disbursements and expenses of the Trustee’s agents, accountants, experts, nominees,
custodians and counsel and any taxes or other expenses incurred by a trust created pursuant to
Section 8.01.
(b) The Company and Guarantors shall jointly and severally indemnify each of the Trustee,
its directors, officers, employees, agents, affiliates, successors and each predecessor Trustee
for, and hold them harmless against, any loss, claim, damage, liability or expense incurred by the
Trustee, without negligence or willful misconduct on its part arising out of or in connection with
the acceptance and administration of this trust and its duties under this Indenture, including the
reasonable fees and expenses of its attorneys (including without limitation for defending itself
against any claim of liability arising hereunder). The Trustee shall notify the Company reasonably
promptly of any claim asserted against the Trustee of which a Responsible Officer has received
written notice for which it may seek indemnity. However, the failure by the Trustee to so notify
the Company shall not relieve the Company
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and Guarantors of their obligations hereunder. The Company and Guarantors shall defend the
claim and the Trustee shall cooperate in the defense (and may employ its own counsel) at the
Company’s and Guarantor’s expense. The Company need not pay for any settlement made without its
written consent, which consent shall not be unreasonably withheld or delayed. The Company and
Guarantors need not reimburse any expense or indemnify against any loss, expense, claim, damage or
liability incurred by the Trustee determined by a court of competent jurisdiction to have been
caused by the Trustee’s own negligence or willful misconduct.
(c) To secure the payment obligations of the Company and Guarantors in this Section 7.07,
the Trustee shall have a Lien prior to any Lien held by the Securityholders on all money and
property held or collected by the Trustee as such for so long as the Trustee holds such money and
property, except funds and property held in trust for the payment of principal of (and premium, if
any) or interest on particular Securities. Such Lien shall survive the satisfaction and discharge
of this Indenture for so long as the Trustee holds such money and property.
When the Trustee incurs expenses or renders services after an Event of Default specified in
clause (5) or (6) of Section 6.01 occurs, the expenses (including the reasonable fees and expenses
of its agents and counsel) and the compensation for the services shall be preferred over the status
of the Holders in a proceeding under any Bankruptcy Law and are intended to constitute expenses of
administration under any Bankruptcy Law. The Company’s obligations under this Section 7.07 and any
claim arising hereunder shall survive termination of this Indenture, the resignation or removal of
any Trustee, the discharge of the Company’s obligations pursuant to Article Eight and any rejection
or termination under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying the Company in writing. The Holders of a
majority in principal amount of the outstanding Securities may remove the Trustee by so notifying
the Company and the Trustee in writing and may appoint a successor Trustee with the Company’s
consent. The Company may remove the Trustee if
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or its property;
or
(4) the Trustee becomes legally incapable of acting with respect to its duties
hereunder.
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If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall notify each Holder of such event and shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in
principal amount of the Securities may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer, after
payment of all sums then owing to the Trustee pursuant to Section 7.07, all property held by it as
Trustee to the successor Trustee, subject to the lien provided in Section 7.07, 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; provided,
however, that no Trustee under this Indenture shall be liable for any act or omission of
any successor Trustee. A successor Trustee shall mail notice of its succession to each
Securityholder.
If a successor Trustee does not take office within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee (at the expense of the Company), the Company or the Holders of
at least 10% in principal amount of the outstanding Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’s
obligations under Section 7.07 shall continue for the benefit of the retiring Trustee and the
Company shall pay to any such replaced or removed Trustee all amounts owed under Section 7.07 upon
such replacement or removal.
SECTION 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the resulting, surviving or transferee
corporation without any further act shall, if such resulting, surviving or transferee corporation
is otherwise eligible hereunder, be the successor Trustee. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such successor Trustee had
itself authenticated such Securities.
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SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirement of TIA §§ 310(a)(1)
and 310(a)(5). The Trustee shall have a combined capital and surplus of at least $50,000,000 as
set forth in its most recent published annual report of condition. The Trustee shall comply with
TIA § 310(b); provided, however, that there shall be excluded from the operation of
TIA § 310(b)(1) any indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Company are outstanding, if the requirements
for such exclusion set forth in TIA § 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against
Company.
The Trustee, in its capacity as Trustee hereunder, shall comply with TIA § 311(a), excluding
any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall
be subject to TIA § 311(a) to the extent indicated.
ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option and at any time, with respect to the Securities, elect
to have either paragraph (b) or paragraph (c) below applied to the outstanding Securities upon
compliance with the conditions set forth in paragraph (d).
(b) Upon the Company’s exercise under paragraph (a) of the option applicable to this
paragraph (b), the Company and the Guarantors shall be deemed to have been released and discharged
from their obligations with respect to the outstanding Securities on the date the conditions set
forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, such Legal
Defeasance means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be
“outstanding” only for the purposes of the Sections and matters under this Indenture referred to in
(i) and (ii) below, and to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned, except for the following, which shall survive
until otherwise terminated or discharged hereunder: (i) the rights of the Holders of outstanding
Securities to receive payments in respect of the principal of, premium, if any, and interest on
such Securities when such payments are due, (ii) the Company’s obligations to issue temporary
Securities, register the transfer or exchange of any Securities, replace mutilated, destroyed, lost
or stolen Securities and maintain an office or agency for payments in respect of the Securities,
(iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company’s
obligations in connection therewith and (iv) the Legal Defeasance provisions of this Indenture.
The Company may exercise its option under
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this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below
with respect to the Securities.
(c) Upon the Company’s exercise under paragraph (a) of the option applicable to this
paragraph (c), the Company and the Guarantors shall be released and discharged from their
obligations under any covenant contained in Article Five and in Sections 4.03 through 4.21 with
respect to the outstanding Securities on and after the date the conditions set forth below are
satisfied (hereinafter, “Covenant Defeasance”), and the Securities shall thereafter be
deemed to be not “outstanding” for the purpose 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. For this purpose, such
Covenant Defeasance means that, with respect to the outstanding Securities, the Company and any
Guarantor 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(3), nor shall any event referred to
in Section 6.01(4) or (7) thereafter constitute a Default or an Event of Default thereunder but,
except as specified above, the remainder of this Indenture and such Securities shall be unaffected
thereby.
(d) The following shall be the conditions to application of either paragraph (b) or
paragraph (c) above to the outstanding Securities:
(1) The Company must irrevocably deposit with the Trustee, in trust, for the
benefit of the Holder pursuant to an irrevocable trust and security agreement in form and
substance reasonably satisfactory to the Trustee, U.S. Legal Tender or direct non-callable
obligations of, or non-callable obligations guaranteed by, the United States of America for
the payment of which obligation or guarantee the full faith and credit of the United States
of America is pledged (“U.S. Government Obligations”) or a combination thereof,
maturing as to principal and interest in such amounts and at such times as are sufficient,
without consideration of the reinvestment of such interest and principal and after payment
of all federal, state and local taxes or other charges or assessments in respect thereof
payable by the Trustee, in the opinion of a nationally recognized firm of Independent public
accountants, selected by the Company, expressed in a written certification thereof (in form
and substance reasonably satisfactory to the Trustee) delivered to the Trustee, to pay the
principal of, premium, if any, and interest on all the outstanding Securities on the dates
on which any such payments are due and payable in accordance with the terms of this
Indenture and of the Securities;
(2) Such deposits shall not cause the Trustee to have a conflicting interest as
defined in and for purposes of the TIA;
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(3) The Trustee shall have received Officers’ Certificates stating that no Default
or Event of Default or event which with notice or lapse of time or both would become a
Default or an Event of Default with respect to the Securities shall have occurred and be
continuing on the date of such deposit or, insofar as Section 6.01(5) or (6) is concerned,
at any time during the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until the expiration of
such period);
(4) The Trustee shall have received Officers’ Certificates stating that such
deposit will not result in a Default under this Indenture or a breach or violation of, or
constitute a default under, any other material instrument or agreement to which the Company
or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;
(5) (i) In the event the Company elects paragraph (b) hereof, the Company shall
deliver to the Trustee an Opinion of Counsel in the United States, in form and substance
reasonably acceptable to the Trustee confirming 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 federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm that, Holders of
the Securities will not recognize income, gain or loss for federal income tax purposes as a
result of such deposit and the defeasance contemplated hereby and will be subject to federal
income taxes on the same amounts, in the same manner and at the same times as would have
been the case if such deposit and defeasance had not occurred, or (ii) in the event the
Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of
Counsel in the United States, in form and substance reasonably acceptable to the Trustee,
confirming that, Holders of the Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and the defeasance contemplated
hereby and will be subject to federal income tax on the same amounts and in the same manner
and at the same times as would have been the case if such deposit and defeasance had not
occurred;
(6) The Company shall have delivered to the Trustee an Opinion of Counsel stating
that as a result of the Legal Defeasance or Covenant Defeasance, neither the Trustee nor the
trust have become or are deemed to have become an “investment company” under the Investment
Company Act of 1940, as amended;
(7) The Company shall have delivered to the Trustee an Officers’ Certificate, in
form and substance reasonably satisfactory to the Trustee, stating that the deposit under
clause (1) was not made by the Company, a Guarantor or any Subsidiary of the Company with
the intent of preferring the Holders of Securities over any other
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creditors of the Company
or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company, a Guarantor, or any Subsidiary of the
Company or others;
(8) The Company shall have delivered to the Trustee an Opinion of Counsel, in form
and substance reasonably satisfactory to the Trustee, to the effect that, after the 91st day
following the deposit, the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights
generally;
(9) The Company has delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent specified herein relating to
the defeasance contemplated by this Section 8.01 have been complied with; provided,
however, that no deposit under clause (1) above shall be effective to terminate the
obligations of the Company under the Securities or this Indenture prior to 90 days following
any such deposit; and
(10) The Company shall have paid all amounts owing to the Trustee pursuant to
Section 7.07.
