EXHIBIT 4.1
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XXXXX XXXXX XXXXXXX FINANCE, INC.
and
Bank One, N.A., as Trustee
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INDENTURE
Dated as of March 14, 2003
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$403,000,000 7-7/8 % Notes Due 2011
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1)...................................................... 7.10
(a)(2)...................................................... 7.10
(a)(3)...................................................... N.A.
(a)(4)...................................................... N.A.
(a)(5)...................................................... 7.10
(b)......................................................... 7.08; 7.10
(b)(1)...................................................... 7.10
(c)......................................................... N.A.
311(a)......................................................... 7.11
(b)......................................................... 7.11
(c)......................................................... N.A.
312(a)......................................................... 2.06
(b)......................................................... 12.03
(c)......................................................... 12.03
313(a)......................................................... 7.06
(b)......................................................... 7.08
(b)(1)...................................................... N.A.
(b)(2)...................................................... 7.06; 11.04
(c)......................................................... 7.06; 11.04
(d)......................................................... 7.06
314(a)......................................................... 4.06; 4.18; 12.04
(b)......................................................... 11.02
(c)(1)...................................................... 12.04
(c)(2)...................................................... 12.04
(c)(3)...................................................... N.A.
(d)......................................................... 11.04
(e)......................................................... 12.05
(f)......................................................... N.A.
315(a)......................................................... 7.01(b)
(b)......................................................... 7.05
(c)......................................................... 7.01(a)
(d)......................................................... 7.01(c)
(e)......................................................... 6.12
316(a) (last sentence)......................................... 2.10
(a)(1)(A)................................................... 6.05
(a)(1)(B)................................................... 6.04
(a)(2)...................................................... N.A.
(b)......................................................... 6.08
(c)......................................................... 8.04
317(a)(1)...................................................... 6.09
(a)(2)...................................................... 6.10
(b)......................................................... 2.05; 7.12
318(a)......................................................... 12.01
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N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture
TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.................................................................1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act..........................38
SECTION 1.03. Rules of Construction......................................................39
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Amount of Notes............................................................40
SECTION 2.02. Form and Dating............................................................40
SECTION 2.03. Execution and Authentication...............................................40
SECTION 2.04. Registrar and Paying Agent.................................................41
SECTION 2.05. Paying Agent To Hold Money in Trust........................................42
SECTION 2.06. Holder Lists...............................................................42
SECTION 2.07. Transfer and Exchange......................................................42
SECTION 2.08. Replacement Notes..........................................................43
SECTION 2.09. Outstanding Notes..........................................................43
SECTION 2.10. Treasury Notes.............................................................44
SECTION 2.11. Temporary Notes............................................................44
SECTION 2.12. Cancellation...............................................................44
SECTION 2.13. Defaulted Interest.........................................................45
SECTION 2.14. CUSIP Number...............................................................45
SECTION 2.15. Deposit of Moneys..........................................................45
SECTION 2.16. Book-Entry Provisions for Global Notes.....................................46
SECTION 2.17. Special Transfer Provisions................................................47
SECTION 2.18. Computation of Interest....................................................50
ARTICLE THREE
REDEMPTION
SECTION 3.01. Election To Redeem; Notices to Trustee.....................................50
SECTION 3.02. Selection by Trustee of Notes To Be Redeemed...............................50
SECTION 3.03. Notice of Redemption.......................................................51
SECTION 3.04. Effect of Notice of Redemption.............................................52
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SECTION 3.05. Deposit of Redemption Price................................................52
SECTION 3.06. Notes Redeemed in Part.....................................................53
SECTION 3.07. Special Mandatory Redemption; Notices to Trustee and Securities
Intermediary...............................................................53
SECTION 3.08. Notice of Special Mandatory Redemption to Holders..........................53
SECTION 3.09. Effect of Notice of Special Mandatory Redemption...........................54
SECTION 3.10. Deposit of Special Mandatory Redemption Price..............................54
SECTION 3.11. Other Mandatory Redemption.................................................54
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes...........................................................54
SECTION 4.02. Maintenance of Office or Agency............................................55
SECTION 4.03. Legal Existence............................................................55
SECTION 4.04. Maintenance of Properties; Insurance; Compliance with Law..................56
SECTION 4.05. Waiver of Stay, Extension or Usury Laws....................................56
SECTION 4.06. Compliance Certificate.....................................................57
SECTION 4.07. Payment of Taxes and Other Claims..........................................57
SECTION 4.08. Repurchase at the Option of Holders upon Change of Control.................58
SECTION 4.09. Limitation on Debt.........................................................60
SECTION 4.10. Limitation on Restricted Payments..........................................64
SECTION 4.11. Limitation on Liens........................................................69
SECTION 4.12. Limitation on Asset Sales..................................................69
SECTION 4.13. Limitation on Restrictions on Distributions from Restricted Subsidiaries...73
SECTION 4.14. Limitation on Transactions with Affiliates.................................76
SECTION 4.15. Designation of Restricted and Unrestricted Subsidiaries....................78
SECTION 4.16. Creation of Subsidiaries; Additional Subsidiary Guarantees.................79
SECTION 4.17. Limitation of Company's Business...........................................80
SECTION 4.18. Reports to Holders.........................................................80
SECTION 4.19. Covenant Suspension........................................................81
SECTION 4.20. Additional Amounts.........................................................82
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ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Property.................................83
SECTION 5.02. Successor Person Substituted...............................................86
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default..........................................................86
SECTION 6.02. Acceleration of Maturity; Rescission.......................................88
SECTION 6.03. Other Remedies.............................................................90
SECTION 6.04. Waiver of Past Defaults and Events of Default..............................90
SECTION 6.05. Control by Majority........................................................91
SECTION 6.06. Limitation on Suits........................................................91
SECTION 6.07. No Personal Liability of Directors, Officers, Employees and Stockholders...92
SECTION 6.08. Rights of Holders To Receive Payment.......................................92
SECTION 6.09. Collection Suit by Trustee.................................................92
SECTION 6.10. Trustee May File Proofs of Claim...........................................92
SECTION 6.11. Priorities.................................................................93
SECTION 6.12. Undertaking for Costs......................................................93
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee..........................................................94
SECTION 7.02. Rights of Trustee..........................................................95
SECTION 7.03. Individual Rights of Trustee...............................................97
SECTION 7.04. Trustee's Disclaimer.......................................................97
SECTION 7.05. Notice of Defaults.........................................................97
SECTION 7.06. Reports by Trustee to Holders..............................................97
SECTION 7.07. Compensation and Indemnity.................................................98
SECTION 7.08. Replacement of Trustee.....................................................99
SECTION 7.09. Successor Trustee by Consolidation, Merger, etc...........................100
SECTION 7.10. Eligibility; Disqualification.............................................100
SECTION 7.11. Preferential Collection of Claims Against Company.........................101
SECTION 7.12. Paying Agents.............................................................101
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ARTICLE EIGHT
MODIFICATION AND WAIVER
SECTION 8.01. Without Consent of Holders................................................101
SECTION 8.02. With Consent of Holders...................................................102
SECTION 8.03. Compliance with Trust Indenture Act.......................................104
SECTION 8.04. Revocation and Effect of Consents.........................................104
SECTION 8.05. Notation on or Exchange of Notes..........................................104
SECTION 8.06. Trustee To Sign Amendments, etc...........................................105
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. Discharge of Liability on Notes; Defeasance...............................105
SECTION 9.02. Conditions to Defeasance..................................................107
SECTION 9.03. Deposited Money and Government Obligations To Be Held in Trust; Other
Miscellaneous Provisions...............................................108
SECTION 9.04. Reinstatement.............................................................109
SECTION 9.05. Moneys Held by Paying Agent...............................................109
SECTION 9.06. Moneys Held by Trustee....................................................109
ARTICLE TEN
GUARANTEE OF SECURITIES
SECTION 10.01. Guarantee.................................................................110
SECTION 10.02. Execution and Delivery of Guarantee.......................................111
SECTION 10.03. Release of Guarantors.....................................................112
SECTION 10.04. Waiver of Subrogation.....................................................112
SECTION 10.05. Notice to Trustee.........................................................113
SECTION 10.06. Subordination of Subordinated Subsidiary Guarantees.......................114
ARTICLE ELEVEN
SECURITY DOCUMENTS
SECTION 11.01. Security Documents........................................................116
SECTION 11.02. Recording and Opinions....................................................117
SECTION 11.03. Release of Collateral.....................................................117
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SECTION 11.04. Certificates of the Company...............................................117
SECTION 11.05. Certificates of the Trustee...............................................118
SECTION 11.06. Authorization of Actions To Be Taken by the Trustee Under the Security
Documents..............................................................118
SECTION 11.07. Authorization of Receipt of Funds by the Trustee Under the Security
Documents..............................................................118
SECTION 11.08. Termination of Security Interest..........................................119
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls..............................................119
SECTION 12.02. Notices...................................................................119
SECTION 12.03. Communications by Holders with Other Holders..............................121
SECTION 12.04. Certificate and Opinion as to Conditions Precedent........................121
SECTION 12.05. Statements Required in Certificate and Opinion............................121
SECTION 12.06. Rules by Trustee and Agents...............................................122
SECTION 12.07. Legal Holidays............................................................122
SECTION 12.08. Governing Law.............................................................122
SECTION 12.09. No Adverse Interpretation of Other Agreements.............................122
SECTION 12.10. Successors................................................................122
SECTION 12.11. Multiple Counterparts.....................................................122
SECTION 12.12. Consent To Jurisdiction And Service Of Process............................123
SECTION 12.13. Conversion of Currency....................................................123
SECTION 12.14. Currency Equivalent.......................................................125
SECTION 12.15. Table of Contents, Headings, etc..........................................125
SECTION 12.16. Separability..............................................................125
EXHIBITS
Exhibit A. Form of Note..............................................................A-1
Exhibit B. Form of Legend for Rule 144A Securities and Other Securities That Are
Restricted Securities..................................................B-1
Exhibit C. Form of Legend for Regulation S Note......................................C-1
Exhibit D. Form of Legend for Global Note............................................D-1
Exhibit E. Form of Certificate To Be Delivered in Connection with Transfers
Pursuant to Regulation S...............................................E-1
Exhibit F. Form of Guarantee.........................................................F-1
Exhibit G. Form of Certificate from Acquiring Institutional Accredited Investor......G-1
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INDENTURE, dated as of March 14, 2003, among XXXXX NORTH
AMERICA FINANCE INC., a Delaware corporation, as issuer (the "Company"), the
Guarantors named herein and Bank One, N.A., a national banking association, as
trustee (the "Trustee").
On and after the Release Date, the Notes will be Guaranteed by
the Guarantors (as defined herein).
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Notes.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Debt" means Debt of a Person existing at the time
such Person becomes a Restricted Subsidiary or merges or consolidates with or
into the Company or a Guarantor or Restricted Subsidiary, or assumed in
connection with the acquisition of assets from such Person and, in any case,
such Debt was not Incurred in connection with, or in contemplation of, such
Person becoming a Restricted Subsidiary or such merger, consolidation or
acquisition. Acquired Debt shall be deemed to be Incurred on the date the
acquired Person becomes a Restricted Subsidiary or the date of such merger,
consolidation or acquisition and all Debt of Xxxxxxx and its Subsidiaries
outstanding on the date of the Release shall be Acquired Debt.
"Acquisition" means the consummation, on the date of the
Release, of the acquisition by Xxxxx Corporation Limited, a Canadian
corporation, or one of its subsidiaries, of Xxxxxxx Computer Services, Inc., a
Delaware corporation, in accordance with the terms of the Acquisition Agreement
and the transactions related thereto.
"Acquisition Agreement" means the Agreement and Plan of Merger
among Xxxxx, X-X Acquisition, Inc. and Xxxxxxx Computer Services, Inc., dated as
of January 16, 2003, as it may be amended in accordance with the terms thereof.
"Additional Amounts" has the meaning set forth in Section
4.20.
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"Additional Assets" means:
(a) any Property (other than cash, Temporary Cash Investments
and securities) to be owned by a Guarantor or any Restricted Subsidiary
and used in the business of a Guarantor or a Restricted Subsidiary in a
Related Business; or
(b) Capital Stock of a Person that is or becomes a Restricted
Subsidiary upon or as a result of the acquisition of such Capital Stock
by the Company, a Guarantor or another Restricted Subsidiary from any
Person other than the Company or an Affiliate of the Company; provided,
however, that, in the case of this clause (b), such Restricted
Subsidiary is primarily engaged in a Related Business.
"Additional Notes" has the meaning set forth in Section 2.01.
"Affiliate" of any specified Person means:
(a) any Person who is a director or officer of:
(1) such specified Person,
(2) any Subsidiary of such specified Person, or
(3) any Person described in clause (b) below.
(b) any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with
such specified Person.
For the purposes of this definition, "control", when used with
respect to any Person, means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. For purposes of
Sections 4.12 and 4.14 and the definition of "Additional Assets" only,
"Affiliate" shall also mean any beneficial owner of shares representing 10% or
more of the total voting power of the Voting Stock (on a fully diluted basis) of
the Company, Xxxxx XX or either Parent or Xxxxxxx and any Person who would be an
Affiliate of any such beneficial owner pursuant to the first sentence hereof.
Notwithstanding the foregoing, no Person (other than the Company, a Guarantor or
a Restricted Subsidiary) in whom a Securitization Entity makes an Investment in
connection with a Qualified Securitization Transaction shall be deemed an
Affiliate of the Company, a Guarantor or any Restricted Subsidiary solely by
reason of such Investment.
"Affiliate Transaction" has the meaning set forth in Section
4.14.
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"Agent" means any Registrar, Paying Agent, or agent for
service or notices and demands.
"Agent Members" has the meaning set forth in Section 2.16.
"Allocable Excess Proceeds" has the meaning set forth in
Section 4.12(e).
"Alternate Offer" has the meaning set forth in Section
4.08(e).
"amend" means amend, modify, supplement, restate or amend and
restate, including successively; and "amending" and "amended" have correlative
meanings.
"Asset Sale" means any sale, lease, transfer, issuance or
other disposition (or series of related sales, leases, transfers, issuances or
dispositions) by the Company, a Guarantor or any Restricted Subsidiary,
including any disposition by means of a merger, consolidation or similar
transaction (each referred to for the purposes of this definition as a
"disposition"), of
(a) any shares of Capital Stock of a Restricted Subsidiary
(other than directors' qualifying shares or shares required by
applicable law to be held by a Person other than the Company, a
Guarantor or a Restricted Subsidiary),
(b) all or substantially all of the properties and assets of
any division or line of business of the Company, a Guarantor or any
Restricted Subsidiary, or
(c) any other assets of the Company, a Guarantor or any
Restricted Subsidiary outside of the ordinary course of business of the
Company, such Guarantor or Restricted Subsidiary;
other than, in the case of clause (a), (b) or (c) above,
(1) any disposition by the Company, a Guarantor or a
Restricted Subsidiary to the Company, a Guarantor, a Restricted
Subsidiary or any Person (if after giving effect to such transfer such
other Person becomes a Restricted Subsidiary),
(2) any disposition that constitutes a Permitted Investment or
Restricted Payment permitted by Section 4.10,
(3) any disposition effected in compliance with Section 5.01,
(4) any sale or other disposition of cash or Temporary Cash
Investments,
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(5) any disposition of obsolete, worn out or permanently
retired equipment or facilities or other property that is no longer
used or useful in the ordinary course of the business of the Company, a
Guarantor or any Restricted Subsidiary,
(6) any disposition of Receivables and Related Assets in a
Qualified Securitization Transaction for the Fair Market Value thereof,
including cash or Temporary Cash Investments in an amount at least
equal to 75% of the Fair Market Value thereof,
(7) for purposes of Section 4.12, any disposition the net
proceeds of which to the Company, a Guarantor and the Restricted
Subsidiaries do not exceed $15 million in any transaction or series of
related transactions,
(8) the licensing or sublicensing of intellectual property or
other general intangibles and licenses, leases or subleases of other
property in the ordinary course of business which do not materially
interfere with the business of the Company, the Guarantors and the
Restricted Subsidiaries,
(9) any release of intangible claims or rights in connection
with the loss or settlement of a bona fide lawsuit, dispute or other
controversy,
(10) the surrender or waiver of contract rights or the
settlement, release or surrender of contract, tort or other claims of
any kind, and
(11) the disposition of Peak Technologies Inc. and its
subsidiaries for consideration at least equal to its Fair Market Value
and that satisfies clause (b) of the first paragraph of Section 4.12.
"Average Life" means, as of any date of determination, with
respect to any Debt or Preferred Stock, the quotient obtained by dividing:
(a) the sum of the products of (1) the number of years
(rounded to the nearest one-twelfth of one year) from the date of
determination to the dates of each successive scheduled principal
payment of such Debt or redemption or similar payment with respect to
such Preferred Stock multiplied by (2) the amount of such payment by
(b) the sum of all such payments.
"Base Currency" has the meaning set forth in Section 12.13
hereof.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar U.S. Federal or state law, the Bankruptcy and Insolvency Act (Canada),
the Companies' Creditors Arrangement Act (Canada) or any other Canadian federal
or provincial law or law of any other
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jurisdiction relating to bankruptcy, insolvency, winding-up, liquidation,
reorganization or relief of debtors.
"Board of Directors" means, with respect to any Person, the
board of directors, or any equivalent management entity, of such Person or any
committee thereof duly authorized to act on behalf of such board.
"Board Resolution" means, with respect to any Person, a copy
of a resolution of such Person's Board of Directors, certified by the Secretary
or an Assistant Secretary, or an equivalent officer, 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.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banking institutions in
New York City are
authorized or required by law to close.
"Canadian Guarantor" has the meaning set forth in Section
4.20.
"Capital Lease Obligations" means any obligation under a lease
that is required to be capitalized for financial reporting purposes in
accordance with GAAP; and the amount of Debt represented by such obligation
shall be the capitalized amount of such obligation determined in accordance with
GAAP; and the Stated Maturity thereof shall be the date of the last payment of
rent or any other amount due under such lease prior to the first date upon which
such lease may be terminated by the lessee without payment of a penalty. For
purposes of Section 4.11, a Capital Lease Obligation shall be deemed secured by
a Lien on the Property being leased.
"Capital Stock" means, with respect to any Person, any shares
or other equivalents (however designated) of any class of corporate stock or
partnership interests or any other participations, rights, warrants, options or
other interests in the nature of an equity interest in such Person, including
Preferred Stock, but excluding any debt security convertible or exchangeable
into such equity interest prior to conversion or exchange.
"Capital Stock Sale Proceeds" means the aggregate cash
proceeds received by the Company or a Guarantor from the issuance or sale (other
than to the Company, a Guarantor or a Restricted Subsidiary or to an employee
stock ownership plan or trust established by the Company, a Guarantor or a
Restricted Subsidiary for the benefit of its employees and except to the extent
that any purchase made pursuant to such issuance or sale is financed by the
Company, Xxxxx, Xxxxx XX, Xxxxxxx or any Restricted Subsidiary) by it of its
Capital Stock (including upon the exercise of options, warrants or rights)
(other than Disqualified Stock) or warrants, options or rights to purchase its
Capital Stock (other than Disqualified Stock) after the Issue Date (other than
to finance part of the purchase price of the Acquisition), net of
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attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees actually
Incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Change of Control" means the occurrence of any of the
following events:
(1) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of 50% or more of the total voting power of the Voting
Stock of Xxxxx (for the purpose of this clause (1), a Person shall be
deemed to beneficially own the Voting Stock of a corporation that is
beneficially owned (as defined above) by another corporation (a "parent
corporation") if such Person beneficially owns (as defined above) at
least 50% of the aggregate voting power of all classes of Voting Stock
of such parent corporation);
(2) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors
of Xxxxx (together with any new directors whose election by such Board
of Directors or whose nomination for election by the applicable
shareholders was approved or ratified by a vote of more than 50% of the
Board of Directors of Xxxxx 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 or ratified) cease
for any reason to constitute a majority of such Board of Directors then
in office;
(3) the adoption of a plan relating to the liquidation or
dissolution of either Xxxxx or the Company;
(4) the merger or consolidation of Xxxxx with or into another
Person or the merger of another Person with or into Xxxxx, or the sale
of all or substantially all the assets of Xxxxx and its Restricted
Subsidiaries, taken as a whole, to another Person, and, in the case of
any such merger or consolidation, the securities of the entity to be
merged that are outstanding immediately prior to such transaction and
that represent 100% of the aggregate voting power of the Voting Stock
of such entity, are changed into or exchanged for cash, securities or
Property, unless pursuant to such transaction such securities are
changed into or exchanged for, in addition to any other consideration,
securities of the surviving corporation that represent immediately
after such transaction at least a majority of the aggregate voting
power of the Voting Stock of the surviving corporation; or
(5) the Company is no longer a direct or indirect wholly owned
Subsidiary of Xxxxx.
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For purposes of this definition of "Change of Control",
references to Xxxxx mean Xxxxx and its successors or assigns.
"Change of Control Offer" has the meaning set forth in Section
4.08.
"Change of Control Payment Date" has the meaning set forth in
Section 4.08.
"Change of Control Purchase Price" has the meaning set forth
in Section 4.08.
"Clearstream" has the meaning set forth in Section 2.16.
"Collateral" has the meaning set forth in Section 6(a) of the
Escrow and Pledge Agreement.
"Combined Consolidated Net Income" means the aggregate of the
Consolidated Net Income of the Company, the Guarantors and the Restricted
Subsidiaries, without duplication.
"Combined Consolidated Net Tangible Assets" means the
aggregate of the Consolidated Net Tangible Assets of the Company, the Guarantors
and the Restricted Subsidiaries, without duplication.
"Commission" means the U.S. Securities and Exchange
Commission.
"Commodity Price Protection Agreement" means, in respect of a
Person, any forward contract, commodity swap agreement, commodity option
agreement or other similar agreement or arrangement designed to protect such
Person against fluctuations in commodity prices.
"Company" means the party named as such in the first paragraph
of this Indenture, until a successor replaces such party pursuant to Article
Five and thereafter means the successor.
"Consolidated Current Liabilities" means, for any Person, as
of any date of determination, the aggregate amount of liabilities of such Person
and its Restricted Subsidiaries which may properly be classified as current
liabilities (including taxes accrued as estimated), as of such date on a
consolidated basis, after eliminating:
(1) all intercompany items between such Person and any
Restricted Subsidiary and
(2) all current maturities of long-term Debt,
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all as determined in accordance with GAAP consistently applied.
"Consolidated EBITDA" means, with respect to any Person, for
any period, the Consolidated Net Income of such Person for such period, plus in
each case, without duplication:
(a) provision for taxes based on income or profits of such
Person and its Restricted Subsidiaries for such period to the extent
that such provision for taxes was included in computing such
Consolidated Net Income;
(b) the Fixed Charges of such Person and its Restricted
Subsidiaries for such period, to the extent that such Fixed Charges
were deducted in computing such Consolidated Net Income;
(c) depreciation and amortization (including amortization of
goodwill and other intangibles but excluding amortization of prepaid
cash expenses that were paid in a prior period) of such Person and its
Restricted Subsidiaries for such period to the extent that such
depreciation and amortization were deducted in computing such
Consolidated Net Income;
(d) expenses or charges relating to the refinancing or
repayment of debt, including the write-off of deferred financing costs
and any premiums relating to such refinancing or repayment of such
Person, to the extent that such charges were deducted in computing such
Consolidated Net Income;
(e) charges relating to the purchase or other acquisition of
Capital Stock to the extent that such charges were deducted in
computing such Consolidated Net Income; and
(f) any non-cash charges reducing Consolidated Net Income for
such period (excluding any such non-cash charge to the extent that it
represents an accrual of or a reserve for cash expenses in any future
period or amortization of a prepaid cash expense that was paid in a
prior period); minus
(g) any non-cash items increasing Consolidated Net Income for
such period (without duplication, excluding any reversal of a reserve
for cash expense, if the establishment of such reserve had previously
decreased Consolidated Net Income).