Notwithstanding the foregoing, the Opinion of Counsel required by paragraph (5) above need not
be delivered if all Securities not theretofore delivered to the Trustee for cancellation (i) have
become due and payable, (ii) will become due and payable on the maturity date for the securities
within one year, or (iii) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company.
In the event all or any portion of the Securities are to be redeemed through such irrevocable
trust, the Company must make arrangements satisfactory to the Trustee, at the time of such deposit,
for the giving of the notice of such redemption or redemptions by the Trustee in the name and at
the expense of the Company.
SECTION 8.02. Satisfaction and Discharge.
In addition to the Company’s rights under Section 8.01, the Company may terminate all of its
obligations under this Indenture (subject to Section 8.03) when
(1) all Securities theretofore authenticated and delivered (other than Securities
which have been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 2.07 and Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust) have been delivered to the Trustee for cancellation; or
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(2) all Securities not theretofore delivered to the Trustee for cancellation
(except lost, stolen or destroyed Securities which have been replaced or paid) have (i)
become due and payable, (ii) will become due and payable at their stated maturity within one
year or (iii) are to be called for redemption within one year under arrangements
satisfactory to the Trustee, and the Company has irrevocably deposited or caused to be
deposited with the Trustee funds in an amount sufficient to pay and discharge the entire
Indebtedness on the Securities not theretofore delivered to the Trustee for cancellation,
for principal of, premium, if any, and interest on the Securities to the date of deposit
together with irrevocable instructions from the Company directing the Trustee to apply such
funds to the payment thereof at maturity or redemption, as the case may be; and
(3) the Company and/or the Guarantors have paid or caused to be paid all other sums
payable under this Indenture; and
(4) there exists no Default or Event of Default under this Indenture; and
(5) the Company has delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent specified herein relating to
the satisfaction and discharge of this Indenture have been complied with; and
(6) the Company shall have paid all amounts owing to the Trustee pursuant to
Section 7.07.
SECTION 8.03. Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this Indenture and of the Securities
referred to in Section 8.01 or 8.02, the respective obligations of the Company and the Trustee
under Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.10, 2.12, 2.13, 4.01 (only in the case of
Section 8.01), 4.02 and 6.07 (only in the case of Section 8.01), Article Seven and Sections 8.05,
8.06 and 8.07 shall survive until the Securities are no longer outstanding, and thereafter the
obligations of the Company and the Trustee under Sections 7.07, 8.05, 8.06 and 8.07 shall survive
such satisfaction and discharge. Nothing contained in this Article Eight shall abrogate any of the
rights, obligations or duties of the Trustee under this Indenture.
SECTION 8.04. Acknowledgment of Discharge by Trustee.
Subject to Section 8.07, after (i) the conditions of Section 8.01 or 8.02 have been satisfied,
(ii) the Company has paid or caused to be paid all other sums payable hereunder by the Company, and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent referred to in clause (i) above relating to the
satisfaction and discharge of this Indenture have been complied with, the Trustee upon written
request shall acknowledge in writing the discharge of the
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Company’s obligations under this Indenture except for those surviving obligations specified in
Section 8.03.
SECTION 8.05. Application of Trust Assets.
The Trustee shall hold any U.S. Legal Tender or U.S. Government Obligations deposited with it
in the irrevocable trust established pursuant to Section 8.01. The Trustee shall apply the
deposited U.S. Legal Tender or the U.S. Government Obligations, together with earnings thereon,
through the Paying Agent, in accordance with this Indenture and the terms of the irrevocable trust
agreement established pursuant to Section 8.01, to the payment of principal of and interest on the
Securities. The U.S. Legal Tender or U.S. Government Obligations so held in trust and deposited
with the Trustee in compliance with Section 8.01 shall not be part of the trust estate under this
Indenture, but shall constitute a separate trust fund for the benefit of all Holders entitled
thereto.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 8.01 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 outstanding Securities.
SECTION 8.06. Repayment to the Company or Guarantors;
Unclaimed Money.
Subject to Sections 7.07 and 8.01 and to applicable laws relating to escheat, the Trustee
shall promptly pay to the Company, or if deposited with the Trustee by any Guarantor, to such
Guarantor, upon receipt by the Trustee of an Officers’ Certificate, any excess money, determined in
accordance with Section 8.01, held by it at any time. The Trustee and the Paying Agent shall pay
to the Company or any Guarantor, as the case may be, upon receipt by the Trustee or the Paying
Agent, as the case may be, of an Officers’ Certificate, any money held by it for the payment of
principal, premium, if any, or interest that remains unclaimed for two years after payment to the
Holders is required;
provided,
however, that the Trustee and the Paying Agent
before being required to make any payment may, but need not, at the expense of the Company cause to
be published once in a newspaper of general circulation in The City of
New York or mail to each
Holder entitled to such money notice that such money remains unclaimed and that after a date
specified therein (which shall not be less than 30 days from the date of such mailing or
publication and shall be at least two years after the date such money held by the Trustee for the
payment of principal, premium, if any, or interest remains unclaimed), any unclaimed balance of
such money then remaining will be repaid to the Company. After payment to the Company or any
Guarantor, as the case may be, Securityholders entitled to such money must look solely to the
Company for payment as general creditors unless an applicable abandoned property law designates
another Person, and all liability of the Trustee or Paying Agent with respect to such money shall
thereupon cease.
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SECTION 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in
accordance with this Indenture 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, then and only then the Company’s and each Guarantor’s, if any, obligations under
this Indenture and the Securities shall be revived and reinstated as though no deposit had been
made pursuant to this Indenture until such time as the Trustee is permitted to apply all such money
or U.S. Government Obligations in accordance with this Indenture; provided,
however, that if the Company or the Guarantors, as the case may be, have made any payment
of principal of, premium, if any, or interest on any Securities because of the reinstatement of
their obligations, the Company or the Guarantors, as the case may be, shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company and any Guarantors (when authorized by Board Resolutions), and the Trustee,
together, may amend or supplement this Indenture without notice to or consent of any Securityholder
(1) to cure any ambiguity, defect or inconsistency;
(2) to evidence the succession in accordance with Article Five hereof of another
Person to the Company or a Guarantor and the assumption by any such successor of the
covenants of the Company or a Guarantor herein and in the Securities or a Subsidiary
Guarantee, as the case may be;
(3) to provide for uncertificated Securities in addition to or in place of
certificated Securities;
(4) to make any other change that does not materially adversely affect the rights
of any Securityholders hereunder;
(5) to comply with any requirements of the Commission in connection with the
qualification of this Indenture under the TIA; or
(6) to add or release any Guarantor pursuant to the terms of this Indenture;
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provided that each of the Company and any Guarantors has delivered to the Trustee an
Opinion of Counsel and an Officers’ Certificate, each stating that such amendment or supplement
complies with the provisions of this Section 9.01; and provided, further, that such
amendment or supplement does not adversely affect the rights of any of the Holders in any material
respect. In formulating its opinion on such matters, the Trustee will be entitled to rely on such
evidence as it deems appropriate, including, without limitation, solely on an Opinion of Counsel.
SECTION 9.02. With Consent of Holders.
Subject to Section 6.07, the Company and any Guarantors (when authorized by Board Resolutions)
and the Trustee, together, with the written consent of the Holder or Holders of at least a majority
in aggregate principal amount of the then outstanding Securities, may amend or supplement this
Indenture, the Securities and any Subsidiary Guarantees without notice to any other
Securityholders. Subject to Section 6.07, the Holder or Holders of a majority in aggregate
principal amount of the then outstanding Securities may waive compliance by the Company with any
provision of this Indenture or the Securities without notice to any other Securityholder
(including, without limitation, the provisions of Section 4.22). Without the consent of each
Securityholder affected, however, no amendment, supplement or waiver, including a waiver pursuant
to Section 6.04, may
(1) reduce the principal amount of Securities whose Holders must consent to an
amendment, supplement or waiver of any provision of this Indenture, the Securities or any
Subsidiary Guarantees;
(2) reduce the rate of or change or have the effect of changing the time for
payment of interest, including defaulted interest, on any Security;
(3) reduce the principal of or change or have the effect of changing the fixed
maturity of any Securities; or change the date on which any Securities may be subject to
redemption, or reduce the redemption price therefor;
(4) make any Securities payable in money other than that stated in the Securities;
(5) make any change in provisions of this Indenture protecting the right of each
Holder to receive payment of principal of, premium, if any, and interest on such Securities
on or after the stated due date thereof or to bring suit to enforce such payment, or
permitting Holders of a majority in principal amount of the then outstanding Securities to
waive Defaults or Events of Default;
(6) amend, change or modify in any material respect the obligations of the Company
to make and consummate a Change of Control Offer after the occurrence of
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a Change of Control or make and consummate a Net Proceeds Offer with respect to any
Asset Sale that has been consummated or modify any of the provisions or definitions with
respect thereto;
(7) modify or change any provision of this Indenture or the related definitions
affecting the ranking of the Securities or any Subsidiary Guarantee in a manner which
adversely affects the Holders;
(8) modify the provisions of Section 4.19, 6.04, 6.07 or this Section 9.02 in any
manner adverse to a Holder of Securities; or
(9) release any Guarantor from any of its obligations under its Subsidiary
Guarantee or this Indenture otherwise than in accordance with the terms of this Indenture.
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, but it shall be sufficient if
such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company shall mail to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental indenture.
SECTION 9.03. Compliance with TIA.
From the date on which this Indenture is qualified under the TIA, every amendment, waiver or
supplement of this Indenture or the Securities shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder’s Security, even if notation of the consent
is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent
as to his Security or portion of his Security by written notice to the Trustee or the Company
received before the date on which the Trustee receives an Officers’ Certificate certifying that the
Holders of the requisite principal amount of Securities have consented (and not theretofore revoked
such consent) to the amendment, supplement or waiver.
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The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement or waiver. If a record
date is fixed, then notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall bind every
Securityholder, unless it makes a change described in any of clauses (1) through (9) of Section
9.02, in which case, the amendment, supplement or waiver shall bind only each Holder of a Security
who has consented to it and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder’s Security; provided that any such waiver
shall not impair or affect the right of any Holder to receive payment of principal of and interest
on a Security, on or after the respective due dates expressed in such Security, or to bring suit
for the enforcement of any such payment on or after such respective dates without the consent of
such Holder.
SECTION 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security, the Trustee may require
the Holder of the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security about the changed terms and return it to the Holder. Alternatively, if
the Company or the Trustee so determines, the Company in exchange for the Security shall issue and
the Trustee shall authenticate a new Security that reflects the changed terms. Failure to make the
appropriate notation or to issue a new Security shall not affect the validity and effect of such
amendment, supplement or waiver.
SECTION 9.06. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver authorized pursuant to this
Article Nine; provided that the Trustee may, but shall not be obligated to, execute any
such amendment, supplement or waiver which affects the Trustee’s own rights, duties or immunities
under this Indenture. The Trustee shall receive, and shall be fully protected in relying upon, an
Opinion of Counsel and an Officers’ Certificate, each stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article Nine is authorized or permitted by this
Indenture and constitutes the legal, valid and binding obligation of the Company and any Guarantor
enforceable in accordance with its terms (subject to customary exceptions) and stating that all
conditions precedent to such amendment, supplement or waiver have been satisfied and, in the case
of any supplemental indenture required by Section 4.18, constitutes a guarantee as defined therein.
Such Opinion of Counsel shall be at the expense of the Company, and the Trustee shall have a lien
under Section 7.07 for any such expense.
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ARTICLE X
GUARANTEE
SECTION 10.01. Unconditional Guarantee.
Each Guarantor agrees to fully and unconditionally, jointly and severally, guarantee to each
Holder of a Security authenticated and delivered by the Trustee, and to the Trustee and its
successors and assigns, that (i) the principal of, premium, if any, and interest on the Securities
will be promptly paid in full when due, subject to any applicable grace period, whether at
maturity, by acceleration or otherwise and interest on the overdue principal, if any, and interest
on any interest, to the extent lawful, of the Securities and all other Obligations of the Company
to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of
payment or renewal of any Securities or of any such other Obligations, the same will be promptly
paid in full when due or performed in accordance with the terms of the extension or renewal,
subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise
subject, however, in the case of clauses (i) and (ii) above, to the limitations set forth in
Section 10.03. Each Guarantor agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Securities
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 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 its Subsidiary Guarantee will not be discharged except by
complete performance of the obligations contained in the Securities, this Indenture and each
Subsidiary Guarantee. If any Securityholder or the Trustee is required by any court or otherwise
to return to the Company, any Guarantor or any custodian, trustee, liquidator or other similar
official acting in relation to the Company or any Guarantor, any amount paid by the Company or any
Guarantor to the Trustee or such Securityholder, each Subsidiary Guarantee to the extent
theretofore discharged, shall be reinstated in full force and effect. Each Guarantor further
agrees that, as between each Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in
Article Six for the purposes of each Subsidiary Guarantee notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and
(y) in the event of any acceleration of such obligations as provided in Article Six, such
obligations (whether or not due and payable) shall forthwith become due and payable by each
Guarantor for the purpose of its Subsidiary Guarantee.
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SECTION 10.02. Severability.
In case any provision of a Subsidiary 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.
SECTION 10.03. Release of a Guarantor.
In the event of either (i) the issuance or sale of Capital Stock of a Guarantor in compliance
with this Indenture which results in the Guarantor no longer being a Subsidiary of the Company,
(ii) a Guarantor becoming an Unrestricted Subsidiary or (iii) the sale of all or substantially all
of the assets of a Guarantor pursuant to an Asset Sale which complies with the provisions of
Section 4.12, the applicable Guarantor’s Subsidiary Guarantee will be released.
The Trustee shall deliver an appropriate instrument evidencing such release upon receipt of a
written request by the Company accompanied by an Officers’ Certificate and Opinion of Counsel
certifying as to the compliance with this Section 10.03. Any Guarantor not so released remains
liable for the full amount of principal of and interest on the Securities as provided in this
Article Ten.
SECTION 10.04. Limitation of a Guarantor’s Liability.
Each Guarantor and, by its acceptance hereof, each Holder hereby confirms that it is the
intention of all such parties that the guarantee by such Guarantor pursuant to its Subsidiary
Guarantee not constitute a fraudulent transfer or conveyance for purposes of any Bankruptcy Law,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal
or state law. To effectuate the foregoing intention, the Holders and each Guarantor irrevocably
agree that the obligations of each Guarantor under its Subsidiary Guarantee shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed liabilities of such
Guarantor, and after giving effect to any collections from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under its Subsidiary
Guarantee, or pursuant to Section 10.05, result in the obligations of such Guarantor under its
Subsidiary Guarantee not constituting such fraudulent transfer or conveyance.