"Consolidated Interest Expense" means, with respect to any
Person for any period, the sum of, without duplication:
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(1) the aggregate of the net interest expense of such Person
and its 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 Rate Agreements; (c) all capitalized interest; and (d)
the interest portion of any deferred payment obligation; and
(2) the interest component of Capital Lease Obligations paid,
accrued and/or scheduled to be paid or accrued by such Person and its
Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, for any Person for any
period, the consolidated net income (loss) of such Person and its Restricted
Subsidiaries for such period on a consolidated basis prior to any adjustment to
net income for any preferred stock (other than Disqualified Stock) as determined
in accordance with GAAP; provided, however, that there shall not be included in
such Consolidated Net Income:
(a) the net income of any Person (the "other Person") in which
the Person in question or any of its Restricted Subsidiaries has less
than a 100% interest (which interest does not cause the net income of
such other Person to be consolidated into the net income of the Person
in question in accordance with GAAP) except for the amount of dividends
or distributions paid to the Person in question or to the Subsidiary;
(b) any net income of any Restricted Subsidiary of the Person
in question that is subject to any restriction or limitation on the
payment of dividends or the making of other distributions (other than,
if applicable, pursuant to the Notes or under this Indenture) to the
extent of such restriction or limitation;
(c) any net gain or loss realized upon the sale or other
disposition of any Property of such Person or any of its consolidated
Subsidiaries (including pursuant to any sale and leaseback transaction)
that is not sold or otherwise disposed of in the ordinary course of
business;
(d) any net after-tax extraordinary gain or loss;
(e) the cumulative effect of a change in accounting
principles;
(f) any non-cash compensation expense realized for grants of
stock appreciation or similar rights, stock options, Capital Stock or
other rights to officers, directors and employees of such Person or a
Subsidiary of such Person, provided that such rights (if redeemable),
options or other rights can be redeemed at the option of the holder
only for Capital Stock of such Person (other than Disqualified Stock)
or Capital Stock of a direct or indirect parent of such Person;
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(g) to the extent non-cash, any unusual, non-operating or
non-recurring gain or loss;
(h) interest expense related to the Notes and the Credit
Agreement prior to the Release to the extent in excess of any interest
income earned on the Escrowed Property or the funds held pursuant to
the Credit Facility Escrow Arrangements; and
(i) expenses or charges (whether cash or non-cash) related to
the Acquisition and any restructuring related thereto, including any
refunding or refinancing expenses related to Debt repaid or refinanced.
Notwithstanding the foregoing, to avoid duplication, for
purposes of Section 4.10 only, there shall be excluded from Consolidated Net
Income any dividends, repayments of loans or advances or other transfers of
assets from Unrestricted Subsidiaries to the Company, a Guarantor or a
Restricted Subsidiary to the extent such dividends, repayments or transfers
increase the amount of Restricted Payments permitted under Section 4.10 pursuant
to clause (b)(3)(iv) thereof.
"Consolidated Net Tangible Assets" means, for any Person as of
any date of determination, the total amount of assets (less accumulated
depreciation and amortization, allowances for doubtful receivables and other
applicable reserves) which would appear on a consolidated balance sheet of such
Person and the Restricted Subsidiaries, as of such date determined on a
consolidated basis in accordance with GAAP, and after giving effect to purchase
accounting and after deducting therefrom Consolidated Current Liabilities and,
to the extent not otherwise included, the amounts of:
(1) minority interests in consolidated Subsidiaries held by
Persons other than the Company, a Guarantor or a Restricted Subsidiary;
(2) excess of cost over fair value of assets of businesses
acquired, as determined in good faith by the Board of Directors of such
Person and the Board of Directors of Xxxxx;
(3) unamortized debt discount and expenses and other
unamortized deferred charges, goodwill, patents, trademarks, service
marks, trade names, copyrights, licenses, organization or developmental
expenses and other intangible items;
(4) cash set apart and held in a sinking or other analogous
fund established for the purpose of redemption or other retirement of
Capital Stock to the extent such obligation is not reflected in
Consolidated Current Liabilities; and
(5) investments in and assets of Unrestricted Subsidiaries.
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"Corporate Trust Office" means the principal office of the
Trustee at which at any time this Indenture shall be administered, which office
at the date hereof is located at 1 Bank Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Trust Administration, or such other
address as the Trustee may designate from time to time by notice to the Holders
and the Company, or the principal corporate trust office of any successor
Trustee (or such other address as such successor Trustee may designate from time
to time by notice to the Holders and the Company).
"Covenant Defeasance" has the meaning set forth in Section
9.01.
"Credit Agreement" means the Credit Agreement, dated as of the
Issue Date, among Xxxxx, Xxxxx Holdings, the lenders party thereto in their
capacities as lenders thereunder, Citicorp North America, Inc., as
administrative agent, and Deutsche Bank Securities Inc., as syndication agent,
together with the related documents 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 (including to increase the amount of available borrowings
thereunder or to add Restricted Subsidiaries as additional borrowers or
guarantors thereunder) from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including
increasing the amount of available borrowings thereunder or adding Restricted
Subsidiaries as additional borrowers or guarantors thereunder) all or any
portion of the Debt under such agreement or any successor or replacement
agreement and whether by the same or any other agent, lender or group of
lenders.
"Credit Facility" means the Credit Agreement and one or more
debt or commercial paper facilities with banks or other institutional lenders
providing for revolving credit loans, term loans, receivables or inventory
financing (including through the sale of receivables or inventory to such
lenders or to special purpose, bankruptcy remote entities formed to borrow from
such lenders against such receivables or inventory) or trade letters of credit,
or other forms of guarantees or assurances that one or more times refinance,
replace, supplement, modify or amend such credit facility (including increasing
the amount of available borrowings thereunder or adding obligors as additional
borrowers or guarantors thereunder) or all or any portion of the Debt under such
agreement or any successor or replacement agreement and whether by the same or
any other agent, lender or group of lenders.
"Credit Facility Escrow Arrangements" means the escrow account
and related agreements pursuant to which the proceeds of certain borrowings
under the Credit Agreement made by the Company or an Affiliate of the Company
prior to the Release will be placed into escrow until the closing under the
Acquisition Agreement.
"Currency Exchange Protection Agreement" means, in respect of
a Person, any foreign exchange contract, currency swap agreement, futures
contract, currency option, synthetic
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cap or other similar agreement or arrangement designed to protect such Person
against fluctuations in currency exchange rates.
"Custodian" means any receiver, interim receiver, receiver and
manager, trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
"Deadline" means August 31, 2003, or such earlier date as
Xxxxx determines that it will not pursue the consummation of the Acquisition.
"Debt" means, with respect to any Person on any date of
determination (without duplication):
(a) the principal of and premium (if any, but only in the
event such premium has become due) in respect of:
(1) debt of such Person for borrowed money, and
(2) debt evidenced by notes, debentures, bonds or
other similar instruments for the payment of which such Person
is responsible or liable;
(b) all Capital Lease Obligations of such Person;
(c) all obligations of such Person issued or assumed as the
deferred purchase price of Property, all conditional sale obligations
of such Person and all obligations of such Person under any title
retention agreement (but excluding trade accounts payable for goods and
services arising in the ordinary course of business);
(d) all obligations of such Person for the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar
credit transaction (other than obligations with respect to letters of
credit, performance bonds or surety bonds securing obligations (other
than obligations described in (a) through (c) above) provided in the
ordinary course of business of such Person to the extent such letters
of credit and bonds are not drawn upon or, if and to the extent drawn
upon, such drawing is reimbursed no later than the 30th Business Day
following receipt by such Person of a demand for reimbursement
following payment on the letter of credit or bond);
(e) the amount of all obligations of such Person with respect
to the Repayment of any Disqualified Stock or, with respect to any
Subsidiary of such Person, that is not a Guarantor, any Preferred Stock
(measured, in each case, at the greatest of its voluntary or
involuntary maximum fixed repurchase price or liquidation value on the
date of determination but excluding, in each case, any accrued
dividends for any current period not yet payable);
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(f) all obligations of other Persons of the type referred to
in clauses (a) through (e) above, and all accrued dividends of other
Persons currently payable, the payment of which, in either case, such
Person is responsible or liable, directly or indirectly, as obligor,
guarantor or otherwise, including by means of any Guarantee;
(g) all obligations of the type referred to in clauses (a)
through (f) above of other Persons, the payment of which is secured by
any Lien on any Property of such Person (whether or not such obligation
is assumed by such Person), the amount of such obligation being deemed
to be the lesser of the Fair Market Value of such Property or the
amount of the obligation so secured; and
(h) to the extent not otherwise included in this definition,
Hedging Obligations of such Person and all obligations under Interest
Rate Agreements.
The amount of Debt of any Person at any date shall be the
amount necessary to extinguish in full as of such date the outstanding balance
at such date of all unconditional obligations as described above including,
without limitation, all interest that has been capitalized, and without giving
effect to any call premiums in respect thereof. The amount of Debt represented
by a Hedging Obligation shall be equal to:
(1) zero if such Hedging Obligation has been Incurred pursuant
to Section 4.09(c)(5), (6) or (7) or
(2) the marked-to-market value of such Hedging Obligation to
the counterparty thereof if not Incurred pursuant to such clauses.
For purposes of this definition, the maximum fixed repurchase
price of any Preferred Stock that does not have a fixed redemption, repayment or
repurchase price will be calculated in accordance with the terms of such
Preferred Stock as if such Preferred Stock were purchased on any date on which
Debt will be required to be determined pursuant to this Indenture at its Fair
Market Value if such price is based upon, or measured by, the fair market value
of such Preferred Stock determined in good faith by the Board of Directors of
Xxxxx; provided, however, that if such Preferred Stock is not then permitted in
accordance with the terms of such Preferred Stock to be redeemed, repaid or
repurchased, the redemption, repayment or repurchase price shall be the book
value of such Preferred Stock as reflected in the most recent financial
statements of such Person.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Depository" means, with respect to the Notes issued in the
form of one or more Global Notes, The Depository Trust Company or another Person
designated as Depository
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by the Company, which Person must be a clearing agency registered under the
Exchange Act.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock that by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable, in either case at the option of
the holder thereof) or upon the happening of an event:
(a) matures or is mandatorily redeemable pursuant to a sinking
fund obligation or otherwise,
(b) is or may become redeemable or repurchaseable at the
option of the holder thereof, in whole or in part, or
(c) is convertible or exchangeable at the option of the holder
thereof for Debt or Disqualified Stock,
on or prior to, in the case of clause (a), (b) or (c), the 91st day after the
Stated Maturity of the Notes; provided that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders the
right to require the issuer thereof to repurchase or redeem such Capital Stock
upon the occurrence of a Change of Control occurring prior to the 91st day after
the Stated Maturity of the Notes shall not constitute Disqualified Stock if the
change of control provisions applicable to such Disqualified Stock are no more
favorable to the holders of such Disqualified Stock than the provisions of this
Indenture with respect to a Change of Control and such Disqualified Stock
specifically provides that the issuer thereof will not repurchase or redeem any
such Disqualified Stock pursuant to such provisions prior to the Company's
completing a Change of Control Offer.
"Escrow Agent" has the meaning set forth in the Escrow and
Pledge Agreement.
"Escrow and Pledge Agreement" means the escrow and pledge
agreement dated the Issue Date among the Securities Intermediary, the Trustee
and the Company relating to the Notes.
"Escrowed Property" means the funds to be held in escrow
pursuant to the Escrow and Pledge Agreement.
"Euroclear" has the meaning set forth in Section 2.16.
"Events of Default" has the meaning set forth in Section 6.01.
"Excess Proceeds" has the meaning set forth in Section 4.12.
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"Exchange Act" means the U.S. Securities Exchange Act of 1934,
as amended.
"Excluded Holder" has the meaning set forth in Section 4.20.
"Existing Xxxxx Credit Agreement" means the $400,000,000
Senior Secured Credit Agreement, dated as of August 2, 2002, among Xxxxx North
America, Inc., the Guarantors named therein, the several lenders from time to
time party thereto and Citicorp USA, Inc., as administrative agent for the
Lenders, including any amendments prior to the Release.
"Existing Xxxxxxx Credit Agreement" means the $500,000,000
Credit Agreement, dated as of October 31, 1997, among Xxxxxxx Computer Services,
Inc., Bank of America National Trust and Savings Association, as Administrative
Agent, and the other financial institutions party thereto, including any
amendments prior to the Release.
"Fair Market Value" means, with respect to any Property, the
price that could be negotiated in an arm's-length free market transaction, for
cash, between a willing seller and a willing buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Fair Market Value
shall be determined, except as otherwise provided,
(a) if such Property has a Fair Market Value equal to or less
than $10 million, by any Officer of the Company, or
(b) if such Property has a Fair Market Value in excess of $10
million, by a majority of the Board of Directors of Xxxxx and evidenced
by a Board Resolution.
"First Currency" has the meaning set forth in Section 12.14
hereof.
"Fixed Charge Coverage Ratio" means, with respect to any
Person for any period, the ratio of the Pro Forma Consolidated EBITDA of such
Person for such period to the Fixed Charges of such Person for such period. For
purposes of calculating the Company's Fixed Charge Coverage Ratio, the
calculation shall reflect the Fixed Charge Coverage Ratio of the Company, the
Guarantors and the Restricted Subsidiaries collectively (without duplication).
"Fixed Charges" means, with respect to any Person for any
period, the sum, without duplication, of:
(a) the Pro Forma Consolidated Interest Expense of such Person
and its Restricted Subsidiaries for such period whether paid or
accrued, determined in accordance with GAAP;
(b) all commissions, discounts and other fees and charges
incurred in respect of letters of credit or bankers' acceptance
financings, determined in accordance
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with GAAP, and net payments or receipts (if any) pursuant to Hedging
Obligations to the extent such Hedging Obligations related to Debt that
is not itself a Hedging Obligation;
(c) any interest expense on Debt of any Person that is
Guaranteed by such Person or one of its Restricted Subsidiaries or
secured by a Lien on assets of such Person or one of its Restricted
Subsidiaries (whether or not such Guarantee or Lien is called upon);
(d) amortization or write-off of Debt discount in connection
with any Debt of such Person and any Restricted Subsidiary on a
consolidated basis in accordance with GAAP other than amortization of
deferred financing costs incurred on or prior to the Release; and
(e) the product of (a) all dividend payments (other than
payments to the referent Person or any of its Restricted Subsidiaries
and any dividends payable in the form of Capital Stock) on any series
of Preferred Stock or Disqualified Stock of such Person and its
Restricted Subsidiaries, times (b) (x) a fraction, the numerator of
which is one and the denominator of which is one minus the then current
combined federal, state and local statutory income tax rate of such
Person, expressed as a decimal, in each case, on a consolidated basis
and in accordance with GAAP or (y) if the dividends are deductible by
such Person for income tax purposes based on law in effect at the time
of payment one.
"GAAP" means Canadian generally accepted accounting principles
as in effect from time to time.
"Global Notes" has the meaning set forth in Section 2.16.
"Government Obligations" means any security issued or
guaranteed as to principal or interest by the United States, or by a person
controlled or supervised by and acting as an instrumentality of the government
of the United States pursuant to authority granted by the Congress of the United
States or any certificate of deposit for any of the foregoing.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Debt of any other Person and
any obligation, direct or indirect, contingent or otherwise, of such Person:
(a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt of such other Person (whether arising
by virtue of partnership arrangements, or by agreements to keep-well,
to purchase assets, goods, securities or services, to take-or-pay or to
maintain financial statement conditions or otherwise), or
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(b) entered into for the purpose of assuring in any other
manner the obligee against loss in respect thereof (in whole or in
part);
provided, however, that the term "Guarantee" shall not include:
(1) endorsements for collection or deposit in the ordinary
course of business, or
(2) a contractual commitment by one Person to invest in
another Person for so long as such Investment is reasonably expected to
constitute a Permitted Investment.
The term "Guarantee" used as a verb has a corresponding
meaning. The term "Guarantor" shall mean any Person Guaranteeing any obligation.
"Guarantors" means, collectively, the Subsidiary Guarantor,
the Sister Guarantors and the Parents.
"Hedging Obligations" of any Person means any obligation of
such Person pursuant to any Interest Rate Agreement, Currency Exchange
Protection Agreement, Commodity Price Protection Agreement or any other similar
agreement or arrangement.
"Holder" or "noteholder" means the Person in whose name a Note
is registered on the Note register.
"Incur" means, with respect to any Debt or other obligation of
any Person, to create, issue, incur (by merger, conversion, exchange or
otherwise), extend, assume, Guarantee or become liable in respect of such Debt
or other obligation or (if earlier) the recording, as required pursuant to GAAP
or otherwise, of any such Debt or obligation on the balance sheet of such Person
(and "Incurrence" and "Incurred" shall have meanings correlative to the
foregoing); provided, however, that a change in GAAP or the application thereof
that results in an obligation of such Person that exists at such time, and is
not theretofore classified as Debt, becoming Debt shall not be deemed an
Incurrence of such Debt; provided further, however, that amortization of debt
discount, accrual or capitalization of dividends and interest, including the
accrual of deferred accrued interest, the accretion of principal and the payment
of interest or dividends in the form of additional securities shall not, in any
such case, be deemed to be the Incurrence of Debt; provided that in the case of
Debt or Preferred Stock sold at a discount or for which interest or dividends is
capitalized or accrued or accreted, the amount of such Debt or outstanding
Preferred Stock Incurred shall at all times be the then current accreted value
or shall include all capitalized interest.
-18-
"Indenture" means this Indenture as amended, restated or
supplemented from time to time.
"Independent Financial Advisor" means an accounting, appraisal
or investment banking firm of national standing or any third-party appraiser or
recognized expert with experience in appraising the terms and conditions of the
type of transaction or series of related transactions for which an opinion is
required, provided that such firm or appraiser is not an Affiliate of the
Company.
"Initial Purchasers" means Xxxxxxx Xxxxx Xxxxxx Inc., Deutsche
Bank Securities, Xxxxxx Xxxxxxx & Co. Incorporated, Banc One Capital Markets,
Inc, BNP Paribas Securities Corp., Fleet Securities, Inc., Scotia Capital (USA)
Inc., CIBC World Markets Corp. and Credit Lyonnais Securities (USA) Inc.
"interest" means, with respect to the Notes, interest and
Additional Interest.
"Interest Payment Date" means January 15 and July 15 of each
year.
"Interest Rate Agreement" means, for any Person, any interest
rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate option agreement, interest rate future agreement or
other similar agreement designed to protect against fluctuations in interest
rates.
"Investment" by any Person means any loan, advance or other
extension of credit (other than advances or extensions of credit and receivables
in the ordinary course of business that are recorded as accounts receivable on
the balance sheet of such Person or acquired as part of the assets acquired in
connection with an acquisition of assets otherwise permitted by this Indenture
and also excluding advances to officers and employees in the ordinary course of
business) or capital contribution (by means of transfers of cash or other
Property to others or payments for Property or services for the account or use
of others, or otherwise) to, or Incurrence of a Guarantee of any obligation of,
or purchase or acquisition of Capital Stock, bonds, notes, debentures or other
securities or evidence of Debt issued by, any other Person. For purposes of
Sections 4.10 and 4.15 and the definition of "Restricted Payment," "Investment"
shall include the Fair Market Value of the Investment of the Company, a
Guarantor and any Restricted Subsidiary in any Subsidiary of the Company at the
time that such Subsidiary is designated an Unrestricted Subsidiary; provided,
however, that upon a redesignation of an Unrestricted Subsidiary as a Restricted
Subsidiary, the Company, such Guarantor or such Restricted Subsidiary, as the
case may be, shall be deemed to continue to have a permanent "Investment" in an
Unrestricted Subsidiary (proportionate to its equity interest in such
Subsidiary) of an amount (if positive) equal to:
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(a) its "Investment" in such Subsidiary at the time of such
redesignation, less
(b) the portion (proportionate to its equity interest in such
Subsidiary) of the Fair Market Value of its Investment in such
Subsidiary at the time of such redesignation.
In determining the amount of any Investment made by transfer
of any Property other than cash, such Property shall be valued at its Fair
Market Value at the time of such Investment.
"Investment Grade Rating" means a rating equal to or higher
than Baaa3 (or the equivalent) by Moody's and BBB- (or the equivalent) by S&P.
"Issue Date" means the date on which the Notes are initially
issued (exclusive of any Additional Notes).
"judgment currency" has the meaning set forth in Section
12.13.
"Legal Defeasance" has the meaning set forth in Section 9.01.
"Legal Holiday" has the meaning set forth in Section 12.07.
"Lien" means, with respect to any Property of any Person, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement on or with respect to such Property
(including any Capital Lease Obligation, conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing or any sale and leaseback transaction).
"Maturity Date" when used with respect to any Note, means the
date on which the principal amount of such Note becomes due and payable as
therein or herein provided.
"Money Market Funds" means shares of an investment company
registered under the Investment Company Act of 1940, as amended, that holds
itself out as a money market fund, seeks to maintain a net asset value of $1.00
per share and has the highest investment rating by S&P and Moody's and, in
either case, any successor rating agency thereto.
"Moody's" means Xxxxx'x Investors Service, Inc. or any
successor rating agency.
"Xxxxx" means Xxxxx Corporation Limited, a Canadian
corporation.
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"Xxxxx Holdings" means Xxxxx Holdings U.S.A. Inc., a Delaware
corporation and wholly owned subsidiary of Xxxxx.
"Xxxxx XX" means Xxxxx North America, Inc., a Delaware
corporation and wholly owned subsidiary of Xxxxx Holdings.
"Net Available Cash" from any Asset Sale means cash payments
received therefrom (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise,
but only, in each case, as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of Debt
or other obligations relating to the Property that is the subject of such Asset
Sale or received in any other non-cash form), in each case net of:
(a) all legal, title and recording tax expenses, commissions
and other fees and expenses Incurred, and all U.S. Federal, state,
provincial, foreign and local taxes required to be accrued as a
liability under GAAP, as a consequence of such Asset Sale,
(b) all payments made on any Debt that is secured by any
Property subject to such Asset Sale in accordance with the terms of any
Lien upon or other security agreement of any kind with respect to such
Property, or which must by its terms, or in order to obtain a necessary
consent to such Asset Sale, or by applicable law, be repaid out of the
proceeds from such Asset Sale,
(c) all distributions and other payments required to be made
to minority interest holders in Subsidiaries or joint ventures as a
result of such Asset Sale,
(d) brokerage commissions and other reasonable fees and
expenses (including any severance, pension or shutdown cost and fees
and expenses of counsel, accountants and investment bankers) related to
such Asset Sale, and
(e) the deduction of appropriate amounts provided by the
seller as a reserve, in accordance with GAAP, against any liabilities
associated with the Property disposed in such Asset Sale and retained
by the Company, a Guarantor or any Restricted Subsidiary after such
Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities relating to
environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale and any deductions relating
to escrowed amounts.