SECTION 10.05. Contribution.
In order to provide for just and equitable contribution among the Guarantors, the Guarantors
agree, inter se, that in the event any payment or distribution is made by any
Guarantor (a “Funding Guarantor”) under its Subsidiary Guarantee, such Funding Guarantor
shall be entitled to a contribution from all other Guarantors in a
pro rata amount based on the
Adjusted Net Assets of each Guarantor (including the Funding Guarantor) for all payments,
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damages and expenses incurred by that Funding Guarantor in discharging the Company’s
obligations with respect to the Securities or any other Guarantor’s obligations with respect to its
Subsidiary Guarantee. “Adjusted Net Assets” of a Guarantor at any date shall mean the
lesser of the amount by which (x) the fair value of the property of such Guarantor exceeds the
total amount of liabilities, including, without limitation, contingent liabilities (after giving
effect to all other fixed and contingent liabilities incurred or assumed on such date), but
excluding liabilities under the Subsidiary Guarantee of such Guarantor at such date and (y) the
present fair salable value of the assets of such Guarantor at such date exceeds the amount that
will be required to pay the probable liability of such Guarantor on its debts (after giving effect
to all other fixed and contingent liabilities incurred or assumed on such date), excluding debt in
respect of the Subsidiary Guarantee of such Guarantor, as they become absolute and matured.
SECTION 10.06. Waiver of Subrogation.
Until all Subsidiary Guarantee Obligations are paid in full, each Guarantor hereby irrevocably
waives any claims or other rights which it may now or hereafter acquire against the Company that
arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under
its Subsidiary Guarantee and this Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, indemnification, and any right to participate in any claim
or remedy of any Holder of Securities against the Company, whether or not such claim, remedy or
right arises in equity, or under contract, statute or common law, including, without limitation,
the right to take or receive from the Company, directly or indirectly, in cash or other property or
by set-off or in any other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to any Guarantor in violation of the preceding sentence and the
Securities shall not have been paid in full, such amount shall be deemed to have been paid to such
Guarantor for the benefit of, and held in trust for the benefit of, the Holders of the Securities,
and shall forthwith be paid to the Trustee for the benefit of such Holders to be credited and
applied upon the Securities, in accordance with the terms of this Indenture. Each Guarantor
acknowledges that it will receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in this Section 10.06 is knowingly
made in contemplation of such benefits.
SECTION 10.07. Execution of Subsidiary Guarantees.
To evidence its guarantee to the Securityholders set forth in this Article Ten, each Guarantor
shall execute a Subsidiary Guarantee in substantially the form of Exhibit G attached
hereto, which shall be endorsed on each Security ordered to be authenticated and delivered by the
Trustee. Each Guarantor agrees that its Subsidiary Guarantee set forth in this Article Ten shall
remain in full force and effect notwithstanding any failure to endorse on each Security a notation
of such Subsidiary Guarantee as well as a supplemental indenture as required by Section 4.18. Each
such Subsidiary Guarantee shall be signed on behalf of each
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Guarantor by two Officers, or an
Officer and a secretary, treasurer, controller or an assistant secretary of the Guarantor or one Officer shall sign and one Officer or a secretary,
treasurer, controller or an assistant secretary of the Guarantor (each of whom shall, in each case,
have been duly authorized by all requisite corporate actions) shall attest to such Subsidiary
Guarantee prior to the authentication of the Security on which it is endorsed, and the delivery of
such Security by the Trustee, after the authentication thereof hereunder, shall constitute due
delivery of such Subsidiary Guarantee on behalf of such Guarantor. Such signatures upon the
Subsidiary Guarantee may be by manual or facsimile signature of such officers and may be imprinted
or otherwise reproduced on the Subsidiary Guarantee, and in case any such officer who shall have
signed the Subsidiary Guarantee shall cease to be such officer before the Security on which such
Subsidiary Guarantee is endorsed shall have been authenticated and delivered by the Trustee or
disposed of by the Company, such Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed the Subsidiary Guarantee had not ceased to be such
officer of the Guarantor.
SECTION 10.08. Waiver of Stay, Extension or Usury Laws.
Each Guarantor covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay or extension law or any usury law or other law that would prohibit or forgive each such
Guarantor from performing its Subsidiary Guarantee as contemplated herein, wherever enacted, now or
at any time hereafter in force, or which may affect the covenants or the performance of this
Indenture; and (to the extent that it may lawfully do so) each such Guarantor hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or conflicts with the duties imposed by
operation of TIA § 318(c), the imposed duties shall control.
SECTION 11.02. Notices.
Any notices or other communications required or permitted hereunder shall be in writing, and
shall be sufficiently given if made by hand delivery, by telecopier or registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
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if to the Company or a Guarantor:
Tenneco Inc.
000 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
with a copy to:
General Counsel
Tenneco Inc.
000 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
if to the Trustee:
The Bank of
New York Mellon Trust Company, N.A.
0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Each of the Company and the Trustee by written notice to each other such Person may designate
additional or different addresses for notices to such Person. Any notice or communication to the
Company or a Guarantor or the Trustee shall be deemed to have been given or made as of the date so
delivered if personally delivered; when receipt is acknowledged, if telecopied; and five (5)
calendar days after mailing if sent by registered or certified mail, postage prepaid (except that a
notice of change of address shall not be deemed to have been given until actually received by the
addressee).
The Trustee agrees to accept and act upon instructions or directions pursuant to this
Indenture sent by unsecured e-mail, pdf, facsimile transmission or other similar unsecured
electronic methods, provided, however, that the Trustee shall have received an incumbency
certificate listing persons designated to give such instructions or directions and containing
specimen signatures of such designated persons, which such incumbency certificate shall be amended
and replaced whenever a person is to be added or deleted from the listing. If the Company elects
to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic
method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s
understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for
any losses, costs or expenses arising directly or indirectly from the Trustee’s
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reliance upon and compliance with such instructions notwithstanding such instructions conflict
or are inconsistent with a subsequent written instruction. The Company agrees to assume all risks
arising out of the use of such electronic methods to submit instructions and directions to the
Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions,
and the risk or interception and misuse by third parties.
Any notice or communication mailed to a Securityholder shall be mailed to him by first class
mail or other equivalent means at his address as it appears on the registration books of the
Registrar and shall be sufficiently given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any defect in it shall not
affect its sufficiency with respect to other Securityholders. If a notice or communication is
mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
SECTION 11.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA § 312(b) with other Securityholders with
respect to their rights under this Indenture, the Securities or any Subsidiary Guarantees. The
Company, the Trustee, the Registrar and any other Person shall have the protection of TIA § 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:
(1) an Officers’ Certificate, in form and substance satisfactory to the Trustee,
stating that, in the opinion of the signers, all conditions precedent, if any, provided for
in this Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture, other than the Officers’ Certificate required by Section 4.08, shall include
(1) a statement that the person making such certificate or opinion has read such
covenant or condition;
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(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 has made such examination
or investigation as is necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such person, such
condition or covenant has been complied with; provided, however, that with
respect to matters of fact an Opinion of Counsel may rely on an Officers’ Certificate or
certificates of public officials.
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee, Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.07. Legal Holidays.
If a payment date is not a Business Day, payment may be made on the next succeeding day that
is a Business Day with the same force and effect as if made on such payment date.
SECTION 11.08. Governing Law.
THIS INDENTURE, THE SECURITIES AND ANY GUARANTEES WILL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY. Each of the parties hereto hereby irrevocably and
unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating
to this Indenture, and the Securities to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of
the Courts of the State of
New York, the courts of the United States of America for the
Southern District of New York and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
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(c) agrees that service of process in any such action or proceeding may be effected
by mailing a copy thereof by registered or certified mail (or any substantially similar from
of mail), postage prepaid, to such person at its address referred to in Section 11.02 or at
such other address of which notice shall have been given pursuant thereto; and
(d) agrees that nothing herein shall affect the right to effect service of process
in any other manner permitted by law or shall limit the right to xxx in any other
jurisdiction.
SECTION 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt agreement of any
of the Company or any of its Subsidiaries or any Guarantor. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 11.10. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as such, of the Company or any of
its Subsidiaries or any Guarantor shall not have any liability for any obligations of the Company
or any Guarantor under the Securities, this Indenture or any Subsidiary Guarantee or for any claim
based on, in respect of or by reason of such obligations or their creations. Each Securityholder
by accepting a Security waives and releases all such liability. Such waiver and release are part
of the consideration for the issuance of the Securities.
SECTION 11.11. Successors.
All agreements of the Company and any Guarantors in this Indenture, the Securities and any
Subsidiary Guarantees shall bind their respective successors. All agreements of the Trustee in
this Indenture shall bind its successor.
SECTION 11.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture. Each signed copy or counterpart
shall be an original, but all of them together shall represent the same agreement.
SECTION 11.13. Severability.
In case any one or more of the provisions in this Indenture, in the Securities or in any
Subsidiary Guarantee shall be held invalid, illegal or unenforceable, in any respect for any
reason, the validity, legality and enforceability of any such provision in every other respect and
of the remaining provisions shall not in any way be affected or impaired thereby, it
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being intended that all of the provisions hereof shall be enforceable to the full extent
permitted by law.
SECTION 11.14. Table of Contents, Headings, Etc.
The table of contents, cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, and are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 11.15 Waiver of Jury Trial.
EACH OF THE COMPANY, THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVE, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
SECTION 11.16 Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
[Signature Pages Follow]
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the date first written above.
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TENNECO INC.
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By: |
/s/ Xxxx X. Xxxx
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Name: |
Xxxx X. Xxxx |
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Title: |
Vice President, Treasurer and Tax |
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TENNECO AUTOMOTIVE OPERATING COMPANY
INC.,
as
Guarantor
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By: |
/s/ Xxxx X. Xxxx
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Name: |
Xxxx X. Xxxx |
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Title: |
Vice President, Treasurer and Tax |
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THE PULLMAN COMPANY, as Guarantor
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By: |
/s/ Xxxx X. Xxxx
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Name: |
Xxxx X. Xxxx |
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Title: |
Vice President, Treasurer and Tax |
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CLEVITE INDUSTRIES INC., as Guarantor
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By: |
/s/ Xxxx X. Xxxx
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Name: |
Xxxx X. Xxxx |
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Title: |
Vice President, Treasurer and Tax |
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TENNECO GLOBAL HOLDINGS INC.,
as Guarantor
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By: |
/s/ Xxxx X. Xxxx
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Name: |
Xxxx X. Xxxx |
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Title: |
Vice President, Treasurer and Tax |
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[Signature Page to Indenture — Tenneco Inc. and Guarantors]
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TMC TEXAS INC., as Guarantor
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By: |
/s/ Xxxx X. Xxxx
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Name: |
Xxxx X. Xxxx |
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Title: |
Vice President, Treasurer and Tax |
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TENNECO INTERNATIONAL HOLDING CORP.,
as Guarantor
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By: |
/s/ Xxxx X. Xxxx
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Name: |
Xxxx X. Xxxx |
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Title: |
Vice President, Treasurer and Tax |
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[Signature
Page to Indenture — Tenneco Inc. and Guarantors]
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
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By: |
/s/ X. Xxxxxxxx
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Name: |
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Vice President |
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[Signature Page to Indenture — Trustee]
EXHIBIT A
[FORM OF SERIES A SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF,
AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE
RESTRICTION TERMINATION DATE”) THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF
AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION
S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF
RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED
INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION
IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (E) OR (F) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
A-1
6⅞% Senior Notes
due December 15, 2020
TENNECO INC., a Delaware corporation (the “
Company,” which term includes any successor
corporation), for value received promises to pay to Cede & Co. or registered assigns, the principal
sum of [ ] Dollars, on December 15, 2020.
Interest Payment Dates: June 15 and December 15, commencing June 15, 2011.
Record Dates: June 1 and December 1.
Reference is made to the further provisions of this Security contained herein, which will for
all purposes have the same effect as if set forth at this place.
A-2
IN WITNESS WHEREOF, the Company has caused this Security to be signed manually or by facsimile
by its duly authorized officers.
Dated: December 23, 2010
A-3
CERTIFICATE OF AUTHENTICATION
This is one of the 6⅞% Senior Notes due 2020 referenced in the within-mentioned Indenture.
Dated: December 23, 0000
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XXX XXXX XX XXX XXXX XXXXXX
TRUST COMPANY, N.A. as Trustee
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A-4
(REVERSE OF SECURITY)
TENNECO INC.
6⅞% Senior Notes
due December 15, 2020, Series A
1. Interest.
TENNECO INC., a Delaware corporation (the “Company”), promises to pay interest on the
principal amount of this Security at the rate per annum shown above. The Company will pay interest
semi-annually on June 15 and December 15 of each year (an “Interest Payment Date”),
commencing June 15, 2011. Interest on the Securities will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from December 23, 2010. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time to time on demand at the rate
borne by the Securities plus 2% and on overdue installments of interest (without regard to any
applicable grace periods) to the extent lawful.
2. Method of Payment.
The Company shall pay interest on the Securities (except defaulted interest) to the persons
who are the registered Holders at the close of business on the Record Date immediately preceding
the Interest Payment Date even if the Securities are canceled on registration of transfer or
registration of exchange after such Record Date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Company shall pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public and private debts.
The Company may deliver any such interest payment to the Paying Agent or to a Holder at the
Holder’s registered address.
3. Paying Agent and Registrar.
Initially, The Bank of New York Mellon Trust Company, N.A. (the “Trustee”) will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar or co-Registrar
without notice to the Holders.
4. Indenture.
The Company issued the Securities under an Indenture, dated as of December 23, 2010 (the
“Indenture”), between the Company and the Trustee. Capitalized terms herein are used as
defined in the Indenture unless otherwise defined herein. The terms of the Securities include
those stated in the Indenture and those made part of the Indenture by reference to
A-5
the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) (the “TIA”), as in effect
on the date of the Indenture until such time as the Indenture is qualified under the TIA, and
thereafter as in effect on the date on which the Indenture is qualified under the TIA.
Notwithstanding anything to the contrary herein, the Securities are governed by all such terms, and
Holders of Securities are referred to the Indenture and the TIA for a statement of them.
5. Optional Redemption.
The Securities will be redeemable, at the Company’s option, in whole at any time or in part
from time to time, on and after December 15, 2015 upon not less than 30 nor more than 60 days’
notice, at the following redemption prices (expressed as percentages of the principal amount
thereof) if redeemed during the twelve-month period commencing on December 15 of the applicable
year set forth below, plus, in each case, accrued and unpaid interest, if any, to the date of
redemption (subject to the right of holders of record on the relevant record date to receive
interest due on the relevant interest payment date):
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Year |
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Percentage |
2015 |
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103.438 |
% |
2016 |
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102.292 |
% |
2017 |
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101.146 |
% |
2018 and thereafter |
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100.000 |
% |
At any time prior to December 15, 2015, the Securities may also be redeemed in whole or in
part, at the Company’s option, at a redemption price equal to 100% of the principal amount thereof
plus the Applicable Premium as of, and accrued but unpaid interest, if any, to, the date of
redemption (subject to the right of holders of record on the relevant record date to receive
interest due on the relevant interest payment date).
6. Optional Redemption upon Equity Offerings.
At any time, or from time to time, on or prior to December 15, 2013, the Company may, at its
option, use all or any portion of the net cash proceeds of one or more Equity Offerings (as defined
below) to redeem up to 35% of the aggregate principal amount of the Securities issued at a
redemption price equal to 106.875% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of redemption (subject to the right of holders of record on the
relevant record date to receive interest due on the relevant interest payment date);
provided that at least 65% of the aggregate principal amount of Securities issued remains
outstanding immediately after any such redemption. In order to effect the foregoing redemption
with the proceeds of any Equity Offering, the Company shall make such redemption not more than 180
days after the consummation of any such Equity Offering.
As used in the preceding paragraph, “Equity Offering” means any public or private sale
of the common stock of the Company, other than any public offering with respect
A-6
to the Company’s common stock registered on Form S-8 or other issuances upon exercise of
options by employees of the Company or any of its Restricted Subsidiaries.
7. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more than 60 days before the
Redemption Date to each Holder of Securities to be redeemed at such Holder’s registered address.
Securities in denominations of $2,000 may be redeemed only in whole. The Trustee may select for
redemption portions (equal to $1,000 or any integral multiple thereof) of the principal of
Securities that have denominations larger than $2,000.