"Non-Recourse Debt" means Debt
(a) as to which none of the Company, a Guarantor or any
Restricted Subsidiary provides any guarantee or credit support of any
kind (including any undertaking,
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guarantee, indemnity, agreement or instrument that would constitute
Debt) or is directly or indirectly liable (as a guarantor or otherwise)
or as to which there is any recourse to the assets of the Company, a
Guarantor or any Restricted Subsidiary; and
(b) no default with respect to which (including any rights
that the holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit (upon notice, lapse of time or
both) any holder of any other Debt of the Company, a Guarantor or any
Restricted Subsidiary to declare a default under such other Debt or
cause the payment thereof to be accelerated or payable prior to its
stated maturity.
"Non-U.S. Person" means a Person who is not a U.S. person, as
defined in Regulation S.
"Notes" means the 7-7/8% Notes Due 2011 issued by the Company
that are issued pursuant to this Indenture.
"Notes Guarantee" means, individually, a Subsidiary Guarantee
or a Parent Guarantee and, collectively, the Subsidiary Guarantees and the
Parent Guarantee.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Debt, including any guarantees thereof, and in
all cases whether direct or indirect, absolute or contingent, now outstanding or
hereafter created, assumed or incurred and including, without limitation,
interest accruing subsequent to the filing of a petition in bankruptcy or the
commencement of any insolvency, reorganization or similar proceedings at the
rate provided in the relevant documentation, whether or not an allowed claim,
and any obligation to redeem or defease any of the foregoing.
"Offer Amount" has the meaning set forth in Section 4.12(g).
"Offer Period" has the meaning set forth in Section 4.12(g).
"Offering Memorandum" means the offering memorandum dated
March 11, 2003 relating to the offering of Notes issued on the Issue Date.
"Officer" means the Chief Executive Officer, the President,
the Chief Financial Officer or any Vice President, the Treasurer or the
Secretary of the specified Person.
"Officers' Certificate" means a certificate signed by an
Officer of the specified Person, and delivered to the Trustee.
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"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company, a Guarantor or the Trustee.
"Parents" means Xxxxx and Xxxxx Holdings.
"Parent Guarantee" has the meaning set forth in Section 10.01.
"Paying Agent" has the meaning set forth in Section 2.04.
"Payment Default" means, with respect to any Debt, a failure
to pay principal of such Debt at its Stated Maturity after giving effect to any
applicable grace period provided in the instrument(s) governing such Debt.
"Permitted Debt" has the meaning set forth in Section 4.09.
"Permitted Investment" means any Investment by the Company, a
Guarantor or a Restricted Subsidiary in:
(a) the Company, a Guarantor, any Restricted Subsidiary or any
Person that will, upon the making of such Investment, become a
Restricted Subsidiary, or who is merged, consolidated or amalgamated
with or into, or transfers or conveys all or substantially all of its
assets to, or is liquidated into, the Company, a Guarantor or a
Restricted Subsidiary; provided that the primary business of such
Restricted Subsidiary is a Related Business, including, without
limitation, the Acquisition and the transactions contemplated thereby,
(b) cash or Temporary Cash Investments,
(c) receivables owing to the Company, a Guarantor or a
Restricted Subsidiary, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary
trade terms; provided, however, that such trade terms may include such
concessionary trade terms as the Company or such Guarantor or
Restricted Subsidiary deems reasonable under the circumstances,
(d) payroll, travel, commission and similar advances to cover
matters that are expected at the time of such advances ultimately to be
treated as expenses for accounting purposes and that are made in the
ordinary course of business,
(e) loans and advances to employees, directors and consultants
made in the ordinary course of business consistent with past practices
of the Company or such Guarantor or Restricted Subsidiary, as the case
may be; provided that such loans and advances do not exceed $10 million
at any one time outstanding,
-23-
(f) stock, obligations or other securities received in
settlement or good faith compromise of debts created in the ordinary
course of business and owing to the Company, a Guarantor or a
Restricted Subsidiary or in satisfaction of judgments or pursuant to
any plan of reorganization or similar arrangement upon the bankruptcy
or insolvency of a debtor,
(g) any Person to the extent such Investment represents the
non-cash consideration received in connection with an asset sale,
including an Asset Sale consummated in compliance with Section 4.12,
(h) the Notes and, if issued, any Additional Notes,
(i) Interest Rate Agreements, Currency Exchange Protection
Agreements, Hedging Obligations and Commodity Price Protection
Agreement, in each case, permitted under Section 4.09,
(j) existence on the Issue Date and, with respect to Xxxxxxx
and its Subsidiaries, Investments in an aggregate amount not exceeding
$10 million in existence at the Release and, in each case, any
permitted Refinancing thereof,
(k) a Securitization Entity or any Investment by a
Securitization Entity in any other Person, in each case in connection
with a Qualified Securitization Transaction, which Investment consists
of the transfer of Receivables and Related Assets,
(l) prepaid expenses, negotiable instruments held for deposit,
or collection and lease, utility and worker's compensation, performance
and other similar deposits provided to third parties in the ordinary
course of business,
(m) other Investments that do not exceed $75 million
outstanding at any one time in the aggregate (with the amount of each
Investment being measured at the time made and without giving effect to
subsequent changes in value),
(n) any Person where the consideration provided by the Company
or a Guarantor consists solely of Capital Stock of Xxxxx (other than
Disqualified Stock),
(o) joint ventures engaged in a Related Business that do not
exceed $150 million outstanding at any one time in the aggregate,
(p) any Person where such Investment was acquired by the
Company, a Guarantor or any Restricted Subsidiary (1) in exchange for
any other Investment or accounts receivable held by the Company, a
Guarantor or any such Restricted Subsidiary in connection with or as a
result of a bankruptcy, workout, reorganization or recapitalization
-24-
of the issuer of such other Investment or accounts receivable or (2) as
a result of a foreclosure by the Company, a Guarantor or any Restricted
Subsidiary with respect to any secured Investment or such other
transfer of title with respect to any secured Investment in default,
(q) negotiable instruments held for deposit or collection in
the ordinary course of business,
(r) guarantees by the Company, a Guarantor or a Restricted
Subsidiary of Debt otherwise permitted to be Incurred by the Company, a
Guarantor or a Restricted Subsidiary under this Indenture and the
creation of Liens on the assets of the Company, a Guarantor or a
Restricted Subsidiary in compliance with Section 4.11, or
(s) any Investment made as part of the consideration received
for the sale of the Capital Stock or Properties of Peak Technologies
Inc. and its subsidiaries, substantially as it existed as of the Issue
Date.
"Permitted Liens" means:
(a) Liens securing the Notes and the Guarantees;
(b) (1) Liens securing Debt Incurred under Section 4.09(c)(1)
and (2) Liens securing (A) Debt in an amount not to exceed the product
of 2.75 times the Company's Pro Forma Consolidated EBITDA for the most
recently ended four fiscal quarters for which financial statements have
been filed with the Commission pursuant to Section 4.18 immediately
preceding the date on which such Debt is Incurred minus (B) the
aggregate amount outstanding of Debt permitted to be Incurred under
Section 4.09(c)(1);
(c) Liens securing Debt of a Restricted Subsidiary permitted
to be Incurred under Section 4.09(c)(14) and (c)(17);
(d) Liens securing Debt permitted to be Incurred under Section
4.09(c)(3); provided that any such Lien may not extend to any Property
of the Company, a Guarantor or any Restricted Subsidiary, other than
the Property acquired, constructed or leased with the proceeds of such
Debt and any improvements or accessions to such Property;
(e) Liens for taxes, assessments or governmental charges or
levies on the Property of the Company, a Guarantor or any Restricted
Subsidiary if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good
faith and by appropriate proceedings; provided that any reserve or
-25-
other appropriate provision that shall be required in conformity with
GAAP shall have been made therefor;
(f) Liens imposed by law or regulation, such as statutory
Liens or landlords', carriers', warehousemen's and mechanics' Liens,
Liens in favor of customs or revenue authorities and other similar
Liens on the Property of the Company, a Guarantor or any Restricted
Subsidiary arising in the ordinary course of business and securing
payment of obligations that are not more than 60 days past due or are
being contested in good faith and by appropriate proceedings or Liens
arising solely by virtue of any statutory or common law provisions
relating to customs, duties, bankers' liens, rights of set-off or
similar rights and remedies as to deposit accounts or other funds
maintained with a creditor depositary institution;
(g) Liens on the Property of the Company, a Guarantor or any
Restricted Subsidiary Incurred in the ordinary course of business to
secure performance of obligations with respect to statutory or
regulatory requirements, performance bids, trade contracts, letters of
credit, bankers' acceptances, performance or return-of-money bonds,
surety bonds or other obligations of a like nature and Incurred in a
customary manner, in each case which are not Incurred in connection
with the borrowing of money, the obtaining of advances or the payment
of the deferred purchase price of Property and which do not in the
aggregate impair in any material respect the use of Property in the
operation of the business of the Company and the Restricted
Subsidiaries taken as a whole;
(h) Liens on Property at the time the Company, a Guarantor or
any Restricted Subsidiary acquired such Property, including any
acquisition by means of a merger or consolidation with or into the
Company, a Guarantor or any Restricted Subsidiary; provided, however,
that any such Lien may not extend to any other Property of the Company,
a Guarantor or any Restricted Subsidiary; provided further, however,
that such Liens shall not have been Incurred in anticipation of or in
connection with the transaction or series of related transactions
pursuant to which such Property was acquired by the Company, a
Guarantor or any Restricted Subsidiary;
(i) Liens on the Property of a Person at the time such Person
becomes a Restricted Subsidiary; provided, however, that any such Lien
may not extend to any other Property of the Company, a Guarantor or any
other Restricted Subsidiary that is not a direct or, prior to such
time, indirect Subsidiary of such Person; provided further, however,
that any such Lien was not Incurred in anticipation of or in connection
with the transaction or series of related transactions pursuant to
which such Person became a Restricted Subsidiary;
-26-
(j) pledges or deposits by the Company, a Guarantor or any
Restricted Subsidiary under workmen's compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the payment of
Debt) or leases to which the Company, a Guarantor or any Restricted
Subsidiary is a party, or deposits to secure public or statutory
obligations of the Company, a Guarantor or any Restricted Subsidiary,
or deposits for the payment of rent, in each case Incurred in the
ordinary course of business;
(k) utility easements, building restrictions and such other
encumbrances or charges against real Property as are of a nature
generally existing with respect to properties of a similar character;
(l) any provision for the retention of title to any Property
by the vendor or transferor of such Property which Property is acquired
by the Company, a Guarantor or a Restricted Subsidiary in a transaction
entered into in the ordinary course of business of the Company, a
Guarantor or a Restricted Subsidiary and for which kind of transaction
it is normal market practice for such retention of title provision to
be included;
(m) Liens arising by means of any judgment, decree or order of
any court, to the extent not otherwise resulting in a Default, and any
Liens that are required to protect or enforce rights in any
administrative, arbitration or other court proceedings in the ordinary
course of business;
(n) Liens securing Debt permitted to be Incurred with respect
to any Hedging Obligations pursuant to Section 4.09 or any collateral
for such Debt to which the Hedging Obligations relate;
(o) Liens on and pledges of the Capital Stock of any
Unrestricted Subsidiary to secure Debt of that Unrestricted Subsidiary;
(p) (1) mortgages, Liens, security interests, restrictions,
encumbrances or any other matters of record that have been placed by
any developer, landlord or other third party on property over which the
Company, a Guarantor or any Restricted Subsidiary has easement rights
or on any real property leased by the Company, a Guarantor or any
Restricted Subsidiary or similar agreements relating thereto and (2)
any condemnation or eminent domain proceedings or compulsory purchase
order affecting real property;
(q) Liens existing on the Issue Date and Liens on assets of
Xxxxxxx that existed on the Issue Date, but, from and after the
Release, not including Liens securing the Existing More Credit
Agreement or the Existing Xxxxxxx Credit Agreement;
-27-
(r) Liens in favor of the Company, a Guarantor or any
Restricted Subsidiary;
(s) Liens on assets of a Securitization Entity Incurred in
connection with a Qualified Securitization Transaction;
(t) Liens on the Property of the Company, a Guarantor or any
Restricted Subsidiary to secure any Refinancing of Debt, in whole or in
part, secured by any Lien described in the foregoing clause (c), (h),
(i) or (q); provided that any such Lien is limited to all or part of
the same property or assets (plus improvements, accessions, proceeds or
dividends or distributions in respect thereof) that secured the Debt
being Refinanced; and
(u) other Liens to secure Debt, so long as the aggregate
principal amount of Debt secured thereby does not exceed 10% of the
Combined Consolidated Net Tangible Assets of the Company, as determined
by reference to the most recent balance sheet included in the financial
statements filed with the Commission or the Trustee pursuant to Section
4.18.
"Permitted Refinancing Debt" means any Debt that refinances
any Debt incurred under Section 4.09(b), 4.09(c)(2) or 4.09(c)(14), including
any successive Refinancings, so long as:
(a) such Debt is in an aggregate principal amount (or if
Incurred with original issue discount, an aggregate issue price) not in
excess of the sum of:
(1) the aggregate principal amount (or if Incurred
with original issue discount, the aggregate accreted value)
and any accrued but unpaid interest then outstanding of the
Debt being Refinanced, and
(2) an amount necessary to pay any fees and expenses,
including premiums, tender and defeasance costs, related to
such Refinancing,
(b) in the case of the Refinancing of term Debt, the Average
Life of such Debt is equal to or greater than the Average Life of the
Debt being Refinanced,
(c) in the case of the Refinancing of term Debt, the final
Stated Maturity of the Debt being Incurred is no earlier than the final
Stated Maturity of the Debt being Refinanced, and
(d) in the case of the Refinancing of Debt of the Company or a
Guarantor:
-28-
(1) the new Debt shall not be senior in right of
payment of the Debt being Refinanced; and
(2) if the Debt being Refinanced constitutes
Subordinated Obligations of the Company or a Guarantor, the
new Debt shall be subordinated to the Notes or the relevant
Guarantee, as applicable, at least to the same extent as the
Subordinated Obligations;
provided, however, that Permitted Refinancing Debt shall not include:
(x) Debt of a Restricted Subsidiary (other than a Subsidiary
Guarantor) that Refinances Debt of the Company or a Guarantor, or
(y) Debt of the Company, a Guarantor or a Restricted
Subsidiary that Refinances Debt of an Unrestricted Subsidiary.
"Person" means any individual, corporation, company (including
any limited liability company), association, partnership, joint venture, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
the payment of dividends, or as to the distribution of assets upon any voluntary
or involuntary liquidation or dissolution of such Person, over shares of any
other class of Capital Stock issued by such Person.
"Prepayment Offer" has the meaning set forth in Section
4.12(e).
"Private Placement Legend" means the legend initially set
forth on the Rule 144A Notes and Other Notes that are Restricted Notes in the
form set forth in Exhibit B.
"pro forma" means, with respect to any calculation made or
required to be made pursuant to the terms hereof, a calculation performed in
accordance with the terms of this Indenture and (to the extent not conflicting
with such terms) Article 11 of Regulation S-X promulgated under the Securities
Act (as in effect on the Issue Date).
"Pro Forma Consolidated EBITDA" means, for any Person for any
period, the Consolidated EBITDA of such Person on a pro forma basis; provided
that if, since the beginning of the relevant period,
(a) (x) any Person was designated as an Unrestricted
Subsidiary or redesignated as or otherwise became a Restricted
Subsidiary, such event shall be deemed to have occurred on the first
day of the applicable reference period, or (y) any Person that
subsequently became a Restricted Subsidiary or was merged with or into
the Company
-29-
or any Restricted Subsidiary since the beginning of the period shall
have made any Investment in any Person or made any acquisition,
disposition, merger or consolidation that would have required
adjustment pursuant to this definition, then in each case, Pro Forma
Consolidated EBITDA shall be calculated giving pro forma effect thereto
for such period as if such designation, Investment, acquisition,
disposition, merger or consolidation had occurred at the beginning of
the applicable reference period; and
(b) in the event that pro forma effect is being given to any
Repayment of Debt, Pro Forma Consolidated EBITDA for such period shall
be calculated as if such Person or such Restricted Subsidiary had not
earned any interest income actually earned during such period in
respect of the funds used to Repay such Debt.
"Pro Forma Consolidated Interest Expense" means, with respect
to any period, Consolidated Interest Expense adjusted (without duplication) to
give pro forma effect to any Incurrence of Debt that remains outstanding at the
end of the period or any Repayment of Debt since the beginning of the relevant
period as if such Incurrence or Repayment had occurred on the first day of such
period.
If any Debt bears a floating or fluctuating rate of interest
and is being given pro forma effect, the interest expense on such Debt shall be
calculated as if the base interest rate in effect for such floating or
fluctuating rate of interest on the date of determination were in effect for the
whole period (taking into account any Interest Rate Agreement applicable to such
Debt if such Interest Rate Agreement had when entered into a term of at least 12
months or, if shorter, the term of the Debt). In the event the Capital Stock of
any Restricted Subsidiary is sold during the period, the Debt of such Restricted
Subsidiary shall be deemed to have been Repaid during such period to the extent
the Company and the continuing Guarantors and Restricted Subsidiaries are no
longer liable for such Debt after such sale.
"Property" means, with respect to any Person, any interest of
such Person in any kind of property or asset, whether real, personal or mixed,
or tangible or intangible, including Capital Stock in, and other securities of,
any other Person. For purposes of any calculation required pursuant to this
Indenture, the value of any Property shall be its Fair Market Value.
"Purchase Date" has the meaning set forth in Section 4.12(f).
"Purchase Money Debt" means Debt:
(a) consisting of the deferred purchase price of Property,
conditional sale obligations, obligations under any title retention
agreement, other purchase money obligations and obligations in respect
of industrial revenue bonds, in each case where the
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maturity of such Debt does not exceed the anticipated useful life of
the Property being financed, and
(b) Incurred to finance the acquisition, construction or lease
by the Company or a Restricted Subsidiary of such Property, including
additions and improvements thereto;
provided, however, that such Debt is Incurred within 180 days after the
acquisition, completion of the construction, addition or improvement or lease of
such Property by the Company, such Guarantor or such Restricted Subsidiary.
"Qualified Equity Offering" means any public or private
offering for cash of Capital Stock (other than Disqualified Stock) of Xxxxx or
Xxxxx Holdings other than (i) public offerings of Capital Stock registered on
Form S-8 or (ii) other issuances upon the exercise of options of employees of
Xxxxx or any of its Subsidiaries.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A promulgated under the Securities Act.
"Qualified Securitization Transaction" means any transaction
or series of related transactions that may be entered into by the Company, a
Guarantor or any Restricted Subsidiary pursuant to which the Company, a
Guarantor or any Restricted Subsidiary may sell, convey or otherwise transfer to
(a) a Securitization Entity (in the case of a transfer by the Company, a
Guarantor or any Restricted Subsidiary) and (b) any other Person (in the case of
a transfer by a Securitization Entity), or may grant a security interest in,
Receivables and Related Assets.
"Receivables and Related Assets" means any account receivable
(whether now existing or arising thereafter) of the Company, a Guarantor or any
Restricted Subsidiary and any assets related thereto, including all collateral
securing such accounts receivable, all contracts and contract rights and all
Guarantees or other obligations in respect of such accounts receivable, proceeds
of such accounts receivable and other assets which are customarily transferred
or in respect of which security interests are customarily granted in connection
with asset securitization transactions involving accounts receivable.
"Redemption Date" when used with respect to any Note to be
redeemed pursuant to paragraph 5 of the Notes means the date fixed for such
redemption pursuant to the terms of the Notes.
"Refinance" means, in respect of any Debt, to refinance,
extend, renew, refund, repay, prepay, repurchase, redeem, defease or retire, or
to issue other Debt in exchange or replacement for, such Debt. "Refinanced" and
"Refinancing" shall have correlative meanings.
-31-
"Registrar" has the meaning set forth in Section 2.04.
"Registration Rights Agreement" means the registration rights
agreement, dated the Issue Date, among the Company, the Guarantors and the
Initial Purchasers and the Initial Purchasers.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" has the meaning set forth in
Section 2.16.
"Regulation S Notes" has the meaning set forth in Section
2.02.
"Related Business" means any business that is the same as or
related, ancillary or complementary to the business of a Parent, a Guarantor or
any Restricted Subsidiary on the Issue Date or any reasonable extension,
development or expansion of such business, including the businesses acquired
pursuant to the Acquisition.
"Release" means the release of the Escrowed Property pursuant
to the Escrow and Pledge Agreement.
"Release Date Supplemental Indenture" means a supplemental
indenture executed and delivered by a Guarantor on the date of the Release.
"Repay" means, in respect of any Debt, to repay, prepay,
repurchase, redeem, legally defease or otherwise retire such Debt with the
effect that the Debt is no longer an obligation of the Person that had Incurred
such Debt or any of its Restricted Subsidiaries. "Repayment" and "Repaid" shall
have correlative meanings. For the purposes of Section 4.12 and the definition
of "Fixed Charge Coverage Ratio," Debt shall be considered to have been Repaid
only to the extent the related loan commitment, if any, shall have been
permanently reduced in connection therewith.
"Required Filing Dates" has the meaning set forth in Section
4.17.
"Required Rating Agencies" means both Xxxxx'x and S&P.
"Responsible Officer" shall mean, when used with respect to
the Trustee, any officer assigned by the Trustee to administer corporate trust
matters and any other officer of the Trustee to administer corporate trust
matters and to whom any corporate trust matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Restricted Global Note" has the meaning set forth in Section
2.16.
-32-
"Restricted Note" has the same meaning as "Restricted
Security" set forth in Rule 144(a)(3) promulgated 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 Note is a Restricted
Note.
"Restricted Payment" means:
(a) any dividend or distribution (whether made in cash,
securities or other Property) declared or paid by the Company, a
Guarantor or any Restricted Subsidiary on or with respect to any shares
of its Capital Stock, except for (i) any dividend or distribution that
is made solely to the Company, a Guarantor or a Restricted Subsidiary
(and, if such Restricted Subsidiary is not a Wholly Owned Restricted
Subsidiary, to the other shareholders of such Restricted Subsidiary on
a pro rata basis or on a basis that results in the receipt by the
Company, a Guarantor or a Restricted Subsidiary of dividends or
distributions of greater value than it would receive on a pro rata
basis) or (ii) any dividend or distribution payable solely in shares of
Capital Stock (other than Disqualified Stock) of the Company, a
Guarantor or a Restricted Subsidiary or in options, warrants or other
rights to acquire shares of Capital Stock (other than Disqualified
Stock) of the Company, a Guarantor or a Restricted Subsidiary;
(b) the purchase, repurchase, redemption, acquisition or
retirement for value of any Capital Stock of the Company, a Guarantor
or a Restricted Subsidiary (other than from the Company, a Guarantor or
a Restricted Subsidiary or any entity that becomes a Restricted
Subsidiary as a result of such transactions) or securities exchangeable
for or convertible into any such Capital Stock, including the exercise
of any option to exchange any Capital Stock (other than for or into
Capital Stock of the Company, a Guarantor or a Restricted Subsidiary
that is not Disqualified Stock); provided that, notwithstanding
anything in this definition to the contrary, the purchase, repurchase,
redemption, acquisition or retirement for value of any Disqualified
Stock of the Company, a Guarantor or a Restricted Subsidiary at its
scheduled mandatory redemption date shall only constitute a Restricted
Payment to the extent (and only to the extent) that the issuance of
such Disqualified Stock increased the amount available for Restricted
Payments pursuant to Section 4.10(b)(3)(iii);
(c) the purchase, repurchase, redemption, acquisition or
retirement for value, prior to the date for any scheduled maturity,
sinking fund or amortization or other installment payment, of any
Subordinated Obligation (other than the purchase, repurchase or other
acquisition of any Subordinated Obligation purchased in anticipation of
satisfying a scheduled maturity, sinking fund or amortization or other
installment obligation, in each case due within one year of the date of
acquisition);
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(d) any Investment (other than Permitted Investments and
Guarantees by Restricted Subsidiaries of Debt Incurred pursuant to
Section 4.09) in any Person; or
(e) the issuance, sale or other disposition of Capital Stock
of any Restricted Subsidiary to a Person (other than the Company, a
Guarantor or another Restricted Subsidiary) if the result thereof is
that such Restricted Subsidiary shall cease to be a Subsidiary of the
Company or a Guarantor, in which event the amount of such "Restricted
Payment" shall be the Fair Market Value of the remaining interest, if
any, in such former Restricted Subsidiary held by the Company, the
Guarantors and the Restricted Subsidiaries.
"Restricted Period" has the meaning set forth in Section 2.07.
"Restricted Note" has the same meaning as "Restricted
Security" set forth in Rule 144(a)(3) promulgated 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 Note is a Restricted
Note.
"Restricted Subsidiary" means each Subsidiary of Xxxxx as of
the Issue Date and thereafter unless such Subsidiary is designated an
Unrestricted Subsidiary in accordance with the provisions of this Indenture.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Rule 144A Notes" has the meaning set forth in Section 2.02.
"S&P" means Standard & Poor's Rating Services, a Division of
The XxXxxx-Xxxx Companies, Inc., or any successor rating agency.
"SEC" means the U.S. Securities and Exchange Commission.
"Securities Account Control Agreement" means the securities
account control agreement dated the Issue Date among the Company, the Securities
Intermediary and the Trustee.
"Securities Act" means the U.S. Securities Act of 1933, as
amended.
"Securities Intermediary" has the meaning assigned to such
term in the Escrow and Pledge Agreement.
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"Securitization Entity" means a Restricted Subsidiary that is
a wholly owned subsidiary (or another Person in which the Company, a Guarantor
or a Restricted Subsidiary makes an Investment and to which the Company, a
Guarantor or a Restricted Subsidiary transfers Receivables and Related Assets)
that engages in no activities other than in connection with the financing of
accounts receivable and that is designated by the Board of Directors of the
Company and the Board of Directors of Xxxxx (as provided below) as a
Securitization Entity and:
(a) no portion of the Debt or any other obligations
(contingent or otherwise) of which:
(1) is guaranteed by the Company, a Guarantor or any
Restricted Subsidiary (excluding Guarantees (other than the
principal of, and interest on, Debt) pursuant to Standard
Securitization Undertakings);
(2) is recourse to or obligates the Company, a
Guarantor or any Restricted Subsidiary (other than such
Securitization Entity) in any way other than pursuant to
Standard Securitization Undertakings; or
(3) subjects any Property or asset of the Company, a
Guarantor or any Restricted Subsidiary (other than such
Securitization Entity), directly or indirectly, contingently
or otherwise, to the satisfaction thereof, other than pursuant
to Standard Securitization Undertakings;
(b) with which none of the Company, a Guarantor or any
Restricted Subsidiary (other than such Securitization Entity) has any
material contract, agreement, arrangement or understanding other than
on terms no less favorable to the Company or such Restricted Subsidiary
than those that might be obtained at the time from Persons that are not
Affiliates of the Company, other than fees payable in the ordinary
course of business in connection with servicing accounts receivable of
such entity; and
(c) to which neither the Company nor any Restricted Subsidiary
(other than such Securitization Entity) has any obligation to maintain
or preserve such entity's financial condition or cause such entity to
achieve certain levels of operating results.
Any designation of a Subsidiary as a Securitization Entity
shall be evidenced to the Trustee by filing with the Trustee a certified copy of
the resolution of the Board of Directors of the Company and the Board of
Directors of Xxxxx giving effect to the designation and an Officers' Certificate
of each of them certifying that the designation complied with the preceding
conditions and was permitted by this Indenture.
-35-
"Security Documents" means the Escrow and Pledge Agreements
and the Securities Account Control Agreement.
"Senior Credit Facility Debt" means all obligations under or
with respect to Debt Incurred under (1) the Credit Agreement, (2) Section
4.09(c)(1) and (3) any Interest Rate Agreement or Currency Exchange Protection
Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" of Xxxxx within the meaning of Rule 1-02 under
Regulation S-X promulgated by the Commission.
"Sister Guarantors" means Xxxxx XX and Xxxxxxx as of the date
of the Release (after giving effect to the consummation of the Acquisition).
"special interest" means the additional interest, if any, to
be paid on the Notes as described in clause 5(d) of the Notes, and, for greater
certainty, the term "interest" includes special interest, if any, with respect
to the Notes.
"Special Mandatory Redemption" has the meaning set forth in
Section 3.07.
"Special Mandatory Redemption Date" has the meaning set forth
in Section 3.07.
"Special Mandatory Redemption Price" means a price equal to
$400,174,970 plus accrued and unpaid interest on the Notes from the Issue Date,
or if interest has been paid on the Notes, the last date to which interest has
been paid preceding the Special Mandatory Redemption Date.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company, a Guarantor
or any Restricted Subsidiary that are reasonably customary in an accounts
receivable securitization transaction, including, without limitation, servicing
of the obligations thereunder.
"Stated Maturity" means (a) with respect to any debt security,
the date specified in such security as the fixed date on which the payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the Company unless such
contingency has occurred) and (b) with respect to any scheduled installment of
principal of or interest on any debt security, the date specified in such debt
security as the fixed date on which such installment is due and payable.
-36-
"Subordinated Obligation" means any Debt of the Company or any
Guarantor (whether outstanding on the Issue Date or thereafter Incurred) that is
subordinate or junior in right of payment to the Notes or such entity's Notes
Guarantee pursuant to a written agreement to that effect.
"Subsidiary" means, in respect of any Person, any corporation,
company (including any limited liability company), association, partnership,
joint venture or other business entity of which a majority of the total voting
power of the Voting Stock is at the time owned or controlled, directly or
indirectly, by:
(a) such Person,
(b) such Person and one or more Subsidiaries of such Person,
or
(c) one or more Subsidiaries of such Person.
"Subsidiary Guarantee" means a Guarantee on the terms set
forth in Article Ten by a Subsidiary Guarantor of the Company's obligations with
respect to the Notes.
"Subsidiary Guarantor" means (i) each Subsidiary of Xxxxx
organized under the laws of any state of the United States or Canada or any
province or territory thereof as of the Release (after giving effect to the
consummation of the Acquisition), (ii) each other Subsidiary of Xxxxx that is a
guarantor of the Credit Agreement as of the Release (after giving effect to the
consummation of the Acquisition) and (iii) each Restricted Subsidiary that
executes a Subsidiary Guarantee in accordance with Section 4.16, in each case
until such time as such Subsidiary Guarantor shall be released in accordance
with the terms of this Indenture.
"Surviving Person" has the meaning set forth in Section 5.01.
"Tax" means any tax, duty, assessment or governmental charge
of whatever nature (or interest on, or penalties or other additions to, any of
the foregoing) imposed or levied by or on behalf of, or within, Canada or any
province or territory of Canada or any political subdivision or taxing authority
of Canada or any province or territory of Canada.
"Temporary Cash Investments" means:
(a) any Government Obligation, maturing not more than one year
after the date of acquisition, issued by the United States or Canada or
an instrumentality or agency thereof, and constituting a general
obligation of the United States or Canada;
(b) any certificate of deposit, maturing not more than one
year after the date of acquisition, issued by, or time deposit of, a
commercial banking institution that is a member of the U.S. Federal
Reserve System and that has combined capital and surplus
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and undivided profits of not less than $200 million, whose debt has a
rating, at the time as of which any investment therein is made, of
"P-1" (or higher) according to Xxxxx'x or "A-1" (or higher) according
to S&P (or, in the case of foreign Subsidiaries of Xxxxx, any local
office of any commercial bank organized under the laws of the relevant
jurisdiction or any political subdivision thereof which has a combined
capital surplus and undivided profits in excess of $200 million (or the
foreign currency equivalent thereof));
(c) commercial paper, maturing not more than one year after
the date of acquisition, issued by a corporation (other than an
Affiliate or Subsidiary of the Company) organized and existing under
the laws of the United States or Canada, any state, province or
territory thereof or the District of Columbia with a rating, at the
time as of which any investment therein is made, of "P-1" (or higher)
according to Xxxxx'x or "A-1" (or higher) according to S&P;
(d) any money market deposit accounts issued or offered by a
commercial bank organized in the United States or Canada having capital
and surplus and undivided profits in excess of $200 million; provided
that the short-term debt of such commercial bank has a rating, at the
time of Investment, of "P-1" (or higher) according to Xxxxx'x or "A-1"
(or higher) according to S&P;
(e) repurchase obligations and reverse repurchase obligations
with a term of not more than 30 days for underlying securities of the
types described in clause (a) or (b) entered into with a bank meeting
the qualifications described in clause (b) above;
(f) investments in securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed by any
state, province, commonwealth or territory of the United States or
Canada, or by any political subdivision or taxing authority thereof,
and rated at least "A-1" by S&P or "P-1" by Xxxxx'x;
(g) interests in funds investing substantially all their
assets in securities of the types described in clauses (a) through (f);
and
(h) interests in mutual funds with a rating of AAA- or higher
that invest all of their assets in short-term securities, instruments
and obligations which carry a minimum rating of "A-2" by S&P or "P-2"
by Xxxxx'x and which are managed by a bank meeting the qualifications
in clause (b) above; and
(i) other short-term investments utilized by Restricted
Subsidiaries of Xxxxx organized outside the United States and Canada
made in accordance with normal
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and customary investment practices for cash management of such
Restricted Subsidiaries of Xxxxx.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the date of this Indenture (except as
provided in Section 8.03).
"Transactions" means the Release, the consummation of the
Acquisition and the closing of the Credit Agreement (and the concurrent release
of any funds held in escrow under the Credit Facility Escrow Arrangements).
"Trustee" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
the successor.
"Unrestricted Subsidiary" means:
(a) any Subsidiary of Xxxxx that at the time of determination
will be designated as an Unrestricted Subsidiary as permitted or
required pursuant to Section 4.15 and is not thereafter redesignated as
a Restricted Subsidiary as permitted pursuant thereto; and
(b) any Subsidiary of an Unrestricted Subsidiary.
"Voting Stock" of any Person means all classes of Capital
Stock or other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
"Wholly Owned Subsidiary" means, at any time, a Subsidiary all
the Voting Stock of which (except directors' qualifying shares and shares
required by applicable law to be held by a Person other than the Company or a
Subsidiary) is at such time owned, directly or indirectly, by the Company, Xxxxx
XX, Xxxxxxx or a Parent, as the case may be, and their other wholly owned
Subsidiaries.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
portion of such provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA 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 Notes.
"indenture securityholder" means a Holder.
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"indenture to be qualified" means this Indenture.
"obligor on this indenture securities" means the Company, the
Guarantors or any other obligor on the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined in the TIA by reference to another statute or defined by Commission
rule have the meanings therein assigned to them.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether
defined expressly or by reference;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and in the
plural include the singular;
(4) words used herein implying any gender shall apply to both
genders;
(5) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section
or other subsection;
(6) unless otherwise specified herein, all accounting terms
used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be
delivered hereunder shall be prepared in accordance with GAAP;
(7) "$," "U.S. Dollars" and "United States Dollars" each refer
to United States dollars, or such other money of the United States that
at the time of payment is legal tender for payment of public and
private debts; and
(8) whenever in this Indenture there is mentioned, in any
context, principal, interest or any other amount payable under or with
respect to any Note, such mention shall be deemed to include mention of
the payment of Additional Interest to the extent that, in such context,
Additional Interest are, were or would be payable in respect thereof.
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ARTICLE TWO
THE SECURITIES
SECTION 2.01. Amount of Notes.
The Trustee shall initially authenticate Notes for original
issue on the Issue Date in an aggregate principal amount of $403,000,000 upon a
written order of the Company in the form of an Officers' Certificate of the
Company (other than as provided in Section 2.08). The Trustee shall authenticate
additional Notes ("Additional Notes") thereafter in unlimited aggregate
principal amount (so long as permitted by the terms of this Indenture,
including, without limitation, Section 4.09) for original issue upon a written
order of the Company in the form of an Officers' Certificate in aggregate
principal amount as specified in such order (other than as provided in Section
2.08). Each such written order shall specify the amount of Notes to be
authenticated and the date on which the Notes are to be authenticated.
SECTION 2.02. Form and Dating.
The Notes and the Trustee's certificate of authentication with
respect thereto shall be substantially in the form set forth in Exhibit A, which
is incorporated in and forms a part of this Indenture. The Notes may have
notations, legends or endorsements required by law, rule or usage to which the
Company is subject. Without limiting the generality of the foregoing, Notes
offered and sold to Qualified Institutional Buyers in reliance on Rule 144A
("Rule 144A Notes") shall bear the legend and include the form of assignment set
forth in Exhibit B, Notes offered and sold in offshore transactions in reliance
on Regulation S ("Regulation S Notes") shall bear the legend and include the
form of assignment set forth in Exhibit C. Each Note shall be dated the date of
its authentication.
The terms and provisions contained in the Notes shall
constitute, and are expressly made, a part of this Indenture and, to the extent
applicable, the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and agree to be bound
thereby.
The Notes may be presented for registration of transfer and
exchange at the offices of the Registrar.
SECTION 2.03. Execution and Authentication.
The Notes shall be executed on behalf of the Company by its
Chairman of the Board, Chief Executive Officer, Chief Financial Officer,
President or any Vice President. The signature of any of these officers on the
Notes may be manual or facsimile.
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If an Officer whose signature is on a Note was an Officer at
the time of such execution but no longer holds that office at the time the
Trustee authenticates the Note, the Note shall be valid nevertheless.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if
any Note shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Note to the Trustee
for cancellation as provided in Section 2.12, for all purposes of this Indenture
such Note shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
The Notes shall be issuable only in fully registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
SECTION 2.04. Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange (the "Registrar"), and
an office or agency where Notes may be presented for payment (the "Paying
Agent") and an office or agency where notices and demands to or upon the
Company, if any, in respect of the Notes and this Indenture may be served. The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may have one or more additional Paying Agents. The term "Paying
Agent" includes any additional Paying Agent.
The Company shall enter into an appropriate agency agreement,
which shall incorporate the provisions of the TIA, with any Agent that is not a
party to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of the
name and address of any such Agent. If the Company fails to maintain a Registrar
or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 7.07.
The Company initially appoints the Trustee as Registrar,
Paying Agent and Agent for service of notices and demands in connection with the
Notes and this Indenture and the Company may change the Paying Agent without
prior notice to the Holders. The Company or any of its Subsidiaries may act as
Paying Agent.
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SECTION 2.05. Paying Agent To Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of or premium or interest on the Notes (whether such money has been
paid to it by the Company or any other obligor on the Notes or the Guarantors),
and the Company and the Paying Agent shall notify the Trustee of any default by
the Company (or any other obligor on the Notes) in making any such payment.
Money held in trust by the Paying Agent need not be segregated except as
required by law and in no event shall the Paying Agent be liable for any
interest on any money received by it hereunder; provided that if the Company or
an Affiliate thereof acts as Paying Agent, it shall segregate the money held by
it as Paying Agent and hold it as a separate trust fund. The Company at any time
may require the Paying Agent to pay all money held by it to the Trustee and
account for any funds disbursed and the Trustee may at any time during the
continuance of any Event of Default specified in Section 6.01(1) or (2), upon
written request to the Paying Agent, require such Paying Agent to pay forthwith
all money so held by it to the Trustee and to account for any funds disbursed.
Upon making such payment, the Paying Agent shall have no further liability for
the money delivered to the Trustee.
SECTION 2.06. Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of the Holders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least five Business Days before each Interest Payment
Date, and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of the Holders; provided that, as long as the Trustee is the
Registrar, no such list need be furnished.
SECTION 2.07. Transfer and Exchange.
Subject to Sections 2.16 and 2.17, when Notes are presented to
the Registrar with a request from the Holder of such Notes to register a
transfer or to exchange them for an equal principal amount of Notes of other
authorized denominations, the Registrar shall register the transfer as
requested. Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar, duly executed by
the Holder thereof or his attorneys duly authorized in writing. To permit
registrations of transfers and exchanges, the Company shall issue and execute
and the Trustee shall authenticate new Notes (and the Guarantors shall execute
the guarantee thereon) evidencing such transfer or exchange at the Registrar's
request. No service charge shall be made to the Holder for any registration of
transfer or exchange. The Company may require from the Holder payment of a sum
sufficient to cover any transfer taxes or other governmental charge that may be
imposed in relation to a transfer
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or exchange, but this provision shall not apply to any exchange pursuant to
Section 2.11, 3.06, 4.08, 4.12 or 8.05 (in which events the Company shall be
responsible for the payment of such taxes). The Registrar shall not be required
to exchange or register a transfer of any Note for a period of 15 days
immediately preceding the redemption of Notes, except the unredeemed portion of
any Note being redeemed in part.
Any Holder of the Global Note shall, by acceptance of such
Global Note, agree that transfers of the beneficial interests in such Global
Note may be effected only through a book entry system maintained by the Holder
of such Global Note (or its agent), and that ownership of a beneficial interest
in the Global Note shall be required to be reflected in a book entry.
Except as expressly provided herein, neither the Trustee nor
the Registrar shall have any duty to monitor the Company's compliance with or
have any responsibility with respect to the Company's compliance with any
Federal or state securities laws.
SECTION 2.08. Replacement Notes.
If a mutilated Note is surrendered to the Registrar or the
Trustee, or if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Note (and the Guarantors shall execute the guarantee
thereon) if the Holder of such Note furnishes to the Company and the Trustee
evidence reasonably acceptable to them of the ownership and the destruction,
loss or theft of such Note and if the requirements of Section 8-405 of the
New
York Uniform Commercial Code as in effect on the date of this Indenture are met.
If required by the Trustee or the Company, an indemnity bond shall be posted,
sufficient in the judgment of all to protect the Company, the Guarantors, the
Trustee or any Paying Agent from any loss that any of them may suffer if such
Note is replaced. The Company may charge such Holder for the Company's
reasonable out-of-pocket expenses in replacing such Note and the Trustee may
charge the Company for the Trustee's expenses (including, without limitation,
attorneys' fees and disbursements) in replacing such Note. Every replacement
Note shall constitute a contractual obligation of the Company.
SECTION 2.09. Outstanding Notes.
The Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for (a) those canceled by it, (b) those
delivered to it for cancellation, (c) to the extent set forth in Sections 9.01
and 9.02, on or after the date on which the conditions set forth in Section 9.01
or 9.02 have been satisfied, those Notes theretofore authenticated and delivered
by the Trustee hereunder and (d) those described in this Section 2.09 as not
outstanding. Subject to Section 2.10, a Note does not cease to be outstanding
because the Company or one of its Affiliates holds the Note.
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If a Note is replaced pursuant to Section 2.08, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser in whose hands such Note is a
legal, valid and binding obligation of the Company.
If the Paying Agent holds, in its capacity as such, on any
Maturity Date, money sufficient to pay all accrued interest and principal with
respect to the Notes payable on that date and is not prohibited from paying such
money to the Holders thereof pursuant to the terms of this Indenture, then on
and after that date such Notes cease to be outstanding and interest on them
ceases to accrue.
SECTION 2.10. Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any declaration of acceleration or notice of
default or direction, waiver or consent or any amendment, modification or other
change to this Indenture, Notes owned by the Company or any other Affiliate of
the Company shall be disregarded as though they were not outstanding, except
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent or any amendment, modification
or other change to this Indenture, only Notes as to which a Responsible Officer
of the Trustee has actually received an Officers' Certificate stating that such
Notes are so owned shall be so disregarded. Notes so owned which have been
pledged in good faith shall not be disregarded if the pledgee established to the
satisfaction of the Trustee the pledgee's right so to act with respect to the
Notes and that the pledgee is not the Company, a Guarantor, any other obligor on
the Notes or any of their respective Affiliates.
SECTION 2.11. Temporary Notes.
Until definitive Notes are prepared and ready for delivery,
the Company may prepare and the Trustee shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of definitive Notes but may
have variations that the Company considers appropriate for temporary Notes.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Notes in exchange for temporary Notes. Until such
exchange, temporary Notes shall be entitled to the same rights, benefits and
privileges as definitive Notes.
SECTION 2.12. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall deliver such canceled
Notes to the Company. The Company may not reissue or resell, or issue
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new Notes to replace, Notes that the Company has redeemed or paid, or that have
been delivered to the Trustee for cancellation.
SECTION 2.13. Defaulted Interest.
If the Company defaults on a payment of interest on the Notes,
it shall pay the defaulted interest, plus (to the extent permitted by law) any
interest payable on the defaulted interest, in accordance with the terms hereof,
to the Persons who are Holders on a subsequent special record date, which date
shall be at least five Business Days prior to the payment date. The Company
shall fix such special record date and payment date in a manner satisfactory to
the Trustee. At least 10 days before such special record date, the Company shall
mail to each Holder a notice that states the special record date, the payment
date and the amount of defaulted interest, and interest payable on defaulted
interest, if any, to be paid. The Company may make payment of any defaulted
interest in any other lawful manner not inconsistent with the requirements (if
applicable) of any securities exchange on which the Notes may be listed and,
upon such notice as may be required by such exchange, if, after written notice
given by the Company to the Trustee of the proposed payment pursuant to this
sentence, such manner of payment shall be deemed practicable by the Trustee.
SECTION 2.14. CUSIP Number.
The Company in issuing the Notes may use a "CUSIP" number, and
if so, such CUSIP number shall be included 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 Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee of any such CUSIP number used by the Company in
connection with the issuance of the Notes and of any change in the CUSIP number.
SECTION 2.15. Deposit of Moneys.
Prior to 11:00 a.m.,
New York City time, on each Interest
Payment Date and Maturity Date, the Company shall have deposited with the Paying
Agent in immediately available funds money sufficient to make cash payments, if
any, due on such Interest Payment Date or Maturity Date, as the case may be, in
a timely manner which permits the Trustee to remit payment to the Holders on
such Interest Payment Date or Maturity Date, as the case may be. The principal
and interest on Global Notes shall be payable to the Depository or its nominee,
as the case may be, as the sole registered owner and the sole Holder of the
Global Notes represented thereby. The principal and interest on Physical Notes
shall be payable, either in person or by mail, at the office of the Paying
Agent.