If any Security is to be redeemed in part only, the notice of redemption that relates to such
Security shall state the portion of the principal amount thereof to be redeemed. A new Security in
a principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the Redemption Date, interest
will cease to accrue on Securities or portions thereof called for redemption.
8. Change of Control Offer.
Upon the occurrence of a Change of Control, the Company will be required to offer to purchase
all of the outstanding Securities at a purchase price equal to 101% of the principal amount thereof
plus accrued and unpaid interest, if any, to the date of repurchase.
9. Limitation on Disposition of Assets.
The Company is, subject to certain conditions, obligated to make an offer to purchase
Securities at 100% of their principal amount plus accrued and unpaid interest to the date of
repurchase with certain net cash proceeds of certain sales or other dispositions of assets in
accordance with the Indenture.
10. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in denominations of $2,000 and
integral multiples of $1,000. A Holder shall register the transfer of or exchange Securities in
accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer taxes or similar
governmental charges payable in connection therewith as permitted by the Indenture. The Registrar
need not register the transfer of or exchange any Securities or portions thereof selected for
redemption, except the unredeemed portion of any security being redeemed in part.
A-7
11. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of it for all purposes.
12. Unclaimed Funds.
Subject to any applicable escheat laws, if funds for the payment of principal or interest
remain unclaimed for two years, the Trustee and the Paying Agent will repay the funds to the
Company at its request. After that, all liability of the Trustee and such Paying Agent with
respect to such funds shall cease.
13. Legal Defeasance and Covenant Defeasance.
The Company may be discharged from its obligations under the Indenture and the Securities
except for certain provisions thereof, and may be discharged from its obligations to comply with
certain covenants contained in the Indenture and the Securities, in each case upon satisfaction of
certain conditions specified in the Indenture.
14. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may be amended or supplemented
with the written consent of the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding, and any existing Default or Event of Default or compliance with any
provision may be waived with the consent of the Holders of a majority in aggregate principal amount
of the Securities then outstanding. Without notice to or consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Securities to, among other things, cure any
ambiguity, defect or inconsistency, provide for uncertificated Securities in addition to or in
place of certificated Securities or comply with any requirements of the Commission in connection
with the qualification of the Indenture under the TIA, or make any other change that does not
materially adversely affect the rights of any Holder of a Security.
15. Restrictive Covenants.
The Indenture contains certain covenants that, among other things, limit the ability of the
Company and certain of its subsidiaries to make restricted payments, to incur indebtedness, to
create liens, to issue preferred or other capital stock of subsidiaries, to sell assets, to permit
restrictions on dividends and other payments by subsidiaries to the Company, to consolidate, merge
or sell all or substantially all of its assets, to engage in transactions with affiliates or to
engage in certain businesses. The limitations are subject to a number of important qualifications
and exceptions.
A-8
16. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of Securities then outstanding may declare all the Securities to be due
and payable immediately in the manner and with the effect provided in the Indenture. Holders of
Securities may not enforce the Indenture or the Securities except as provided in the Indenture.
The Trustee is not obligated to enforce the Indenture or the Securities unless it has received
indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein
provided, Holders of a majority in aggregate principal amount of the Securities then outstanding to
direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of
Securities notice of any continuing Default or Event of Default (except a Default in payment of
principal, premium or interest, including an accelerated payment) if it determines that withholding
notice is in their interest.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity, may become the owner
or pledgee of Securities and may otherwise deal with the Company, its Subsidiaries, any Guarantor
and their respective Affiliates as if it were not the Trustee.
18. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as such, of the Company shall
have any liability for any obligation of the Company under the Securities or the Indenture or for
any claim based on, in respect of or by reason of, such obligations or their creation. Each Holder
of a Security by accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
19. Authentication.
This Security shall not be valid until the Trustee or authenticating agent signs the
certificate of authentication on this Security.
20. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Security or an assignee, such
as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants
with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Securities as a convenience
to the Holders of the Securities. No representation is made as
A-9
to the accuracy of such numbers as printed on the Securities and reliance may be placed only
on the other identification numbers printed hereon.
22. Registration Rights.
Pursuant to the Registration Rights Agreement, the Company will be obligated upon the
occurrence of certain events to consummate an exchange offer pursuant to which the Holder of this
Security shall have the right to exchange this Series A Security for the Company’s 6⅞% Senior Notes
due 2020, Series B (the “Series B Securities”), which have been registered under the
Securities Act, in like principal amount and having terms identical in all material respects as the
Series A Securities. The Holders shall be entitled to receive certain additional interest payments
in the event such exchange offer is not consummated and upon certain other conditions, all pursuant
to and in accordance with the terms of the Registration Rights Agreement.
The Company will furnish to any Holder of a Security upon written request and without charge a
copy of the Indenture. Requests may be made to TENNECO INC., 000 Xxxxx Xxxxx Xxxxx, Xxxx Xxxxxx,
XX 00000, Attention: Chief Financial Officer.
A-10
ASSIGNMENT FORM
I or we assign and transfer this Security to
(Print or type name, address and zip code of assignee or transferee)
(Insert Social Security or other identifying number of assignee or transferee)
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and irrevocably appoint |
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agent to transfer this
Security on the books of the Company.
The agent may substitute another to act for him. |
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Dated:
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Signed: |
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(Sign exactly as name appears on the
other side of this Security) |
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Signature Guarantee: |
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Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor reasonably acceptable to the Trustee) |
A-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to Section 4.12
or Section 4.21 of the Indenture, check the appropriate box:
Section 4.12 [ ] Section 4.21 [ ]
If you want to elect to have only part of this Security purchased by the Company pursuant to
Section 4.12 or Section 4.21 of the Indenture, state the amount: $
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Date:
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Your Signature: |
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(Sign exactly as your name appears
on the other side of this Security) |
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Signature Guarantee: |
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Participant in a recognized Signature Guarantee Medallion Program
(or other signature guarantor reasonably acceptable to the Trustee) |
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A-12
EXHIBIT B
[FORM OF SERIES B SECURITY]
TENNECO INC.
67/8% Senior Notes
due December 15, 2020, Series B
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CUSIP No.: [ ] |
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No. [ ] |
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$[ ] |
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TENNECO INC., a Delaware corporation (the “Company,” which term includes any successor
corporation), for value received promises to pay to Cede & Co. or registered assigns, the principal
sum of [ ], on December 15, 2020.
Interest Payment Dates: June 15 and December 15, commencing June 15, 2011.
Record Dates: June 1 and December 1.
Reference is made to the further provisions of this Security contained herein, which will for
all purposes have the same effect as if set forth at this place.
B-1
IN WITNESS WHEREOF, the Company has caused this Security to be signed manually or by facsimile
by its duly authorized officers.
Dated: [ ], [ ]
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TENNECO INC.
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By: |
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Name: |
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B-2
CERTIFICATE OF AUTHENTICATION
This is one of the 67/8% Senior Notes due 2020, Series B, referenced in the within-mentioned
Indenture.
Dated: [ ], [ ]
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. as Trustee
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By: |
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Name: |
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Title: |
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B-3
(REVERSE OF SECURITY)
TENNECO INC.
67/8% Senior Notes
Due December 15, 2020, Series B
1. Interest.
TENNECO INC., a Delaware corporation (the “Company”), promises to pay interest on the
principal amount of this Security at the rate per annum shown above. The Company will pay interest
semi-annually on June 15 and December 15 of each year (an “Interest Payment Date”),
commencing June 15, 2011. Interest on the Securities will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from December 23, 2010. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time to time on demand at the rate
borne by the Securities plus 2% and on overdue installments of interest (without regard to any
applicable grace periods) to the extent lawful.
2. Method of Payment.
The Company shall pay interest on the Securities (except defaulted interest) to the persons
who are the registered Holders at the close of business on the Record Date immediately preceding
the Interest Payment Date even if the Securities are canceled on registration of transfer or
registration of exchange after such Record Date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Company shall pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public and private debts.
The Company may deliver any such interest payment to the Paying Agent or to a Holder at the
Holder’s registered address.
3. Paying Agent and Registrar.
Initially, The Bank of New York Mellon Trust Company, N.A. (the “Trustee”) will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar or co-Registrar
without notice to the Holders.