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SECTION 2.16. Book-Entry Provisions for Global Notes.
(a) Rule 144A Notes shall be represented by one or more Notes
in registered, global form without interest coupons (collectively, the
"Restricted Global Note"). Regulation S Notes initially shall be represented by
one or more Notes in registered, global form without interest coupons
(collectively, the "Regulation S Global Note," and, together with the Restricted
Global Note and any other global notes representing Notes, the "Global Notes").
The Global Notes shall bear legends as set forth in Exhibit D. The Global Notes
initially shall (i) be registered in the name of the Depository or the nominee
of such Depository, in each case for credit to an account of an Agent Member
(or, in the case of the Regulation S Global Notes, of Euroclear System
("Euroclear") and Clearstream Banking Luxembourg ("Clearstream")), (ii) be
delivered to the Trustee as custodian for such Depository and (iii) bear legends
as set forth in Exhibit B with respect to Restricted Global Notes and Exhibit C
with respect to Regulation S Global Notes.
Members of, or direct or indirect participants in, the
Depository ("Agent Members") shall have no rights under this Indenture with
respect to any Global Note held on their behalf by the Depository, or the
Trustee as its custodian, or under the Global Notes, 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 Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization (which may be in electronic
form) furnished by the Depository or impair, as between the Depository and its
Agent Members, the operation of customary practices governing the exercise of
the rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfer in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Notes may be transferred
or exchanged for Physical Notes in accordance with the rules and procedures of
the Depository and the provisions of Section 2.17. In addition, a Global Note
shall be exchangeable for Physical Notes if (i) the Depository (x) notifies the
Company that it is unwilling or unable to continue as depository for such Global
Note or (y) has ceased to be a clearing agency registered under the Exchange
Act, and, with respect to (x) or (y), the Company thereupon fails to appoint a
successor depository within 90 days of such notice or cessation, (ii) the
Company, at its option, notifies the Trustee in writing that it elects to cause
the issuance of such Physical Notes in exchange for any or all of the Notes
represented by the Global Notes or (iii) there shall have occurred and be
continuing an Event of Default with respect to the Notes. In all cases, Physical
Notes delivered in exchange for any Global Note or beneficial interests therein
shall be registered in the names, and issued in any approved denominations,
requested by or on behalf of the Depository (in accordance with its customary
procedures).
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(c) In connection with any transfer or exchange of a portion
of the beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the Company
shall execute, and the Trustee shall upon receipt of a written order from the
Company authenticate and make available for delivery, one or more Physical Notes
of like tenor and amount.
(d) In connection with the transfer of Global Notes as an
entirety to beneficial owners pursuant to paragraph (b), the Global Notes shall
be deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depository in writing in exchange for its
beneficial interest in the Global Notes, an equal aggregate principal amount of
Physical Notes of authorized denominations.
(e) Any Physical Note constituting a Restricted Note delivered
in exchange for an interest in a Global Note pursuant to paragraph (b), (c) or
(d) shall, except as otherwise provided by paragraphs (a) and (c) of Section
2.17, bear the Private Placement Legend or, in the case of the Regulation S
Global Note, the legend set forth in Exhibit C, in each case, unless the Company
determine otherwise in compliance with applicable law.
(f) Any beneficial interest in one of the Global Notes that is
transferred to a Person who takes delivery in the form of an interest in another
Global Note shall, upon transfer, cease to be an interest in such Global Note
and become an interest in such other Global Note and, accordingly, shall
thereafter be subject to all transfer restrictions and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(g) The Holder of any Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
SECTION 2.17. Special Transfer Provisions.
(a) Transfers to QIBs. The following provisions shall apply
with respect to the registration or any proposed registration of transfer of a
Note constituting a Restricted Note to a QIB (excluding transfers to Non-U.S.
Persons):
(i) the Registrar shall register the transfer if such transfer
is being made by a proposed transferor who has checked the box provided
for on such Holder's Note stating, or to a transferee who has advised
the Company and the Registrar in writing,
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that it is purchasing the Note for its own account or an account with
respect to which it exercises sole investment discretion and that it
and any such account is a QIB within the meaning of Rule 144A, and is
aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the
Notes to be transferred consist of Physical Notes which after transfer
are to be evidenced by an interest in the Global Note, upon receipt by
the Registrar of instructions given in accordance with the Depository's
and the Registrar's procedures, the Registrar shall reflect on its
books and records the date and an increase in the principal amount of
the Global Note in an amount equal to the principal amount of the
Physical Notes to be transferred, and the Trustee shall cancel the
Physical Notes so transferred.
(b) Transfers to Non-QIB Institutional Accredited Investors
and Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Note constituting a Restricted Note
to any Institutional Accredited Investor which is not a QIB or to any Non-U.S.
Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Note whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is after the
second anniversary of the Issue Date (provided, however, that neither
the Company nor any Affiliate of the Company has held any beneficial
interest in such Note, or portion thereof, at any time on or prior to
the second anniversary of the Issue Date) or (y)(1) in the case of a
transfer to an Institutional Accredited Investor which is not a QIB
(excluding Non-U.S. Persons), the proposed transferee has delivered to
the Registrar a certificate substantially in the form of Exhibit G
hereto and any legal opinions and certifications required thereby or
(2) in the case of a transfer to a Non-U.S. Person, the proposed
transferor has delivered to the Registrar a certificate substantially
in the form of Exhibit E hereto; and
(ii) if the proposed transferor is a Participant holding a
beneficial interest in the Global Note, upon receipt by the Registrar
of (x) the certificate, if any, required by Section 2.17(b)(i) and (y)
written instructions given in accordance with the Depositary's and the
Registrar's procedures; whereupon (a) the Registrar shall reflect on
its books and records the date and (if the transfer does not involve a
transfer of outstanding Physical Notes) a decrease in the principal
amount of such Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be
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transferred and (b) the Company shall execute and the Trustee shall
authenticate and deliver, one or more Physical Notes of like tenor and
amount; and
(iii) in the case of a transfer to a Non-U.S. Person, if the
proposed transferee is a Participant, and the Notes to be transferred
consist of Physical Notes which after transfer are to be evidenced by
an interest in a Regulation S Global Note, upon receipt by the
Registrar of written instructions given in accordance with the
Depositary's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the
principal amount of such Regulation S Global Note in an amount equal to
the principal amount of Physical Notes to be transferred, and the
Trustee shall cancel the Physical Notes so transferred.
(c) Private Placement Legend. Upon the registration of
transfer, exchange or replacement of Notes not bearing the Private Placement
Legend, the Registrar shall deliver Notes that do not bear the Private Placement
Legend. Upon the registration of transfer, exchange or replacement of Notes
bearing the Private Placement Legend, the Registrar shall deliver only Notes
that bear the Private Placement Legend unless (i) there is delivered to the
Registrar 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 Note has been sold pursuant to an effective
registration statement under the Securities Act and the Registrar has received
an Officers' Certificate from the Company to such effect or (iii) the requested
transfer is after the second anniversary of the Issue Date (provided, however,
that neither the Company nor an Affiliate of the Company has held any beneficial
interest in such Note or portion thereof at any time since the Issue Date).
(d) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
(e) Certain Transfers in Connection with and After the
Exchange Offer under the Registration Rights Agreement. Notwithstanding any
other provision of this Indenture:
(i) no Exchange Securities may be exchanged by the Holder
thereof for a Note issued on the Issue Date;
(ii) accrued and unpaid interest on the Notes issued on the
Issue Date being exchanged in the Exchange Offer shall be due and
payable on the next Interest Payment Date for the Exchange Securities
following the Exchange Offer and shall be paid
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to the Holder on the relevant record date of the Exchange Securities
issued in respect of the Note issued on the Issue Date being exchanged;
and
(iii) interest on the Note issued on the Issue Date being
exchanged in the Exchange Offer shall cease to accrue on the date of
completion of the Exchange Offer and interest on the Exchange
Securities to be issued in the Exchange Offer shall accrue from the
date of the completion of the Exchange Offer.
The Registrar shall retain for a period of two years copies of
all letters, notices and other written communications received pursuant to
Section 2.16 or this Section 2.17. 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 notice to the Registrar.
SECTION 2.18. Computation of Interest.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months and actual days elapsed. For the purposes
of the Interest Act (Canada), the yearly rate of interest which is equivalent to
the rate payable hereunder is the rate multiplied by the actual number of days
in the year and divided by 360.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Election To Redeem; Notices to Trustee.
If the Company elects to redeem Notes pursuant to paragraph 5
of the Notes, at least 30 days prior to the Redemption Date (unless a shorter
notice shall be agreed to in writing by the Trustee) but not more than 60 days
before the Redemption Date, the Company shall notify the Trustee in writing of
the Redemption Date, the principal amount of Notes to be redeemed and the
redemption price, and deliver to the Trustee, no later than two Business Days
prior to the redemption date, an Officers' Certificate stating that such
redemption will comply with the conditions contained in paragraph 5 of the
Notes. Notice given to the Trustee pursuant to this Section 3.01 may be
conditioned upon the occurrence of a Change of Control.
SECTION 3.02. Selection by Trustee of Notes To Be Redeemed.
The Trustee shall select the Notes to be redeemed, if the
Notes are then listed on a national securities exchange, in accordance with the
rules of such exchange or, if the Notes are not so listed, either on a pro rata
basis or by lot, or such other method as the Trustee
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in its sole discretion shall deem fair and appropriate; provided that, in the
case of a redemption pursuant to paragraph 5(b) of the Notes, the Trustee shall
select the Notes only on a pro rata basis or on as nearly a pro rata basis as is
practicable (subject to procedures of the Depository). The Trustee shall
promptly notify the Company of the Notes selected for redemption and, in the
case of any Notes selected for partial redemption, the principal amount thereof
to be redeemed. The Trustee may select for redemption portions of the principal
of the Notes that have denominations larger than $1,000. Notes and portions
thereof the Trustee selects shall be redeemed in amounts of $1,000 or whole
multiples of $1,000. For all purposes of this Indenture unless the context
otherwise requires, provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption. In the event
the Company is requested to make a Change of Control Offer or Offer to Purchase
and the amounts available for any such offer is not evenly divisible by $1,000,
the Trustee shall promptly refund to the Company any remaining funds, which in
no event shall exceed $1,000.
SECTION 3.03. Notice of Redemption.
At least 30 days, and no 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 to each Holder of Notes to be redeemed at his or
her last address as the same appears on the registry books maintained by the
Registrar pursuant to Section 2.04.
The notice shall identify the Notes to be redeemed (including
the CUSIP numbers thereof) and shall state:
(1) the Redemption Date;
(2) the appropriate calculation of the redemption price;
(3) if fewer than all outstanding Notes are to be redeemed,
the portion of the principal amount of such Note to be redeemed and
that, after the Redemption Date and upon surrender of such Note, a new
Note or Notes in principal amount equal to the unredeemed portion will
be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(6) that unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on
and after the Redemption Date;
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(7) which subsection of paragraph 5 of the Notes is the
provision of the Notes pursuant to which the redemption is occurring;
and
(8) the aggregate principal amount of Notes that are being
redeemed.
At the Company's written request made at least five Business
Days prior to the date on which notice is to be given, the Trustee shall give
the notice of redemption in the Company's name and at the Company's sole
expense.
SECTION 3.04. Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.03 is
mailed, Notes called for redemption become due and payable on the Redemption
Date and at the redemption price, including any premium, plus interest accrued
to the Redemption Date. Upon surrender to the Paying Agent, such Notes shall be
paid at the redemption price, including any premium, plus interest accrued to
the Redemption Date; provided that if the Redemption Date is after a regular
record date and on or prior to the Interest Payment Date, the accrued interest
shall be payable to the Holder of the redeemed Notes registered on the relevant
record date; and provided, further, that if a Redemption Date is a Legal
Holiday, payment shall be made on the next succeeding Business Day and no
interest shall accrue for the period from such Redemption Date to such
succeeding Business Day. Such notice, if mailed in the manner provided in
Section 3.03, shall be conclusively presumed to have been given whether or not
the Holder receives such notice.
SECTION 3.05. Deposit of Redemption Price.
On or prior to 10:00 A.M.,
New York City time, on each
Redemption Date, the Company shall deposit with the Paying Agent in immediately
available funds money sufficient to pay the redemption price of, including
premium, if any, and accrued interest on all Notes to be redeemed on that date
other than Notes or portions thereof called for redemption on that date which
have been delivered by the Company to the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay
the redemption price of, including premium, if any, and accrued interest on
Notes called for redemption shall have been made available in accordance with
the immediately preceding paragraph, the Notes called for redemption will cease
to accrue interest and the only right of the Holders of such Notes will be to
receive payment of the redemption price of and, subject to the first proviso in
Section 3.04, accrued and unpaid interest on such Notes to the Redemption Date.
If any Note surrendered for redemption shall not be so paid, interest will be
paid, from the Redemption Date until such redemption payment is made, on the
unpaid principal of the Note and any interest not paid on such unpaid principal,
in each case at the rate and in the manner provided in the Notes.
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SECTION 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company
shall execute and the Trustee shall authenticate for the Holder thereof a new
Note equal in principal amount to the unredeemed portion of the original Note in
the name of the Holder upon cancellation of the original Note surrendered,
except that if a Global Note is so surrendered, the Company shall execute and
the Trustee shall authenticate and deliver to the Depository, a new Global Note
in denomination equal to and in exchange for the unredeemed portion of the
principal of the Global Note so surrendered.
SECTION 3.07. Special Mandatory Redemption; Notices to Trustee and Securities
Intermediary.
If the Release has not occurred on or before 5:00 p.m.,
New
York City time, on the Deadline, the Company will, on a Business Day not more
than ten Business Days following the Deadline (the "Special Mandatory Redemption
Date"), notify the Trustee thereof and deliver to the Trustee an Officers'
Certificate stating that such redemption will comply with the conditions
contained in paragraph 6 of the Notes (the "Special Mandatory Redemption") and
setting forth the Special Mandatory Redemption Price applicable to such Special
Mandatory Redemption. Simultaneously with the giving of such notice by the
Company to the Trustee, the Company shall notify the Securities Intermediary
thereof pursuant to Section 3(b) of the Escrow and Pledge Agreement.
SECTION 3.08. Notice of Special Mandatory Redemption to Holders.
Notice of the Special Mandatory Redemption will be promptly
mailed by first class mail by the Company to each Holder of Notes at his or her
last address as the same appears on the registry books maintained by the
Registrar pursuant to Section 2.04.
The notice shall state that all the Notes will be redeemed
(including the CUSIP numbers thereof) and shall state:
(1) the Special Mandatory Redemption Date;
(2) the Special Mandatory Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Notes must be surrendered to the Paying Agent to
collect the redemption price; and
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(5) that unless the Company defaults in making the redemption
payment, interest on the Notes ceases to accrue on and after the
Special Mandatory Redemption Date.
SECTION 3.09. Effect of Notice of Special Mandatory Redemption.
Once the notice of redemption described in Section 3.08 is
mailed, the Notes will become due and payable on the Special Mandatory
Redemption Date at the Special Mandatory Redemption Price. Upon surrender to the
Paying Agent, the Notes shall be paid at the Special Mandatory Redemption Price.
SECTION 3.10. Deposit of Special Mandatory Redemption Price.
On or prior to 10:00 A.M.,
New York City time, on the Special
Mandatory Redemption Date, the Company shall direct the Securities Intermediary,
pursuant to Section 3(b) of the Escrow and Pledge Agreement, to deposit with the
Paying Agent the applicable Special Mandatory Redemption Price.
On and after the Special Mandatory Redemption Date, if money
sufficient to pay the applicable Special Mandatory Redemption Price shall have
been made available in accordance with the immediately preceding paragraph, the
Notes will cease to accrue interest and the only right of the Holders of the
Notes will be to receive payment of the Special Mandatory Redemption Price. If
any Note surrendered for redemption shall not be so paid, interest will be paid,
from the Special Mandatory Redemption Date until such redemption payment is
made, on the unpaid principal of the Note and any interest not paid on such
unpaid principal, in each case at the rate and in the manner provided in the
Notes.
SECTION 3.11. Other Mandatory Redemption.
The Company is not required to make mandatory redemption or
sinking fund payments with respect to the Notes, other than a Special Mandatory
Redemption.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
The Company shall pay the principal of and interest on the
Notes on the dates and in the manner provided in the Notes and this Indenture.
An installment of principal or
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interest shall be considered paid on the date it is due if the Trustee or Paying
Agent holds on that date money designated for and sufficient to pay such
installment.
The Company shall pay interest on overdue principal (including
post-petition interest in a proceeding under any Bankruptcy Law), and overdue
interest, to the extent lawful, at the rate specified in the Notes.
SECTION 4.02. Maintenance of Office or Agency.
(a) The Company shall maintain an office or agency (which may
be an office of the Trustee or an affiliate of the Trustee or Registrar) where
Notes may be presented or surrendered for payment, where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee and the Company and each Guarantor hereby appoint the
Trustee as their agent to receive all such presentations, surrenders, notices
and demands.
(b) The Company may also from time to time designate one or
more other offices or agencies where the Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, the City of
New York for such purposes. The Company
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
(c) The Company hereby designates the Corporate Trust Office
of the Trustee as one such office or agency of the Company in accordance with
Section 2.04.
SECTION 4.03. Legal Existence.
Subject to Article Five, the Company and the Guarantors shall
do or cause to be done all things necessary to preserve and keep in full force
and effect (i) their legal existence, and the corporate, partnership or other
existence of each Restricted Subsidiary, in accordance with the respective
organizational documents (as the same may be amended from time to time) of each
Restricted Subsidiary and the material rights (charter and statutory), and
franchises of the Company, the Guarantors and the Restricted Subsidiaries;
provided that the Company and the Guarantors shall not be required to preserve
any such right, franchise, or the corporate, partnership or other existence of
any of its Restricted Subsidiaries if the Company
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and the Guarantors, as the case may be, in good faith shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company, the Guarantors and their Restricted Subsidiaries taken as a whole.
SECTION 4.04. Maintenance of Properties; Insurance; Compliance with Law.
(a) The Company and the Guarantors shall, and shall cause each
of their Restricted Subsidiaries to, at all times cause all material properties
used or useful in the conduct of their respective businesses to be maintained
and kept in good 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 and improvements
thereto; provided, however, that nothing in this Section 4.04(a) shall prevent
the Company and the Guarantors or any of their Restricted Subsidiaries from
discontinuing the operation and maintenance of any of such material properties
if such discontinuance is, in the reasonable judgment of the Company and Xxxxx,
desirable in the conduct of the business of the Company, the Guarantors and
their Subsidiaries taken as a whole and not adverse in any material respect to
the Holders.
(b) The Company and the Guarantors shall, and shall cause each
of their Restricted Subsidiaries to, keep at all times all of their material
properties which are of an insurable nature insured against such loss or damage
with insurers believed by the Company and Xxxxx to be responsible to the extent
that Property of a similar character is usually so insured by corporations
similarly situated and owning like Properties in accordance with good business
practice.
(c) The Company and the Guarantors shall, and shall cause each
of their Restricted Subsidiaries to comply with all statutes, laws, ordinances
or government rules and regulations to which they are subject, non-compliance
with which would materially adversely affect the business, financial condition
or results of operations of the Company, the Guarantors and their Restricted
Subsidiaries taken as a whole.
SECTION 4.05. Waiver of Stay, Extension or Usury Laws.
The Company and each of the Guarantors covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon, or
plead (as a defense or otherwise) 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
which may affect the covenants or the performance of this Indenture; and (to the
extent that they may lawfully do so) each of the Company and the Guarantors
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
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will suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 4.06. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company, commencing with the Company's
fiscal year ending December 31, 2003, an Officers' Certificate, one of the
signers of which shall be the principal executive officer, principal financial
officer or principal accounting officer of the Company, stating whether or not
to the best knowledge of the signers thereof the Company, any Restricted
Subsidiary or any Guarantor is in default in the performance and observance of
any of the terms, provisions and conditions of Section 5.01 or Sections 4.01 to
4.20, inclusive, and if the Company shall be in default, specifying all such
defaults, the nature and status thereof of which they may have knowledge and
what action the Company and the Guarantors are taking or propose to take with
respect thereto. Such determination shall be made without regard to notice
requirements or periods of grace.
(b) The Company shall deliver to the Trustee, as soon as
possible and in any event no later than 10 Business Days after the Company
becomes aware of the occurrence of a Default or an Event of Default or an event
which, with notice or the lapse of time or both, would constitute a Default or
Event of Default, an Officers' Certificate setting forth the details of such
Default or Event of Default, and the action which the Company is taking or
proposes to take with respect to such Default or Event of Default.
(c) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement by the Company's
independent public accountants stating whether, in connection with their audit
of Xxxxx'x financial statements, any event which would constitute an Event of
Default as defined herein insofar as they relate to accounting matters has come
to their attention and, if such an Event of Default has come to their attention,
specifying the nature thereof.
SECTION 4.07. Payment of Taxes and Other Claims.
The Company and the Guarantors shall, and shall cause each of
its Restricted Subsidiaries to, pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
of its Subsidiaries or upon the income, profits or Property of the Company or
any of its Subsidiaries, and (2) all material lawful claims for labor, materials
and supplies which, if unpaid, might by law become a lien upon the Property of
the Company or any of its 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.
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SECTION 4.08. Repurchase at the Option of Holders upon Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder of
Notes will have the right to require the Company to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of such Holder's Notes
pursuant to the offer described below (the "Change of Control Offer") at a
purchase price equal to 101% of the aggregate principal amount thereof, plus
accrued and unpaid interest, if any, to the purchase date (subject to the right
of Holders of record on the relevant record date to receive interest due on the
relevant interest payment date) (the "Change of Control Purchase Price");
provided, however, that notwithstanding the occurrence of a Change of Control,
the Company shall not be obligated to purchase the Notes pursuant to this
Section 4.08 in the event that it has mailed the notice to exercise its right to
redeem all the Notes under Section 3.01 at any time prior to the requirement to
consummate the Change of Control and redeems the Notes in accordance with such
notice.
(b) Within 30 days following any Change of Control, or, at the
Company's option, prior to the consummation of such Change of Control but after
it is publicly announced, the Company shall send, by first-class mail, with a
copy to the Trustee, to each Holder of Notes, at such Holder's address appearing
in the Note register, a notice stating:
(1) that a Change of Control has occurred or will occur and a
Change of Control Offer is being made pursuant to Section 4.08 and that
all Notes timely tendered and not withdrawn will be accepted for
payment;
(2) the Change of Control Purchase Price and the purchase date
(the "Change of Control Payment Date"), which shall be, subject to any
contrary requirements of applicable law, a Business Day and a point in
time occurring after the consummation of the Change of Control and not
later than 60 days from the date such notice is mailed;
(3) the circumstances and relevant facts regarding the Change
of Control;
(4) if the notice is mailed prior to a Change of Control, that
the Change of Control Offer is conditioned on the Change of Control
occurring and Notes will not be accepted for payment unless and until
the Change of Control is consummated; and
(5) the procedures that Holders of Notes must follow in order
to tender their Notes (or portions thereof) for payment, and the
procedures that Holders of Notes must follow in order to withdraw an
election to tender Notes (or portions thereof) for payment.
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Holders electing to have a Note purchased shall be required to
surrender the Note, with an appropriate form duly completed, to the Company or
its agent at the address specified in the notice at least three Business Days
prior to the Change of Control Payment Date. Holders shall be entitled to
withdraw their election if the Trustee or the Company receives, not later than
one Business Day prior to the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note that was delivered for purchase by the Holder and a
statement that such Holder is withdrawing its election to have such Note
purchased.
(c) On or prior to the Change of Control Payment Date, the
Company shall irrevocably deposit with the Trustee or with the Paying Agent (or,
if the Company or any of its Subsidiaries is acting as the Paying Agent,
segregate and hold in trust) in cash an amount equal to the Change of Control
Purchase Price payable to the Holders entitled thereto, to be held for payment
in accordance with the provisions of this Section 4.08(c). On the Change of
Control Payment Date, the Company or its agent shall deliver to the Trustee the
Notes or portions thereof that have been properly tendered to and are to be
accepted by the Company for payment.
(d) The Trustee or the Paying Agent shall, on the Change of
Control Payment Date, mail or deliver payment to each tendering Holder of the
Change of Control Purchase Price. In the event that the aggregate Change of
Control Purchase Price is less than the amount delivered by the Company to the
Trustee or the Paying Agent, the Trustee or the Paying Agent, as the case may
be, shall deliver the excess to the Company immediately after the Change of
Control Payment Date.
(e) Notwithstanding the foregoing, the Company shall not be
required to make a Change of Control Offer upon a Change of Control if a third
party makes an offer to purchase (an "Alternate Offer"), in the manner, at the
times and otherwise in compliance with the requirements set forth in this
Section 4.08 applicable to a Change of Control made by the Company, any and all
Notes properly tendered and has purchased all Notes properly tendered and not
withdrawn in accordance with the terms of such Alternate Offer.
(f) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other applicable
securities laws or regulations in connection with the repurchase of Notes
pursuant to a Change of Control Offer, including any applicable securities laws
of the United States. To the extent that the provisions of any securities laws
or regulations conflict with the provisions of this Section 4.08, the Company
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section 4.08 by virtue of
such compliance with these securities laws or regulations.
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SECTION 4.09. Limitation on Debt.
(a) Notwithstanding anything contained in Section 4.09(b),
prior to the Release, the Company will not Incur any Debt (including Acquired
Debt), except for the Notes.
(b) From and after the Release, the Company and the Guarantors
shall not, and shall not permit any Restricted Subsidiary to, Incur any Debt;
provided, however, that the Company or any Guarantor may Incur Debt and the
Company or any Guarantor may Incur Acquired Debt if the Company's Fixed Charge
Coverage Ratio for the most recently ended four fiscal quarters for which
financial statements have been filed with the Commission pursuant to Section
4.18 immediately preceding the date on which such Debt is Incurred would have
been at least 2.00 to 1.00, determined on a pro forma basis (including pro forma
application of the net proceeds therefrom for such four-quarter period), as if
the additional Debt had been Incurred at the beginning of such four-quarter
period, with any letters of credit and bankers' acceptances being deemed to have
an aggregate principal amount of Debt equal to the maximum amount available
thereunder and with any revolving credit facility being deemed to be utilized
only to the extent of amounts outstanding thereunder.
(c) Notwithstanding the immediately preceding paragraph, any
or all of the following Debt (collectively, "Permitted Debt") may be Incurred:
(1) Debt of the Company or any Guarantor under a Credit
Facility; provided that the aggregate principal amount of all such Debt
under Credit Facilities shall not exceed $950 million at any time
outstanding less (i) the amount of any permanent mandatory repayments
of principal of term loans made under a Credit Facility which was
Incurred under this clause (1) and (ii) the amount of any permanent
mandatory repayments of principal of revolving loans made under a
Credit Facility which was Incurred under this clause (1) which are
accompanied by a corresponding permanent commitment reduction, in each
case which are made with Net Available Cash from Asset Sales as
required as a result of a sale of assets;
(2) the Notes (excluding any Additional Notes) and related
Guarantees and any Notes and related Guarantees issued in exchange for
the Notes and related Guarantees pursuant to the Registration Rights
Agreement;
(3) Debt of the Company or any Guarantor in respect of Capital
Lease Obligations and Purchase Money Debt; provided that:
(A) the aggregate principal amount of such Debt
secured thereby does not exceed the Fair Market Value (on the
date of the Incurrence thereof) of the Property acquired,
constructed or leased, and
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(B) the aggregate principal amount of all Debt
Incurred and then outstanding pursuant to this clause (3)
(together with all Permitted Refinancing Debt Incurred and
then outstanding in respect of Debt previously Incurred
pursuant to this clause (3)) does not exceed $100 million;
(4) Debt (1) of the Company owing to and held by Xxxxx or any
Restricted Subsidiary, (2) of a Restricted Subsidiary owing to and held
by Xxxxx, the Company or any other Restricted Subsidiary and (3) of
Xxxxx owing to and held by any Restricted Subsidiary; provided,
however, that any subsequent issue or transfer of Capital Stock or
other event that results in any such Restricted Subsidiary ceasing to
be a Restricted Subsidiary or any subsequent transfer of any such Debt
(except to Xxxxx, the Company or a Restricted Subsidiary) shall be
deemed, in each case, to constitute the Incurrence of such Debt by the
issuer thereof not permitted by this clause (4);
(5) Debt under Interest Rate Agreements entered into by the
Company, a Guarantor or a Restricted Subsidiary in the ordinary course
of their financial management and not for speculative purposes;
(6) Debt under Currency Exchange Protection Agreements entered
into by the Company, a Guarantor or a Restricted Subsidiary in the
ordinary course of their financial management and not for speculative
purposes;
(7) Debt under Commodity Price Protection Agreements entered
into by the Company, a Guarantor or a Restricted Subsidiary in the
ordinary course of their financial management and not for speculative
purposes;
(8) Debt of the Company, a Guarantor or any Restricted
Subsidiary in connection with (A) one or more letters of credit issued
by any of them in the ordinary course of business with respect to trade
payables relating to the purchase of materials by such Persons and (B)
other letters of credit, surety, performance, appeal or similar bonds,
banker's acceptances, completion guarantees or similar instruments
issued in the ordinary course of business of the Company, a Guarantor
or a Restricted Subsidiary, including letters of credit or similar
instruments pursuant to self-insurance and workers' compensation
obligations; provided that upon the drawing of such letters of credit
or other instrument, such obligations are reimbursed within 30 days
following such drawing; provided, further, that with respect to clauses
(A) and (B) above, such Debt is not in connection with the borrowing of
money or the obtaining of advances or credit;
(9) Debt of the Company, a Guarantor or any Restricted
Subsidiary arising from the honoring by a bank or other financial
institution of a check, draft or similar
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instrument inadvertently drawn against insufficient funds; provided
that such Debt remains outstanding for five Business Days or less;
(10) Debt of the Company, a Guarantor or any Restricted
Subsidiary arising from agreements for indemnification and purchase
price adjustment obligations and earn-outs or other similar
obligations, in each case, Incurred or assumed in connection with the
acquisition or disposition of any assets, including Capital Stock and
including by way of merger or consolidation; provided that the maximum
assumable liability in respect of all such obligations shall at no time
exceed the gross proceeds actually received by the Company, a Guarantor
or any Restricted Subsidiary, including the Fair Market Value of
non-cash proceeds;
(11) Debt Incurred by a Securitization Entity in connection
with a Qualified Securitization Transaction; provided, however, that in
the event such Securitization Entity ceases to qualify as a
Securitization Entity, such Debt will be deemed, in each case, to be
Incurred at such time;
(12) Debt of the Company or a Guarantor consisting of a
Guarantee of or a Lien securing, Debt of the Company or a Guarantor;
provided that such Debt constitutes Debt that is permitted to be
Incurred pursuant to this Section 4.09, but subject to compliance with
the other provisions described under Article Four;
(13) Debt in respect of netting services, overdraft protection
and otherwise in connection with deposit accounts; provided that such
Debt remains outstanding for five Business Days or less;
(14) Debt of the Company, a Guarantor or any Restricted
Subsidiary (other than Xxxxxxx or its Subsidiaries) that was
outstanding on the Issue Date not otherwise described in clauses (1)
through (13) above; provided that from and after the Release, this
clause (14) shall not include Debt under the Existing Xxxxx Credit
Agreement;
(15) Guarantees in the ordinary course of business of the
obligations of suppliers, customers, franchisers and licensees;
(16) Permitted Refinancing Debt; and
(17) Debt of the Company, a Guarantor or any Restricted
Subsidiary or the issuance of Disqualified Stock in a principal amount
or liquidation value, as applicable, outstanding at any one time not to
exceed $200 million in the aggregate for all such Debt and Disqualified
Stock (which Debt may, but need not, be Incurred, in whole or in part,
under a Credit Facility).
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For the purposes of determining compliance with this Section
4.09, in the event that an item of Debt meets the criteria of more than one of
the types of Debt permitted by this covenant or is entitled to be Incurred
pursuant to Section 4.09(b), the Company in its sole discretion shall be
permitted to classify on the date of its Incurrence, or later reclassify, all or
a portion of such item of Debt in any manner that complies with this Section
4.09; provided that all outstanding Debt under the Credit Agreement at the time
of the Release shall be deemed to have been Incurred pursuant to clause (c)(i)
of this Section 4.09.
Debt permitted by this Section 4.09 need not be permitted
solely by reference to one provision permitting such Debt but may be permitted
in part by one such provision and in part by one or more other provisions of
this Section 4.09 permitting such Debt.
For the purposes of determining any particular amount of Debt
under this Section 4.09, (a) Guarantees, Liens, obligations with respect to
letters of credit and other obligations supporting Debt otherwise included in
the determination of a particular amount will not be included and (b) any Liens
granted to the Holders of the Notes that are permitted in Section 4.11 will not
be treated as Debt.
For purposes of determining compliance with any
dollar-denominated restriction on the Incurrence of Debt, with respect to any
Debt which is denominated in a foreign currency, the dollar-equivalent principal
amount of such Debt Incurred pursuant thereto shall be calculated based on the
relevant currency exchange rate in effect on the date that such Debt was
incurred, and any such foreign-denominated Debt may be refinanced or replaced or
subsequently refinanced or replaced in an amount equal to the dollar-equivalent
principal amount of such Debt on the date of such refinancing or replacement
whether or not such amount is greater or less than the dollar-equivalent
principal amount of the Debt on the date of initial Incurrence.
If obligations in respect of letters of credit are Incurred
pursuant to the Credit Facility and are being treated as Incurred pursuant to
clause (1) of the third paragraph of this Section 4.09 and the letters of credit
relate to other Debt, then such other Debt shall be deemed not Incurred.
Notwithstanding any other provision of this Section 4.09,
neither the Company nor any Guarantor shall Incur any Debt that is expressly
subordinated to any other Debt of the Company or such Guarantor unless such Debt
is expressly subordinated in right of payment to the Notes or the Notes
Guarantee of such Guarantor to the same or a greater extent than such Debt is
subordinated to such other Debt.
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SECTION 4.10. Limitation on Restricted Payments.
(a) Notwithstanding anything contained in the two succeeding
paragraphs, prior to the Release, the Company shall not make any Restricted
Payments or any Permitted Investments, except to the extent necessary to
consummate the Release or the Special Mandatory Redemption and the transactions
contemplated by the Escrow and Pledge Agreement (including any Investments
deemed to exist by virtue of the Escrow and Pledge Agreement or the payment of
fees and expenses related to the offering of the Notes).
(b) From and after the Release, neither the Company nor any
Guarantor shall make, and none of them shall permit any Restricted Subsidiary to
make, any Restricted Payment if at the time of, and after giving effect to, such
proposed Restricted Payment,
(1) a Default or Event of Default shall have occurred and be
continuing,
(2) the Company could not Incur at least $1.00 of additional
Debt pursuant to Section 4.09(b) or
(3) the aggregate amount of such Restricted Payment and all
other Restricted Payments declared or made since the Issue Date (the
amount of any Restricted Payment, if made other than in cash, to be
based upon Fair Market Value) would exceed an amount equal to the sum
of:
(i) 50% of the aggregate amount of Combined
Consolidated Net Income accrued on a cumulative basis during
the period (treated as one accounting period) from the first
day of the fiscal quarter in which the Issue Date occurs to
the end of the most recent fiscal quarter ended prior to the
date of such proposed Restricted Payment for which financial
statements are available pursuant to Section 4.18 (or if the
aggregate amount of Combined Consolidated Net Income for such
period shall be a deficit, minus 100% of such deficit), plus
(ii) 100% of Capital Stock Sale Proceeds and cash
capital contributions after the Release by a Person who is not
the Company, a Guarantor or a Restricted Subsidiary of the
Company or a Guarantor, plus (without duplication)
(iii) the sum of:
(A) the aggregate net cash proceeds received
by the Company, a Guarantor or a Restricted
Subsidiary from the issuance or sale after the
Release of convertible or exchangeable Debt or
Disqualified
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Stock that has been converted into or exchanged for
its Capital Stock (other than Disqualified Stock),
and
(B) the aggregate amount by which Debt
(other than Subordinated Obligations) of the Company,
the Guarantors or the Restricted Subsidiaries is
reduced on its consolidated balance sheet on or after
the Issue Date upon the conversion or exchange of any
Debt issued or sold on or prior to the Issue Date
that is convertible or exchangeable for Capital Stock
(other than Disqualified Stock), together with, in
the cases of both clauses (A) and (B), the aggregate
net cash proceeds received by the Company, a
Guarantor or a Restricted Subsidiary at the time of
such conversion or exchange, but excluding, in the
case of clause (A) or (B): (x) any such Debt issued
or sold to the Company, a Guarantor or a Restricted
Subsidiary or an employee stock ownership plan or
trust established by the Company, a Guarantor or a
Restricted Subsidiary for the benefit of its
employees and (y) the aggregate amount of any cash or
other Property distributed by the Company, a
Guarantor or any Restricted Subsidiary upon any such
conversion or exchange, plus (without duplication)
(iv) an amount equal to the sum of:
(A) the net reduction in Investments in any
Person other than the Company, a Guarantor or a
Restricted Subsidiary resulting from dividends,
repayments of loans or advances or other transfers of
Property or any other disposition or repayment of
such Investments, in each case to the Company, a
Guarantor or any Restricted Subsidiary from any
Person (other than the Company, a Guarantor or a
Restricted Subsidiary), less the cost of the
disposition of such Investments, and
(B) the Fair Market Value of the Investment
of the Company, the Guarantors and Restricted
Subsidiaries in an Unrestricted Subsidiary at the
time such Unrestricted Subsidiary is designated a
Restricted Subsidiary;
provided, however, that the foregoing sum described in Section
4.10(b)(3)(iv) shall not exceed the amount of Investments
previously made (and treated as a Restricted Payment) by the
Company, a Guarantor or any Restricted Subsidiary in such
Person; plus
(v) $75 million.
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(c) Notwithstanding the foregoing limitation, the Company or
any Guarantor may:
(1) pay dividends on its Capital Stock within 60 days of the
declaration thereof if, on said declaration date, such dividends could
have been paid in compliance with this Indenture (for the avoidance of
doubt, such dividend shall be included in the calculation of the amount
of Restricted Payments only at the time such dividend is paid);
(2) purchase, repurchase, redeem, legally defease, acquire or
retire for value its Capital Stock or options, warrants or other rights
to acquire such Capital Stock or Subordinated Obligations in exchange
for, or out of the proceeds of the substantially concurrent sale of,
its Capital Stock (other than Disqualified Stock) or options, warrants
or other rights to acquire such Capital Stock (other than any such
Capital Stock (or options, warrants or other rights to acquire such
Capital Stock) issued or sold to a Restricted Subsidiary or an employee
stock ownership plan or trust established by the Company, a Guarantor
or any such Restricted Subsidiary for the benefit of its employees and
except to the extent that any purchase made pursuant to such issuance
or sale is financed by the Company, a Guarantor or any Restricted
Subsidiary) or a capital contribution to the Company or a Guarantor
from a person other than the Company, a Guarantor or a Restricted
Subsidiary; provided, however, that such purchase, repurchase,
redemption, legal defeasance, acquisition or retirement shall not be
included in the calculation of the amount of Restricted Payments and
the Capital Stock Sale Proceeds from such exchange or sale shall not be
included in the calculation pursuant to Section 4.10(b)(3)(ii) above;
(3) purchase, repurchase, redeem, legally defease, acquire or
retire for value any Subordinated Obligations in exchange for or out of
the proceeds of the substantially concurrent sale of its Capital Stock
(other than Disqualified Stock) or options, warrants or other rights to
acquire such Capital Stock (other than any such Capital Stock (or
options, warrants or other rights to acquire such Capital Stock) issued
or sold to a Restricted Subsidiary or an employee stock ownership plan
or trust established by the Company, a Guarantor or any such Restricted
Subsidiary for the benefit of its employees and except to the extent
that any purchase made pursuant to such issuance or sale is financed by
the Company, a Guarantor or any Restricted Subsidiary) or a capital
contribution to the Company or a Guarantor from a Person other than the
Company, a Guarantor or a Restricted Subsidiary; provided that such
purchase, repurchase, redemption, legal defeasance, acquisition or
retirement shall not be included in the calculation of the amount of
Restricted Payments and the Capital Stock Sale Proceeds from such
exchange or sale shall not be included in the calculation pursuant to
Section 4.10(b)(3)(ii) above;
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(4) purchase, repurchase, redeem, legally defease, acquire or
retire for value any Subordinated Obligations of the Company or any
Guarantor in exchange for, or out of the proceeds of the substantially
concurrent sale of, Permitted Refinancing Debt; provided that such
purchase, repurchase, redemption, legal defeasance, acquisition or
retirement shall not be included in the calculation of the amount of
Restricted Payments;
(5) so long as no Default has occurred and is continuing,
repurchase or otherwise acquire shares of Capital Stock of Xxxxx;
provided that the aggregate amount of all such repurchases and other
acquisitions shall not exceed $30 million in any calendar year (any
such amounts not used in a calendar year shall be available for use in
any subsequent year) and $120 million in the aggregate; provided,
further, that such repurchase or other acquisition shall be included in
the calculation of the amount of Restricted Payments;
(6) so long as no Default has occurred and is continuing,
repurchase or otherwise acquire shares of, or options to purchase
shares of, Capital Stock of the Company or a Guarantor from their
employees, former employees, directors or former directors, consultants
or former consultants (or permitted transferees of such employees,
former employees, directors or former directors) pursuant to the terms
of agreements (including employment agreements) or plans (or amendments
thereto) approved by the Board of Directors of Xxxxx under which such
individuals purchase or sell, or are granted the option to purchase or
sell, shares of such Capital Stock; provided that the aggregate amount
of all such repurchases and other acquisitions (other than such
repurchases or other acquisitions made in connection with the
Acquisition, which shall not be limited) shall not exceed $10 million
in any calendar year (any such amounts not used in a calendar year
shall be available for use in any subsequent year); provided, further,
that such repurchase or other acquisition shall be excluded from the
calculation of the amount of Restricted Payments and the Capital Stock
Sale Proceeds from such sales shall not be included in the calculation
pursuant to Section 4.10(b)(3)(ii) or (2) above;
(7) make cash payments in lieu of issuance of fractional
shares in connection with the exercise of warrants, options or other
securities convertible into or exchangeable for equity interests of the
Company or a Guarantor (for the avoidance of doubt, such payments shall
not be included in the calculation of Restricted Payments);
(8) repurchase Capital Stock to the extent such repurchase is
deemed to occur upon a cashless exercise of stock options; provided
that all such repurchases shall not be included in the calculation of
Restricted Payments and no proceeds in respect of
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the issuance of Capital Stock shall be deemed to have been received for
the purposes of Section 4.10(b)(3)(ii) above;
(9) repurchase or redeem preferred stock purchase rights
issued in connection with any shareholder rights plan of Xxxxx;
(10) distribute the Escrowed Property and funds held pursuant
to the Credit Facility Escrow Arrangements to the Company on the date
of the Release, to the extent used in consummating the Acquisition and
the related refinancing transactions;
(11) so long as no Default or Event of Default shall have
occurred and be continuing, repurchase any Subordinated Obligations or
Disqualified Stock of the Company or a Guarantor at a purchase price
not greater than 101% of the principal amount or liquidation preference
of such Subordinated Obligation or Disqualified Stock in the event of a
Change of Control pursuant to a provision similar to Section 4.08 in
the documents governing such Subordinated Obligation or Disqualified
Stock; provided that prior to consummating any such repurchase, the
Company has made the Change of Control Offer required by this Indenture
and has repurchased all notes validly tendered for payment in
connection with such Change of Control Offer; provided, further, that
such payments shall be included in the calculation of Restricted
Payments;
(12) so long as no Default or Event of Default shall have
occurred and be continuing, following an Asset Sale, to the extent
permitted by Section 4.12, and using the Net Available Cash generated
from such Asset Sale, repurchase any Subordinated Obligation or
Disqualified Stock of the Company or a Guarantor at a purchase price
not greater than 101% of the principal amount or liquidation preference
of such Subordinated Obligation or Disqualified Stock pursuant to a
provision similar to Section 4.12 in the documents governing such
Subordinated Obligation or Disqualified Stock; provided that prior to
consummating any such repurchase, the Company has made the Prepayment
Offer required by this Indenture and has repurchased all Notes validly
tendered for payment in connection with such Prepayment Offer;
provided, further, that such payments shall be included in the
calculation of Restricted Payments; and
(13) make any other Restricted Payment which, together with
all other Restricted Payments made pursuant to this Section 4.10(c)(13)
since the Issue Date, does not exceed $50 million; provided that no
Default or Event of Default shall have occurred and be continuing
immediately after making such Restricted Payment; provided, further,
that such payments shall be included in the calculation of Restricted
Payments.
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The amount of any non-cash Restricted Payment shall be deemed
to be equal to the Fair Market Value thereof at the date of making such
Restricted Payment.
SECTION 4.11. Limitation on Liens.
Prior to the Release, the Company shall not, and shall not
permit any Restricted Subsidiary to, Incur or suffer to exist, any Lien upon any
of its Property (including Capital Stock of a Restricted Subsidiary and
intercompany notes), whether owned at the Issue Date or thereafter acquired, or
any interest therein or any income or profits therefrom that secures any
obligation, except the Lien of the Trustee on the Escrowed Property and the Lien
under the Credit Facility Escrow Arrangements.
From and after the Release, neither the Company nor any
Guarantor shall, and none of them shall permit any Restricted Subsidiary to,
Incur or suffer to exist any Lien (other than Permitted Liens) upon any of its
Property (including Capital Stock of a Restricted Subsidiary and intercompany
notes), whether owned at the Issue Date or thereafter acquired, or any interest
therein or any income or profits therefrom, unless it has made or will make
effective provision whereby the Notes or the relevant Notes Guarantee will be
secured by such Lien equally and ratably with (or prior to) all other
obligations of the Company, a Guarantor or any Restricted Subsidiary secured by
such Lien until such time as such obligations are no longer secured by a Lien.
The Lien on the Escrowed Property created for the benefit of
the Holders of the Notes shall provide by its terms that any such Lien will be
automatically and unconditionally released and discharged upon the Release.