4. Indenture.
The Company issued the Securities under an Indenture, dated as of December 23, 2010 (the
“Indenture”), between the Company and the Trustee. Capitalized terms herein are used as
defined in the Indenture unless otherwise defined herein. The terms of the Securities
B-4
include those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) (the “TIA”), as in effect on
the date of the Indenture until such time as the Indenture is qualified under the TIA, and
thereafter as in effect on the date on which the Indenture is qualified under the TIA.
Notwithstanding anything to the contrary herein, the Securities are governed by all such terms, and
Holders of Securities are referred to the Indenture and the TIA for a statement of them.
5. Optional Redemption.
The Securities will be redeemable, at the Company’s option, in whole at any time or in part
from time to time, on and after December 15, 2015 upon not less than 30 nor more than 60 days’
notice, at the following redemption prices (expressed as percentages of the principal amount
thereof) if redeemed during the twelve-month period commencing on December 15 of the applicable
year set forth below, plus, in each case, accrued and unpaid interest, if any, to the date of
redemption (subject to the right of holders of record on the relevant record date to receive
interest due on the relevant interest payment date):
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Year |
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Percentage |
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2015 |
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103.438 |
% |
2016 |
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102.292 |
% |
2017 |
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101.146 |
% |
2018 and thereafter |
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100.000 |
% |
At any time prior to December 15, 2015, the Securities may also be redeemed in whole or in
part, at the Company’s option, at a redemption price equal to 100% of the principal amount thereof
plus the Applicable Premium as of, and accrued but unpaid interest, if any, to, the date of
redemption (subject to the right of holders of record on the relevant record date to receive
interest due on the relevant interest payment date).
6. Optional Redemption upon Equity Offerings.
At any time, or from time to time, on or prior to December 15, 2013, the Company may, at its
option, use all or any portion of the net cash proceeds of one or more Equity Offerings (as defined
below) to redeem up to 35% of the aggregate principal amount of the Securities issued at a
redemption price equal to 106.875% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of redemption (subject to the right of holders of record on the
relevant record date to receive interest due on the relevant interest payment date);
provided that at least 65% of the aggregate principal amount of Securities issued remains
outstanding immediately after any such redemption. In order to effect the foregoing redemption
with the proceeds of any Equity Offering, the Company shall make such redemption not more than 180
days after the consummation of any such Equity Offering.
As used in the preceding paragraph, “Equity Offering” means any public or private sale
of the common stock of the Company, other than any public offering with respect
B-5
to the Company’s common stock registered on Form S-8 or other issuances upon exercise of
options by employees of the Company or any of its Restricted Subsidiaries.
7. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more than 60 days before the
Redemption Date to each Holder of Securities to be redeemed at such Holder’s registered address.
Securities in denominations of $2,000 may be redeemed only in whole. The Trustee may select for
redemption portions (equal to $1,000 or any integral multiple thereof) of the principal of
Securities that have denominations larger than $2,000.
If any Security is to be redeemed in part only, the notice of redemption that relates to such
Security shall state the portion of the principal amount thereof to be redeemed. A new Security in
a principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the Redemption Date, interest
will cease to accrue on Securities or portions thereof called for redemption.
8. Change of Control Offer.
Upon the occurrence of a Change of Control, the Company will be required to offer to purchase
all of the outstanding Securities at a purchase price equal to 101% of the principal amount thereof
plus accrued and unpaid interest, if any, to the date of repurchase.
9. Limitation on Disposition of Assets.
The Company is, subject to certain conditions, obligated to make an offer to purchase
Securities at 100% of their principal amount plus accrued and unpaid interest to the date of
repurchase with certain net cash proceeds of certain sales or other dispositions of assets in
accordance with the Indenture.
10. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in denominations of $2,000 and
integral multiples of $1,000. A Holder shall register the transfer of or exchange Securities in
accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer taxes or similar
governmental charges payable in connection therewith as permitted by the Indenture. The Registrar
need not register the transfer of or exchange any Securities or portions thereof selected for
redemption, except the unredeemed portion of any security being redeemed in part.
B-6
11. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of it for all purposes.
12. Unclaimed Funds.
Subject to any applicable escheat laws, if funds for the payment of principal or interest
remain unclaimed for two years, the Trustee and the Paying Agent will repay the funds to the
Company at its request. After that, all liability of the Trustee and such Paying Agent with
respect to such funds shall cease.
13. Legal Defeasance and Covenant Defeasance.
The Company may be discharged from its obligations under the Indenture and the Securities
except for certain provisions thereof, and may be discharged from its obligations to comply with
certain covenants contained in the Indenture and the Securities, in each case upon satisfaction of
certain conditions specified in the Indenture.
14. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may be amended or supplemented
with the written consent of the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding, and any existing Default or Event of Default or compliance with any
provision may be waived with the consent of the Holders of a majority in aggregate principal amount
of the Securities then outstanding. Without notice to or consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Securities to, among other things, cure any
ambiguity, defect or inconsistency, provide for uncertificated Securities in addition to or in
place of certificated Securities or comply with any requirements of the Commission in connection
with the qualification of the Indenture under the TIA, or make any other change that does not
materially adversely affect the rights of any Holder of a Security.
15. Restrictive Covenants.
The Indenture contains certain covenants that, among other things, limit the ability of the
Company and certain of its subsidiaries to make restricted payments, to incur indebtedness, to
create liens, to issue preferred or other capital stock of subsidiaries, to sell assets, to permit
restrictions on dividends and other payments by subsidiaries to the Company, to consolidate, merge
or sell all or substantially all of its assets, to engage in transactions with affiliates or to
engage in certain businesses. The limitations are subject to a number of important qualifications
and exceptions.
B-7
16. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of Securities then outstanding may declare all the Securities to be due
and payable immediately in the manner and with the effect provided in the Indenture. Holders of
Securities may not enforce the Indenture or the Securities except as provided in the Indenture.
The Trustee is not obligated to enforce the Indenture or the Securities unless it has received
indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein
provided, Holders of a majority in aggregate principal amount of the Securities then outstanding to
direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of
Securities notice of any continuing Default or Event of Default (except a Default in payment of
principal, premium or interest, including an accelerated payment) if it determines that withholding
notice is in their interest.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity, may become the owner
or pledgee of Securities and may otherwise deal with the Company, its Subsidiaries, any Guarantor
and their respective Affiliates as if it were not the Trustee.
18. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as such, of the Company shall
have any liability for any obligation of the Company under the Securities or the Indenture or for
any claim based on, in respect of or by reason of, such obligations or their creation. Each Holder
of a Security by accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
19. Authentication.
This Security shall not be valid until the Trustee or authenticating agent signs the
certificate of authentication on this Security.
20. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Security or an assignee, such
as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants
with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Securities as a convenience
to the Holders of the Securities. No representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on the other identification numbers
printed hereon.
B-8
The Company will furnish to any Holder of a Security upon written request and without charge a
copy of the Indenture. Requests may be made to: TENNECO INC., 000 Xxxxx Xxxxx Xxxxx, Xxxx Xxxxxx,
XX 00000, Attention: Chief Financial Officer.
B-9
ASSIGNMENT FORM
I or we assign and transfer this Security to
(Print or type name, address and zip code of assignee or transferee)
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint
agent to transfer this Security on the books of the Company.
The agent may substitute another to act for him.
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Dated:
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Signed: |
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(Sign exactly as name appears on the other
side of this Security) |
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Signature Guarantee: |
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Participant in a recognized Signature Guarantee Medallion Program
(or other signature
guarantor program reasonably acceptable to the Trustee) |
B-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to Section 4.12
or Section 4.21 of the Indenture, check the appropriate box:
Section 4.12 [ ] Section 4.21 [ ]
If you want to elect to have only part of this Security purchased by the Company pursuant to
Section 4.12 or Section 4.21 of the Indenture, state the amount: $_____________
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Date:
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Your Signature: |
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(Sign exactly as your name appears
on the other side of this Security) |
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Signature Guarantee: |
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Participant in a recognized Signature Guarantee Medallion Program
(or other signature guarantor program reasonably acceptable to the
Trustee) |
B-11
EXHIBIT C
FORM OF LEGEND FOR GLOBAL SECURITIES
Any Global Security authenticated and delivered hereunder shall bear a legend (which would be
in addition to any other legends required in the case of a Restricted Security) in substantially
the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE
OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
C-1
EXHIBIT D
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
The Bank of New York Mellon Trust Company, N.A.
0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
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Re: |
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67/8% Senior Notes due 2020, Series A, and
67/8% Senior Notes due 2020, Series B
(the “Securities”), of Tenneco Inc. |
This Certificate relates to $_______ principal amount of Securities held in the form of* ___ a
beneficial interest in a Global Security or* _______ Physical Securities by ______ (the
“Transferor”).
The Transferor:*
o has requested by written order that the Registrar deliver in exchange for its
beneficial interest in the Global Security held by the Depositary a Physical Security or Physical
Securities in definitive, registered form of authorized denominations and an aggregate number equal
to its beneficial interest in such Global Security (or the portion thereof indicated above); or
o has requested by written order that the Registrar exchange or register the transfer of
a Physical Security or Physical Securities.
o has requested by written order that the Registrar register the transfer of its
beneficial interest in the Global Security exempt under Rule 144A held by the Depositary to a
beneficial interest in the Global Security exempt under Regulation S held by the Depositary, or
vice versa.
In connection with such request and in respect of each such Security, the Transferor does
hereby certify that the Transferor is familiar with the Indenture relating to the above captioned
Securities and the restrictions on transfers thereof as provided in Section 2.16 of such Indenture,
and that the transfer of this Securities does not require registration under the Securities Act of
1933, as amended (the “Act”), because*:
D-1
o Such Security is being acquired for the Transferor’s own account, without transfer (in
satisfaction of Section 2.16(a)(II)(A) or Section 2.16(d)(i)(A) of the Indenture).
o Such Security is being transferred to a “qualified institutional buyer” (as defined in
Rule 144A under the Act), in reliance on Rule 144A.
o Such Security is being transferred to an institutional “accredited investor” (within
the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Act).
o Such Security is being transferred in reliance on Regulation S under the Act.
o Such Security is being transferred in reliance on Rule 144 under the Act.
o Such Security is being transferred in reliance on and in compliance with an exemption
from the registration requirements of the Act other than Rule 144A or Rule 144 or Regulation S
under the Act to a person other than an institutional “accredited investor.”
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[INSERT NAME OF TRANSFEROR]
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By: |
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[Authorized Signatory] |
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Date: _______________________
D-2
EXHIBIT E
Form of Certificate To Be
Delivered in Connection with
Transfers to Institutional Accredited Investors
_______________, ____
The Bank of New York Mellon Trust Company, N.A.
0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
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Re: |
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Tenneco Inc. (the
“Company”) Indenture (the
“Indenture”) relating to
6⅞% Senior Notes due 2020, Series A |
Ladies and Gentlemen:
In connection with our proposed purchase of 67/8% Senior Notes due 2020, Series A of Tenneco
Inc. (the “Company”), we confirm that:
1. We have received such information as we deem necessary in order to make our
investment decision.
2. We understand that any subsequent transfer of the Securities is subject to certain
restrictions and conditions set forth in the Indenture and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the Securities except in
compliance with, such restrictions and conditions and the Securities Act of 1933, as amended
(the “Securities Act”).
3. We understand that the offer and sale of the Securities have not been registered
under the Securities Act, and that the Securities may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons except as permitted in
the following sentence. We agree for the benefit of the issuer that this Security may not
be offered, sold, pledged or otherwise transferred prior to the expiration of the holding
period applicable thereto under Rule 144(k) under the Securities Act which is applicable to
this Security (the “Resale Restriction Termination Date”) other than (1) to the
issuer or its subsidiaries, (2) so long as this Security is eligible for resale pursuant to
Rule 144A under the Securities Act (“Rule 144A”), to a person who the seller
reasonably believes is a “Qualified Institutional Buyer” within the meaning of Rule 144A
purchasing for its own account or for the account of a Qualified Institutional Buyer, in
each case to whom notice is given that the resale, pledge or other
E-1
transfer is being made in reliance on Rule 144A (as indicated by the box checked by the
transferor on the certificate of transfer on the reverse of this Security if this Security
is not in book-entry form), (3) to a non-“U.S. person” in an “Offshore Transaction” (as such
terms are defined in Regulation S under the Securities Act) in accordance with Regulation S
under the Securities Act (as indicated by the box checked by the transferor on the
certificate of transfer on the reverse of this Security if this Security is not in
book-entry form), (4) pursuant to any other available exemption from the registration
requirements of the Securities Act, including the exemption provided by Rule 144 under the
Securities Act, if available, or (5) pursuant to an effective registration statement under
the Securities Act, subject in each of the foregoing cases to any requirement of law that
the disposition of its property or the property of such investor account or accounts be at
all times within its or their control, and subject to the right of the issuer or the Trustee
for the Securities prior to any such sale, pledge or other transfer pursuant to clause (4)
above to require the delivery of an opinion of counsel, certifications and/or other
information satisfactory to each of them. This legend will be removed upon request of the
holder on or after the Resale Restriction Termination Date.
4. We understand that, on any proposed resale of Securities, we will be required to
furnish to the Trustee and the Company, such certification, legal opinions and other
information as the Trustee and the Company may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions. We further understand that the
Securities purchased by us will bear a legend to the foregoing effect.
5. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act) and have such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and risks of our
investment in the Securities, and we and any accounts for which we are acting are each able
to bear the economic risk of our or their investment, as the case may be.
6. We are acquiring the Securities purchased by us for our account or for one or more
accounts (each of which is an institutional “accredited investor”) as to each of which we
exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered hereby.
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Very truly yours,
[Name of Transferee]
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By: |
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[Authorized Signatory] |
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E-2
EXHIBIT F
Form of Certificate To Be
Delivered in Connection
with Regulation S Transfers
_______________, ____
The Bank of New York Mellon Trust Company, N.A.
0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
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Re: |
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Tenneco Inc. (the “Company”) 67/8%
Senior Notes due 2020, Series A
(the “Securities”) |
Dear Sirs:
In connection with our proposed sale of $____________ aggregate principal amount of the
Securities, we confirm that such sale has been effected pursuant to and in accordance with
Regulation S under the Securities Act of 1933, as amended (the “Securities Act”), and,
accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the United States;
(2) either (a) at the time the buy offer was originated, the transferee was outside the
United States or we and any person acting on our behalf reasonably believed that the
transferee was outside the United States, or (b) the transaction was executed in, on or
through the facilities of a designated offshore securities market and neither we nor any
person acting on our behalf knows that the transaction has been pre-arranged with a buyer in
the United States;
(3) no directed selling efforts have been made in the United States in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions applicable to the
Securities.
F-1
You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby. Defined terms used
herein without definition have the respective meanings provided in Regulation S.
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Very truly yours,
[Name of Transferor]
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By: |
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[Authorized Signatory] |
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F-2
EXHIBIT G
[FORM OF SUBSIDIARY GUARANTEE]
Each undersigned Guarantor (as defined in the Indenture referred to in the Security upon which
this notation is endorsed and each referred to as the “Guarantor,” which term includes any
successor person under the Indenture) unconditionally guarantees on a senior basis as set forth in
the Indenture (such guarantee by the Guarantor being referred to herein as a “Subsidiary
Guarantee”) (i) the due and punctual payment of the principal of and interest on the
Securities, whether at maturity, by acceleration or otherwise, the due and punctual payment of
interest on the overdue principal and interest, if any, on the Securities, to the extent lawful,
and the due and punctual performance of all other obligations of the Company to the Holders or the
Trustee all in accordance with the terms set forth in Article Ten of the Indenture and (ii) in case
of any extension of time of payment or renewal of any Securities or any of such other obligations,
that the same will 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.
No stockholder, officer, director or incorporator, as such, past, present or future, of the
Guarantor shall have any liability under the Subsidiary Guarantee by reason of his or its status as
such stockholder, officer, director or incorporator.
The Subsidiary Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Securities upon which the Subsidiary Guarantee is noted shall
have been executed by the Trustee under the Indenture by the manual signature of one of its
authorized officers.
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[GUARANTOR]
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By: |
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Name: |
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Title: |
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By: |
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Name: |
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Title: |
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G-1