SECTION 4.12. Limitation on Asset Sales.
(a) Prior to the Release, the Company shall not consummate an
Asset Sale except to the extent necessary to consummate the Release, the Special
Mandatory Redemption and the transactions contemplated by the Escrow and Pledge
Agreement. From and after the Release, neither the Company nor any Guarantor
shall, and none of them shall permit any Restricted Subsidiary to, consummate
any Asset Sale unless:
(1) the Company, such Guarantor or such Restricted Subsidiary
receives consideration at least equal to the Fair Market Value of the
Property subject to such Asset Sale;
(2) at least 75% of the consideration paid to the Company,
such Guarantor or such Restricted Subsidiary in connection with such
Asset Sale is in the form of (a) cash or Temporary Cash Investments;
(b) the assumption by the purchaser of liabilities of the Company, a
Guarantor or any Restricted Subsidiary (other than liabilities
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that are by their terms subordinated to the Notes or any Notes
Guarantee of such Guarantor) as a result of which the Company, the
Guarantors and the Restricted Subsidiaries are no longer obligated with
respect to such liabilities; (c) any securities, notes or other
obligations received by the Company or any such Guarantor or Restricted
Subsidiary from such transferee that are converted into cash (to the
extent of the cash received) within 60 days after receipt; (d) Property
to be used by the Company, a Guarantor or a Restricted Subsidiary in a
Related Business or Capital Stock of an entity engaged in a Related
Business so long as the receipt of such Capital Stock is a Permitted
Investment or otherwise complies with Section 4.10; or (e) a
combination of the consideration specified in clauses (a) through (d);
and
(3) the Company delivers an Officers' Certificate to the
Trustee certifying that such Asset Sale complies with the foregoing
clauses (1) and (2).
(b) The Net Available Cash (or any portion thereof) from Asset
Sales may be applied by the Company, a Guarantor or a Restricted Subsidiary, to
the extent the Company or such Guarantor or Restricted Subsidiary elects (or is
required by the terms of any Debt):
(1) to permanently prepay or permanently repay any (i) Debt
under any Credit Facility, (ii) Debt which shall have been secured by
the assets sold in the relevant Asset Sale and (iii) Debt of a
Restricted Subsidiary that is not a Guarantor; and/or
(2) to reinvest in Additional Assets (including by means of an
Investment in Additional Assets with Net Available Cash received by the
Company, a Guarantor or a Restricted Subsidiary).
(c) Pending the final application of the Net Available Cash
(or any portion thereof), the Company, a Guarantor or a Restricted Subsidiary
may temporarily repay Debt under any Credit Facility or otherwise invest such
Net Available Cash in Temporary Cash Investments.
(d) Any Net Available Cash from an Asset Sale not applied in
accordance with Section 4.12(b) within 365 days from the date of the receipt of
such Net Available Cash shall constitute "Excess Proceeds."
(e) When the aggregate amount of Excess Proceeds exceeds $25
million, the Company will be required to make an offer to purchase (the
"Prepayment Offer") the Notes and any other Debt of the Company outstanding on
the date of the Prepayment Offer that is pari passu in right of payment with the
Notes or a Notes Guarantee and subject to terms and conditions in respect of
Asset Sales similar in all material respects to this Section 4.12 and requiring
the Company to make an offer to purchase such Debt at substantially the same
time as the Prepayment Offer, which offer shall be in the amount of the
Allocable
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Excess Proceeds, on a pro rata basis according to principal amount, at a
purchase price equal to 100% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the purchase date (subject to the right of Holders
of record on the relevant record date to receive interest due on the relevant
interest payment date), in accordance with the procedures (including prorating
in the event of over subscription) set forth herein. To the extent that any
portion of the amount of Net Available Cash remains after compliance with the
preceding sentence, the Company, such Guarantor or such Restricted Subsidiary
may use such remaining amount for any purpose not restricted by this Indenture
and the amount of Excess Proceeds will be reset to zero.
The term "Allocable Excess Proceeds" will mean the product of:
(a) the Excess Proceeds and
(b) a fraction,
(1) the numerator of which is the aggregate principal
amount of the Notes outstanding on the date of the Prepayment
Offer, together with any accrued and unpaid interest, and
(2) the denominator of which is the sum of (A) the
aggregate principal amount of the Notes outstanding on the
date of the Prepayment Offer, together with any accrued and
unpaid interest, and (B) the aggregate principal amount of
other Debt of the Company or a Guarantor outstanding on the
date of the Prepayment Offer that is pari passu in right of
payment with the Notes or a Notes Guarantee, as the case may
be, and subject to terms and conditions in respect of Asset
Sales similar in all material respects to this Section 4.12
and requiring the Company or a Guarantor to make an offer to
purchase such Debt at substantially the same time as the
Prepayment Offer (subject to proration in the event that such
amount is less than the aggregate offer price of all Notes
tendered).
(f) Within 15 Business Days after the Company is obligated to
make a Prepayment Offer as described in Section 4.12(d), the Company shall send
a written notice, by first-class mail, to the Holders of Notes, accompanied by
such information regarding the Company and the Guarantors as the Company in good
faith believes will enable such Holders to make an informed decision with
respect to such Prepayment Offer. Such notice shall state, among other things,
the purchase price and the purchase date (the "Purchase Date"), which shall be,
subject to any contrary requirements of applicable law, a Business Day no
earlier than 30 days nor later than 60 days from the date such notice is mailed.
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(g) Not later than the date upon which written notice of a
Prepayment Offer is delivered to the Trustee as provided in Section 4.12(e), the
Company shall deliver to the Trustee an Officers' Certificate as to (i) the
amount of the Prepayment Offer (the "Offer Amount"), (ii) the allocation of the
Net Available Cash from the Asset Sales pursuant to which such Prepayment Offer
is being made and (iii) the compliance of such allocation with Section 4.12(b).
On or before the Purchase Date, the Company shall also irrevocably deposit with
the Trustee or with the Paying Agent (or, if the Company or a Wholly Owned
Restricted Subsidiary is the Paying Agent, shall segregate and hold in trust) in
Temporary Cash Investments (other than in those enumerated in clause (b) of the
definition of Temporary Cash Investments), maturing on the last day prior to the
Purchase Date or on the Purchase Date if funds are immediately available by the
opening of business, an amount equal to the Offer Amount to be held for payment
in accordance with the provisions of this Section 4.12. Upon the expiration of
the period for which the Prepayment Offer remains open (the "Offer Period"), the
Company shall deliver to the Trustee for cancellation the Notes or portions
thereof that have been properly tendered to and are to be accepted by the
Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or
deliver payment to each tendering Holder in the amount of the purchase price. In
the event that the aggregate purchase price of the Notes delivered by the
Company to the Trustee is less than the Offer Amount, the Trustee or the Paying
Agent shall deliver the excess to the Company immediately after the expiration
of the Offer Period for application in accordance with this Section 4.12.
(h) Holders electing to have a Note purchased shall be
required to surrender the Note, with an appropriate form duly completed, to the
Company or its agent at the address specified in the notice at least three
Business Days prior to the Purchase Date. Holders shall be entitled to withdraw
their election if the Trustee or the Company receives not later than one
Business Day prior to the Purchase Date a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note that was delivered for purchase by the Holder and a statement
that such Holder is withdrawing its election to have such Note purchased. If at
the expiration of the Offer Period the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Company shall select the
Notes to be purchased on a pro rata basis for all Notes (with such adjustments
as may be deemed appropriate by the Company so that only Notes in denominations
of $1,000, or integral multiples thereof, shall be purchased). Holders whose
Notes are purchased only in part shall be issued new Notes equal in principal
amount to the unpurchased portion of the Notes surrendered.
(i) At the time the Company or its agent delivers Notes to the
Trustee that are to be accepted for purchase, the Company shall also deliver an
Officers' Certificate stating that such Notes are to be accepted by the Company
pursuant to and in accordance with the terms of this Section 4.12. A Note shall
be deemed to have been accepted for purchase at the
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time the Trustee or the Paying Agent mails or delivers payment therefor to the
surrendering Holder.
(j) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other applicable
securities laws or regulations in connection with the repurchase of Notes
pursuant to this Section 4.12, including any applicable securities laws of the
United States. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.12, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.12 by virtue
thereof.
SECTION 4.13. Limitation on Restrictions on Distributions from Restricted
Subsidiaries.
(a) Neither the Company nor a Guarantor shall, and neither of
them shall permit any Restricted Subsidiary to, create or otherwise cause or
suffer to exist any consensual restriction on the right of any Restricted
Subsidiary to:
(1) pay dividends, in cash or otherwise, or make any other
distributions on or in respect of its Capital Stock to the Company, a
Guarantor or any other Restricted Subsidiary,
(2) pay any Debt or other obligation owed to the Company, a
Guarantor or any other Restricted Subsidiary,
(3) make any loans or advances to the Company, a Guarantor or
any other Restricted Subsidiary, or
(4) transfer any of its Property to the Company, a Guarantor
or any other Restricted Subsidiary.
(b) The foregoing limitations will not apply:
(1) with respect to Sections 4.13(a)(1), (2), (3) and (4), to
restrictions which are:
(A) in effect on the Issue Date (as such restrictions
may be amended from time to time; provided that any such
amendment is not materially more restrictive as to a
Restricted Subsidiary);
(B) imposed by the Notes or this Indenture, or by
indentures governing other Debt the Company or a Guarantor
Incurs (and, if such Debt is Guaranteed, by the guarantors of
such Debt) ranking on a parity with the Notes or
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the Notes Guarantees; provided that the restrictions imposed
by such indentures are no more restrictive than the
restrictions imposed by this Indenture;
(C) imposed by a Credit Facility with respect to Debt
permitted to be Incurred on or subsequent to the date of this
Indenture; provided that the restrictions imposed by such
Credit Facility on the ability of any Restricted Subsidiary to
take action under Section 4.13(a)(1), (2), (3) or (4) above
are not materially more restrictive than the restrictions
imposed by the Credit Agreement;
(D) imposed by Debt of a Restricted Subsidiary
existing at the time it became a Restricted Subsidiary if such
restriction was not created in connection with or in
anticipation of the transaction or series of related
transactions pursuant to which such Restricted Subsidiary
became a Restricted Subsidiary or was acquired by the Company
or a Guarantor;
(E) that result from the Refinancing of Debt Incurred
pursuant to an agreement referred to in Section 4.13(a)(1) or
(4) above; provided such restriction is no less favorable in
any material respect to the Holders of Notes than those under
the agreement evidencing the Debt so Refinanced when taken as
a whole;
(F) restrictions on cash or other deposits or net
worth imposed by leases or other agreements entered into in
the ordinary course of business;
(G) any encumbrances or restrictions required by any
governmental, local or regulatory authority having
jurisdiction over the Company, a Guarantor or any Restricted
Subsidiary or any of their businesses in connection with any
development grant made or other assistance provided to the
Company, a Guarantor or any Restricted Subsidiary by such
governmental authority;
(H) customary provisions in joint venture or similar
agreements or other arrangements with minority investors in
Restricted Subsidiaries and customary provisions in Debt
Incurred by Restricted Subsidiaries organized outside the
United States; provided, however, that such encumbrance or
restriction is applicable only to such Restricted Subsidiary;
and provided, further, that (i) the encumbrance or restriction
is customary in comparable agreements and (ii) the Company
determines that any such encumbrance or restriction will not
materially affect the ability of the Company to make any
anticipated payments of principal or interest on the Notes;
(I) with respect to a Securitization Entity in
connection with a Qualified Securitization Transaction;
provided, however, that such encumbrances
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and restrictions are customarily required by the institutional
sponsor or arranger of such Qualified Securitization
Transaction in similar types of documents relating to the
purchase of similar receivables in connection with the
financing thereof;
(J) customary restrictions contained in asset sale
agreements, stock sale agreements and other similar agreements
limiting the transfer, disposition or distribution of such
Property pending the closing of such sale, including any
restriction imposed with respect to such Restricted Subsidiary
pursuant to an agreement to dispose of all or substantially
all the Capital Stock or assets of such Restricted Subsidiary;
or
(K) customary restrictions imposed on the transfer of
copyrighted or patented materials or other intellectual
property and customary provisions in agreements that restrict
the assignment of such agreements or any rights thereunder.
(2) with respect to Section 4.12(a)(4) only, to restrictions:
(A) relating to Debt that is permitted to be Incurred
and secured without also securing the Notes pursuant to
Section 4.11 that limit the right of the debtor to dispose of
the Property securing such Debt,
(B) encumbering Property at the time such Property
was acquired by the Company or any Restricted Subsidiary, so
long as such restriction relates solely to the Property so
acquired and was not created in connection with or in
anticipation of such acquisition,
(C) resulting from customary provisions restricting
subletting or assignment of leases or customary provisions in
other agreements that restrict assignment of such agreements
or rights thereunder,
(D) imposed by virtue of any transfer of, agreement
to transfer, option or right with respect to or Lien on, any
Property of the Company or the relevant Restricted Subsidiary
not otherwise prohibited by this Indenture, or
(E) imposed under any Purchase Money Debt or Capital
Lease Obligation in the ordinary course of business with
respect only to the Property the subject thereof.
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SECTION 4.14. Limitation on Transactions with Affiliates.
(a) On or prior to the Release, the Company will not enter
into or suffer to exist any Affiliate Transaction (as defined below) other than
to the extent necessary to consummate the Acquisition, the Escrow and Pledge
Agreement, the Release or the Special Mandatory Redemption and the Credit
Facility Escrow Arrangements. From and after the Release, neither the Company
nor any Guarantor shall, and neither of them shall permit any Restricted
Subsidiary to, enter into or suffer to exist any transaction or series of
related transactions (including the purchase, sale, transfer, assignment, lease,
conveyance or exchange of any Property or the rendering of any service) with, or
for the benefit of, any Affiliate of the Company (an "Affiliate Transaction"),
unless:
(1) the terms of such Affiliate Transaction are no
less favorable to the Company, such Guarantor or such
Restricted Subsidiary, as the case may be, than those that
could be obtained in a comparable arm's-length transaction
with a Person that is not an Affiliate of the Company,
(2) if such Affiliate Transaction involves aggregate
payments or value in excess of $10 million, a majority of the
disinterested members of the Board of Directors of Xxxxx or,
if there is only one disinterested director, such
disinterested director, determines that such Affiliate
Transaction complies with clause (a)(1) of this Section 4.14
as evidenced in the minutes or other evidence of Board action,
and
(3) if such Affiliate Transaction involves aggregate payments
or value in excess of $50 million, the Company obtains a written
opinion from an Independent Financial Advisor to the effect that the
consideration to be paid or received in connection with such Affiliate
Transaction is fair, from a financial point of view, to the Company,
such Guarantor or such Restricted Subsidiary, as applicable.
(b) Notwithstanding the foregoing limitation, the Company, a
Guarantor or any Restricted Subsidiary may make, enter into or suffer to exist
the following:
(1) any transaction or series of related transactions between
or among the Company, one or more Guarantors or one or more Restricted
Subsidiaries or between or among two or more Guarantors or Restricted
Subsidiaries;
(2) any Restricted Payment permitted to be made pursuant to
Section 4.10 or any Permitted Investment;
(3) the payment of reasonable compensation (including awards
or grants in cash, securities or other payments) for the personal
services of officers, directors, consultants
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and employees of the Company or any of the Restricted Subsidiaries in
the ordinary course of business;
(4) transactions or other arrangements pursuant to employment
agreements, collective bargaining agreements, employee benefit plans,
or arrangements for employees, officers or directors, including
vacation plans, health and life insurance plans, deferred compensation
plans, directors' and officers' indemnification arrangements and
retirement or savings plans, stock option, stock ownership and similar
plans so long as the Board of Directors of Xxxxx or a committee thereof
comprised of disinterested directors or a disinterested Officer of
Xxxxx in good faith shall have approved the terms thereof;
(5) loans and advances to officers, directors or employees (or
guarantees of third-party loans to officers, directors or employees)
made in the ordinary course of business, provided that such loans and
advances do not exceed $10 million in the aggregate at any one time
outstanding;
(6) transactions with customers, clients, suppliers or
purchasers or sellers of goods or services, in each case in the
ordinary course of business and otherwise in compliance with the terms
of this Indenture which are fair to the Company, the Guarantors or the
Restricted Subsidiaries, as the case may be, or are on terms no less
favorable than might reasonably have been obtained at such time from an
unaffiliated party; provided that such transactions are approved by a
majority of disinterested directors of the Board of Directors of Xxxxx
or, if there is only one disinterested director, such director;
(7) payments to Greenwich Street Capital Partners, L.P. or its
Affiliates pursuant to monitoring or similar arrangements approved by a
majority of disinterested directors of the Board of Directors of Xxxxx,
or if there is only one disinterested director, such director;
(8) the issuance and sale of Capital Stock (other than
Disqualified Stock) of Xxxxx;
(9) transactions with Persons in their capacity as holders of
Debt or Capital Stock of the Company, any Guarantor or any Restricted
Subsidiary where such Persons are treated no more favorably than
holders of Debt or Capital Stock of the Company, any Guarantor or any
Restricted Subsidiary generally;
(10) transactions pursuant to any agreement as in effect on
the date of this Indenture or transactions of Xxxxxxx and its
subsidiaries with, or for the benefit of, any Person that becomes an
Affiliate of the Company as a result of the consummation of
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the Acquisition pursuant to any agreement as in effect on the date of
this Indenture, as the same may be amended from time to time in any
manner not materially less favorable to the Holders of the Notes;
provided any such amendment does not increase the amount payable
thereunder to an Affiliate; and
(11) sales, transfers or dispositions of Receivables and
Related Assets to a Securitization Entity and acquisitions of
Investments in connection therewith.
SECTION 4.15. Designation of Restricted and Unrestricted Subsidiaries.
(a) From and after the Release, by resolution of the Board of
Directors of the Company and the Board of Directors of Xxxxx, any Subsidiary of
Xxxxx (or Person that is to become a Subsidiary of Xxxxx) may be designated to
be an Unrestricted Subsidiary if:
(x) the Subsidiary to be so designated does not and will not
so long as it is an Unrestricted Subsidiary own any Capital Stock or
Debt of, or own or hold any Lien on any Property of, the Company, a
Guarantor or any Restricted Subsidiary and does not and will not so
long as it is an Unrestricted Subsidiary have any Debt other than
Non-Recourse Debt, and
(y) the Company and the Guarantors would be permitted under
Section 4.10 to make a Restricted Payment in an amount equal to the
Fair Market Value of Xxxxx'x Investment in such Subsidiary. For the
purposes of this provision, in the event the Fair Market Value of such
assets exceeds $50 million, such Fair Market Value shall be determined
by an Independent Financial Advisor.
Unless so designated as an Unrestricted Subsidiary at the time a Person becomes
a Subsidiary of Xxxxx, any Person that becomes a Subsidiary of Xxxxx will be
classified as a Restricted Subsidiary at such time.
(b) Except as provided in Section 4.15(a), no Restricted
Subsidiary may be redesignated as an Unrestricted Subsidiary. In addition, none
of the Company, a Guarantor or any Restricted Subsidiary shall at any time be
directly or indirectly liable for any Debt that provides that the holder thereof
may (with the passage of time or notice or both) declare a default thereon or
cause the payment thereof to be accelerated or payable prior to its Stated
Maturity upon the occurrence of a default with respect to any Debt, Lien or
other obligation of any Unrestricted Subsidiary (including any right to take
enforcement action against such Unrestricted Subsidiary).
By resolution of the Board of Directors of the Company and the
Board of Directors of Xxxxx, any Unrestricted Subsidiary may be designated to be
a Restricted Subsidiary if, immediately after giving pro forma effect to such
designation,
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(x) the Company could Incur at least $l.00 of additional Debt
pursuant to Section 4.09(b) and
(y) no Default or Event of Default shall have occurred and be
continuing or would result therefrom.
Any such designation or redesignation will be evidenced to the
Trustee by filing with the Trustee the Board Resolutions giving effect to such
designation or redesignation and an Officers' Certificate of the Company that:
(x) certifies that such designation or redesignation complies
with the provisions of this Section 4.15, and
(y) gives the effective date of such designation or
redesignation,
such filing with the Trustee to occur on or before the time financial statements
are filed with the Commission or the Trustee pursuant to Section 4.17 in respect
of the fiscal quarter of the Company in which such designation or redesignation
is made (or, in the case of a designation or redesignation made during the last
fiscal quarter of the Company's fiscal year, on or before the time financial
statements in respect of such fiscal year are filed with the Commission or the
Trustee pursuant to Section 4.18).
SECTION 4.16. Creation of Subsidiaries; Additional Subsidiary Guarantees.
Notwithstanding anything herein to the contrary, the Company
will not create, acquire or form any Subsidiaries.
Xxxxx will not permit any of its Subsidiaries having assets,
at any time, with a Fair Market Value in excess of $10,000 to Guarantee or
pledge any assets to secure the payment of any other Debt of the Company, a
Guarantor or a Restricted Subsidiary (other than a Guarantee by a Restricted
Subsidiary that is not a Guarantor that is organized outside the United States
or another similar Restricted Subsidiary) unless such Subsidiary simultaneously
executes and delivers a supplemental indenture providing for the Guarantee of
the payment of the Notes by such Subsidiary, which Guarantee shall be senior to
or pari passu with such Subsidiary's Guarantee of or pledge to secure such other
Debt; provided that if such Subsidiary is organized outside the United States or
Canada and such other Debt that is being guaranteed is Senior Credit Facility
Debt, then such Subsidiary's Guarantee shall be subordinated on the same terms
and conditions as the Subordinated Subsidiary Guarantees.
The Notes Guarantee of a Guarantor will be released if
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(1) any Guarantor is designated as an Unrestricted Subsidiary
in accordance with the applicable provisions of this Indenture; or
(2) in connection with the sale of (A) that number of shares
of Capital Stock of a Guarantor such that such Guarantor is no longer a
Subsidiary of Xxxxx or (B) all or substantially all of the assets of a
Guarantor to a Person that is not the Company or a Guarantor or a
Restricted Subsidiary; provided that such sale complies with Section
4.12 hereof.
In addition, in the event a Subsidiary becomes a Guarantor
solely because it Guarantees other Debt, then upon the full and unconditional
release of the Guarantee of such other Debt (provided that the Trustee is given
two Business Days' written notice of such other release) such Guarantee of such
Subsidiary shall also be released.
SECTION 4.17. Limitation of Company's Business.
Prior to the Release, the Company shall not engage in any line
of business or own any other assets other than as necessary to consummate the
Release or the Special Mandatory Redemption and the transactions contemplated by
the Escrow and Pledge Agreement, and the Credit Facility Escrow Arrangements.
After the Release, the Company shall not own any assets or engage in any
business other than Incurring Debt, as permitted by Section 4.09 hereof and
servicing and repaying such Debt and the Notes. The Board of Directors and
Officers of the Company shall at all times be comprised of members of the Board
of Directors and/or Officers of Xxxxx. Xxxxx shall not, and shall not permit any
Guarantor or Restricted Subsidiary to, engage in any business other than the
Business it or Xxxxxxx is engaged in on the Issue Date or a Related Business.
SECTION 4.18. Reports to Holders.
Whether or not Xxxxx is then subject to Section 13(a) or 15(d)
of the Exchange Act, Xxxxx will electronically file with the Commission, so long
as the Notes are outstanding, the annual reports, quarterly reports and other
periodic reports that Xxxxx would be required to file with the Commission
pursuant to Section 13(a) or 15(d) if Xxxxx were so subject, and such documents
will be filed with the Commission on or prior to the respective dates (the
"Required Filing Dates") by which Xxxxx would be required so to file such
documents if Xxxxx were so subject, unless, in any case, such filings are not
then permitted by the Commission.
If such filings with the Commission are not then permitted by
the Commission, or such filings are not generally available on the Internet free
of charge, the Company will, without charge to the Holders, within 15 days of
each Required Filing Date, transmit by mail to Holders, as their names and
addresses appear in the Note register, and file with the Trustee
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copies of the annual reports, quarterly reports and other periodic reports that
Xxxxx would be required to file with the Commission pursuant to Section 13(a) or
15(d) of the Exchange Act if it were subject to such Section 13(a) or 15(d) and,
promptly upon written request, supply copies of such documents to any
prospective Holder or beneficial owner at Xxxxx'x cost.
So long as any of the Notes remain restricted under Rule 144,
Xxxxx will make available upon request to any prospective purchaser of Notes or
beneficial owner of Notes in connection with any sale thereof the information
required by Rule 144A(d)(4) under the Securities Act.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
All references in this Agreement to the filing of documents
with the Commission includes, at such time as is permitted pursuant to this
Section, the delivering of the same to the Trustee.
SECTION 4.19. Covenant Suspension.
(a) During any period of time that the Notes have Investment Grade
Ratings from the Required Rating Agencies, the Company, and the Restricted
Subsidiaries shall not be subject to the following provisions of this Indenture:
- Section 4.08,
- Section 4.09,
- Section 4.10,
- Section 4.12,
- Section 4.13,
- Section 4.14,
- Section 4.15(b)(x),
- Section 4.17, and
- Section 5.01(b)(4) and (c)
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(collectively, the "Suspended Covenants").
(b) In the event that the Company, the Guarantors and the Restricted
Subsidiaries are not subject to the Suspended Covenants for any period of time
as a result of clause (a) of this Section 4.19 and, subsequently, a Required
Rating Agency withdraws its rating or downgrades the rating assigned to the
Notes so that the Notes no longer have Investment Grade Ratings from the
Required Rating Agencies or a Default or Event of Default occurs and is
continuing, then the Company, the Guarantors and the Restricted Subsidiaries
shall from such time and thereafter again be subject to the Suspended Covenants,
and compliance with the Suspended Covenants with respect to Restricted Payments
made after the time of such withdrawal, downgrade, Default or Event of Default
will be calculated in accordance with the terms of Section 4.10 as though such
Section 4.10 had been in effect during the entire period of time from the Issue
Date, it being understood that no actions taken by the Company, the Guarantors
or any of their Restricted Subsidiaries during the suspension period shall
constitute a Default or an Event of Default under the Suspended Covenants.
SECTION 4.20. Additional Amounts.
All payments made by Xxxxx or any other Guarantor organized in Canada
("Canadian Guarantor") with respect to its Guarantee will be made free and clear
of and without withholding or deduction for or on account of any present or
future Taxes, unless such Canadian Guarantor is required to withhold or deduct
Taxes by law or by the interpretation or administration thereof. If Canadian
Guarantor is required to withhold or deduct any amount for or on account of
Taxes from any payment made under or with respect to its Guarantee, Canadian
Guarantor will pay such additional amounts ("Additional Amounts") as may be
necessary so that the net amount received by each holder of Notes (including
Additional Amounts) after such withholding or deduction will not be less than
the amount the holder would have received if such Taxes had not been withheld or
deducted; provided that no Additional Amounts will be payable with respect to a
payment made to a holder of Notes (an "Excluded Holder") (i) with which Canadian
Guarantor does not deal at arm's length (within the meaning of the Income Tax
Act (Canada)) at the time of making such payment or at the time that any such
payment is deemed to be paid or credited or (ii) which is subject to Taxes by
reason of its being connected with Canada or any province or territory thereof
otherwise than by the mere acquisition, holding or disposition of the Notes or
the receipt of payments thereunder. Canadian Guarantor will also (i) make such
withholding or deduction and (ii) remit the full amount deducted or withheld to
the relevant authority in accordance with applicable law. Xxxxx will furnish to
the Trustee within 30 days after the date of the payment of any Taxes due
pursuant to applicable law a certification that such payment has been made.
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Xxxxx will indemnify and hold harmless each holder of Notes (other than
an Excluded Holder), and upon written request of any holder of Notes (other than
an Excluded Holder), reimburse each such holder for the amount of (i) any Taxes
so levied or imposed and paid by such holder as a result of payments made under
or with respect to a Canadian Guarantor Guarantee; (ii) any liability (including
penalties, interest and expense) arising therefrom or with respect thereto, and
(iii) any such Taxes so levied or imposed with respect to any reimbursement
under the foregoing clause (i) or (ii) so that the net amount received by such
holder after such reimbursement will not be less than the net amount the holder
would have received if Taxes on such reimbursement had not been imposed.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Property.
(a) Prior to the Release, except in connection with the
Release or the Special Mandatory Redemption and the transactions contemplated by
the Escrow and Pledge Agreement, the Company shall not merge, consolidate or
amalgamate with or into any other Person or sell, transfer, assign, lease,
convey or otherwise dispose of all or substantially all its Property in any one
transaction or series of related transactions.
(b) From and after the Release, neither the Company nor Xxxxx
shall merge, consolidate or amalgamate with or into any other Person (other than
a merger of a Wholly Owned Restricted Subsidiary into Xxxxx or the merger of
Xxxxx Holdings, Xxxxx XX or Xxxxxxx into Xxxxx) or sell, transfer, assign,
lease, convey or otherwise dispose of all or substantially all its Property in
any one transaction or series of related transactions, unless:
(1) the Company or Xxxxx, as the case may be, shall be the
surviving Person (the "Surviving Person") or the Surviving Person (if
other than the Company or Xxxxx) formed by such merger, consolidation
or amalgamation or to which such sale, transfer, assignment, lease,
conveyance or disposition is made which is substituted for the Company
as the issuer of the Notes or, in the case of Xxxxx, as a Guarantor,
shall be a corporation (in the case of the Issuer of the Notes) or a
corporation, limited liability company, trust, partnership or similar
entity (in the case of a Guarantor) organized and existing under the
laws of the United States of America, any State thereof or the District
of Columbia or, in the case of Xxxxx, under the laws of Canada or any
province or territory thereof;
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(2) the Surviving Person (if other than the Company or Xxxxx)
expressly assumes, by supplemental indenture in form reasonably
satisfactory to the Trustee, executed and delivered to the Trustee by
such Surviving Person, (x) the due and punctual payment of the
principal amount of the Notes, any accrued and unpaid interest on such
principal amount, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of this
Indenture to be performed by such Person or (y) all obligations under
the relevant Guarantee, as appropriate;
(3) immediately before and after giving effect to such
transaction or series of related transactions on a pro forma basis (and
treating, for purposes of this Section 5.01(b)(3) and Sections
5.01(b)(4) and (b)(5) below, any Debt that becomes, or is anticipated
to become, an obligation of the Surviving Person or any Restricted
Subsidiary as a result of such transaction or series of related
transactions as having been Incurred by the Surviving Person or such
Restricted Subsidiary at the time of such transaction or series of
related transactions), no Default or Event of Default shall have
occurred and be continuing;
(4) immediately after giving effect to such transaction or
series of related transactions on a pro forma basis, the Company or the
Surviving Person (if other than the Company) would be able to Incur at
least $1.00 of additional Debt pursuant to Section 4.09(b); and
(5) the Surviving Person shall deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers' Certificate and an Opinion of
Counsel, each stating that such transaction and the supplemental
indenture, if any, in respect thereof comply with this Section 5.01 and
that all conditions precedent herein provided for relating to such
transaction have been satisfied.
(c) None of the Subsidiary Guarantors shall merge, consolidate
or amalgamate with or into any other Person in any one transaction or series of
related transactions (other than (i) a merger of a Subsidiary Guarantor with or
into a Guarantor or a Wholly Owned Restricted Subsidiary (other than an
Unrestricted Subsidiary) into a Subsidiary Guarantor or (ii) a merger,
consolidation, amalgamation or sale of all or substantially all of the Property
of a Subsidiary Guarantor in connection with the sale of such Subsidiary
Guarantor or its Property to a non-Affiliate third party that does not become an
Affiliate as a result of such transaction and is otherwise permitted under this
Indenture) unless:
(1) the Surviving Person (if not such Subsidiary Guarantor)
formed by such merger, consolidation or amalgamation or to which such
sale, transfer, assignment, lease, conveyance or disposition is made
shall be a corporation, limited liability company, trust, partnership
or similar entity organized and existing under the laws of
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United States of America, any State thereof or the District of Columbia
or under the same jurisdiction as such Subsidiary Guarantor;
(2) the Surviving Person (if other than such Subsidiary
Guarantor) expressly assumes, by Subsidiary Guarantee in form
satisfactory to the Trustee, executed and delivered to the Trustee by
such Surviving Person, the due and punctual performance and observance
of all the obligations of such Subsidiary Guarantor under its
Subsidiary Guarantee;
(3) immediately before and after giving effect to such
transaction or series of related transactions on a pro forma basis (and
treating, for purposes of this Section 5.01(c)(3) and Section
5.01(c)(4) and (5) below, any Debt that becomes, or is anticipated to
become, an obligation of the Surviving Person, the Company, a Guarantor
or any Restricted Subsidiary as a result of such transaction or series
of related transactions as having been Incurred by the Surviving
Person, the Company or such Guarantor or Restricted Subsidiary at the
time of such transaction or series of related transactions), no Default
or Event of Default shall have occurred and be continuing;
(4) immediately after giving effect to such transaction or
series of related transactions on a pro forma basis, the Company would
be able to Incur at least $1.00 of additional Debt pursuant to Section
4.09(b); and
(5) the Company and Xxxxx shall deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers' Certificate and an Opinion of
Counsel, each stating that such transaction and such Subsidiary
Guarantee, if any, in respect thereto comply with this Section 5.01 and
that all conditions precedent herein provided for relating to such
transaction have been satisfied.
(d) The provisions of Section 5.01(c) shall not apply to (i)
any transactions which constitute an Asset Sale if the Company has complied with
Section 4.12 or (ii) a merger of the Company or Xxxxx or a Subsidiary Guarantor
with an Affiliate that is organized in any state of the United States or Canada
with no material assets or liabilities and which merger is solely for the
purpose of reincorporating such Person in another jurisdiction in the United
States or Canada.
(e) The Surviving Person shall succeed to, and be substituted
for, and may exercise every right and power of its predecessor under this
Indenture.
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SECTION 5.02. Successor Person Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of either the Company or any Restricted
Subsidiary in accordance with Section 5.01 above, the successor corporation
formed by such consolidation or into which the Company is merged or to which
such transfer is made shall succeed to, and be substituted for, and may exercise
every right and power the Company or such Restricted Subsidiary under this
Indenture with the same effect as if such successor corporation had been named
as the Company or such Restricted Subsidiary herein, and thereafter the
predecessor corporation shall be relieved of all obligations and covenants under
this Indenture and the Notes.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
The following events shall be "Events of Default":
(1) the Company defaults in any payment of interest on any
Note when the same becomes due and payable and such default continues
for a period of 30 days;
(2) the Company defaults in the payment of the principal
amount of any Note when the same becomes due and payable at its Stated
Maturity, upon acceleration, redemption, optional redemption, required
repurchase or otherwise;
(3) a failure to comply with Section 5.01 or 5.02;
(4) a failure to comply with any covenant or agreement in the
Notes or in this Indenture (other than a failure that is the subject of
Section 6.01(1), (2) or (3)) and such failure continues for 60 days
after written notice is given to the Company as specified in this
Section 6.01;
(5) a default by the Company, a Guarantor or any Restricted
Subsidiary (other than a Securitization Entity) under any Debt of the
Company, a Guarantor or any Restricted Subsidiary (other than a
Securitization Entity) that results in acceleration of the final
maturity of such Debt, or the failure to pay any such Debt at final
maturity, in an aggregate principal amount in excess of $20 million;
(6) either Parent, the Company, Xxxxx XX or any Significant
Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
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(A) commences a voluntary insolvency proceeding;
(B) consents to the entry of an order for relief
against it in an involuntary insolvency proceeding or consents
to its dissolution or winding-up;
(C) consents to the appointment of a Custodian of it
or for any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
insolvency; provided, however, that the liquidation of any Restricted
Subsidiary into another Restricted Subsidiary, other than as part of a
credit reorganization, shall not constitute an Event of Default under
this Section 6.01(6);
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against either Parent, the Company,
Xxxxx XX or any Significant Subsidiary in an involuntary
insolvency proceeding;
(B) appoints a Custodian of either Parent, the
Company, Xxxxx XX or any Significant Subsidiary or for any
substantial part of its property;
(C) orders the winding-up, liquidation or dissolution
of either Parent, the Company, Xxxxx XX or any Significant
Subsidiary;
(D) orders the presentation of any plan or
arrangement, compromise or reorganization of either Parent,
the Company, Xxxxx XX or any Significant Subsidiary; or
(E) grants any similar relief under any foreign laws;
and in each such case the order or decree remains unstayed and in
effect for 90 days;
(8) any judgment or judgments for the payment of money in an
unsecured aggregate amount (net of any amount covered by insurance
issued by a reputable and creditworthy insurer that has not contested
coverage or reserved rights with respect to the underlying claim and
that continues to make payments pursuant to the terms of the relevant
policy) in excess of $20 million at the time entered against the
Company, Xxxxx or any Significant Subsidiary and shall not be waived,
satisfied or discharged for any period of 60 consecutive days during
which a stay of enforcement shall not be in effect or otherwise
payable; or
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(9) (a) a Parent Guarantee, a Sister Guarantee or any
Subsidiary Guarantee from a Significant Subsidiary ceases to be in full
force and effect (other than in accordance with the terms of such
Guarantee) or (b) either of the Parents, either of the Sister
Guarantors or any Subsidiary Guarantor that is a Significant Subsidiary
denies or disaffirms its obligations under its Guarantee.
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
A Default under Section 6.01(4) is not an Event of Default
until the Trustee or the Holders of at least 25% in aggregate principal amount
at maturity of the Notes then outstanding notify the Company (and in the case of
such notice by Holders, the Trustee) of the Default and such Default is not
cured within the time specified after receipt of such notice. Such notice must
specify the Default, demand that it be remedied and state that such notice is a
"Notice of Default."
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any Event of Default and any event that with the giving of notice or the
lapse of time would become an Event of Default, its status and what action the
Company is taking or proposes to take with respect thereto.
The Company shall immediately notify the Trustee if a meeting
of the Board of Directors of the Company, either Sister Guarantor or either
Parent is convened to consider any action mandated by a petition for debt
settlement proceedings or bankruptcy proceedings. The Company shall also
promptly advise the Trustee of the approval of the filing of a debt settlement
or bankruptcy petition prior to the filing of such petition.
SECTION 6.02. Acceleration of Maturity; Rescission.
If an Event of Default with respect to the Notes (other than
an Event of Default specified in Sections 6.01(6) and 6.01(7) with respect to
the Company, the Parents, Xxxxx XX or a Significant Subsidiary) shall have
occurred and be continuing, the Trustee or the registered Holders of not less
than 25% in aggregate principal amount of the Notes then outstanding may declare
to be immediately due and payable the principal amount of all the Notes then
outstanding by written notice to the Company and the Trustee, plus accrued but
unpaid interest to the date of acceleration. In case an Event of Default
specified in Sections 6.01(6) and 6.01(7) with respect to the Company, the
Parents, Xxxxx XX or a Significant Subsidiary shall occur, such amount with
respect to all the Notes shall be automatically due and payable immediately
without any declaration or other act on the part of the Trustee or the Holders
of the Notes. After any such acceleration, but before a judgment or decree based
on acceleration
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is obtained by the Trustee, the registered Holders of a majority in aggregate
principal amount of the Notes then outstanding may rescind and annul such
acceleration if (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, premium or interest that has become due solely because
of the acceleration, (iii) to the extent the payment of such interest is lawful,
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 reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances and all
other amounts due to the Trustee under Section 7.07 and (v) in the event of the
cure or waiver of an Event of Default of the type described in either Section
6.01(6) or (7), the Trustee shall have received an Officers' Certificate to the
effect that such Event of Default has been cured or waived. No such rescission
shall affect any subsequent Default or impair any right consequent thereto.
In the event of a declaration of acceleration of the Notes
because an Event of Default described in Section 6.01(5) has occurred and is
continuing, the declaration of acceleration of the Notes shall be automatically
annulled if the Payment Default or other default triggering such Event of
Default pursuant to Section 6.01(5) shall be remedied or cured by the Company, a
Guarantor or a Restricted Subsidiary or waived by the holders of the relevant
Debt within the grace period applicable to such default provided for in the
documentation governing such Debt and if (a) the annulment of the acceleration
of the Notes would not conflict with any judgment or decree of a court of
competent jurisdiction and (b) all existing Events of Default, except nonpayment
of principal, premium or interest on the Notes that became due solely because of
the acceleration of the Notes, have been cured or waived.
Subject to Section 7.01, in case an Event of Default shall
occur and be continuing, the Trustee shall be under no obligation to exercise
any of its rights or powers under this Indenture at the request or direction of
any of the Holders of the Notes, unless such Holders shall have offered to the
Trustee reasonable indemnity. Subject to Section 7.07, the Holders of a majority
in aggregate principal amount of the Notes then outstanding will have the right
to 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 the
Trustee with respect to the Notes.
No Holder of Notes will have any right to institute any
proceeding with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any remedy hereunder, unless:
(a) such Holder has previously given to the Trustee written
notice of a continuing Event of Default,
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(b) the Holders of at least 25% in aggregate principal amount
of the Notes then outstanding have made written request and offered
reasonable indemnity to the Trustee to institute such proceeding as
Trustee, and
(c) the Trustee shall not have received from the Holders of a
majority in aggregate principal amount of the Notes then outstanding a
direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days after such notice, request and
offer.
However, such limitations do not apply to a suit instituted by
a Holder of any Note for enforcement of payment of the principal of, and
premium, if any, or interest on, such Note on or after the respective due dates
expressed in such Note.
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 premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture and may
take any necessary action requested of it as Trustee to settle, compromise,
adjust or otherwise conclude any proceedings to which it is a party.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. Any
such proceeding instituted by the Trustee may be brought in its own name and as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements of the
Trustee and its counsel, be for the ratable benefit of the Holders of the Notes
in respect of which such judgment has been recovered. A delay or omission by the
Trustee or any Holder in exercising any right or remedy accruing upon an Event
of Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative, to the extent permitted by law.
Any costs associated with actions taken by the Trustee under this Section 6.03
shall be reimbursed to the Trustee by the Company.
SECTION 6.04. Waiver of Past Defaults and Events of Default.
Provided the Notes are not then due and payable by reason of a
declaration of acceleration, the Holders of a majority in principal amount of
Notes at the time outstanding may on behalf of the Holders of all the Notes
waive any past Default with respect to such Notes and its consequences by
providing written notice thereof to the Company and the Trustee, except a
Default (1) in the payment of interest on or the principal of any Note or (2) in
respect of a covenant or provision hereof which under this Indenture cannot be
modified or amended without the consent of the Holder of each outstanding Note
affected. In the case of
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any such waiver, the Company, the Trustee and the Holders of the Notes will be
restored to their former positions and rights under this Indenture,
respectively; provided that no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereto.
SECTION 6.05. Control by Majority.
The Holders of at least a majority in aggregate principal
amount of the outstanding Notes may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture, that may involve
the Trustee in personal liability, or that the Trustee determines in good faith
may be unduly prejudicial to the rights of Holders of the Notes not joining in
the giving of such direction and may take any other action it deems proper that
is not inconsistent with any such direction received from Holders of the Notes.
SECTION 6.06. Limitation on Suits.
No Holder of Notes will have any right to institute any
proceeding with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any remedy hereunder, unless:
(1) the Holder gives the Trustee written notice of a
continuing Event of Default,
(2) the Holders of at least 25% in aggregate principal amount
of outstanding Notes make a written request to the Trustee to institute
such proceeding or pursue such remedy as trustee,
(3) such Holder or Holders offer the Trustee indemnity
satisfactory to the Trustee against any costs, liability or expense,
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity, and
(5) during such 60-day period the Holders of at least a
majority in aggregate principal amount of the outstanding Notes do not
give the Trustee a direction that is inconsistent with the request.
However, such limitations do not apply to a suit instituted by
a Holder of any Note for enforcement of payment of the principal of, and
premium, if any, or interest on, such Note on or after the respective due date
expressed in such Note.
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SECTION 6.07. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No director, manager, trustee, officer, employee, member,
partner or stockholder of the Company or any Subsidiary Guarantor, shall have
any liability for any obligations of the Company or any Subsidiary Guarantor
under the Notes, or this Indenture or for any claim based on, in respect of, or
by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes. This waiver may not be
effective to waive liabilities under the U.S. federal securities laws.
SECTION 6.08. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of the principal of or premium,
if any, or interest, if any, on such Note or to bring suit for the enforcement
of any such payment, on or after the due date expressed in the Notes shall not
be impaired or affected without the consent of the Holder.
SECTION 6.09. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium or
interest specified in Section 6.01(1) or (2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any Guarantor (or any other obligor on the Notes) for the
whole amount of unpaid principal and accrued interest remaining unpaid.
SECTION 6.10. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07) and the Holders allowed in any
judicial proceedings relative to the Company or any Subsidiary Guarantor (or any
other obligor upon the Notes), its creditors or its property and, unless
prohibited by law, 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 after deduction of its charges and expenses to the extent
that any such charges and expenses are not paid out of the estate in any such
proceedings and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07.
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Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan or reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceedings. All rights of
action and claims under this Indenture or the Notes may be prosecuted and
enforced by the Trustee without the possession of any of the Notes thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders in respect of which such
judgment has been recovered.
SECTION 6.11. Priorities.
If the Trustee collects any money pursuant to this Article
Six, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest (including Additional
Interest, if any) as to each, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes; and
THIRD: to the Company or, to the extent the Trustee collects
any amount from any Subsidiary Guarantor, to such Subsidiary Guarantor.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 6.11.
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 6.08 or a suit by Holders of more than 10%
in principal amount of the Notes then outstanding.
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ARTICLE SEVEN
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 their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such Person's own
affairs.
The Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Notes and this Indenture.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only such duties as are
specifically set forth in this Indenture and no others.
(2) In the absence of bad faith or willful misconduct on its
part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture but, in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform on
their face to the requirements of this Indenture (but need not confirm
or investigate the accuracy of mathematical calculations or other facts
stated therein). Whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, conclusively rely upon an
Officers' Certificate, subject to the requirement in the preceding
sentence, if applicable.
(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 Section
7.01(b).
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(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers 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
of the Holders of a majority in aggregate principal amount of the Notes
received by it pursuant to the terms hereof.
(4) 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 rights, powers or duties if
it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity satisfactory to it against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, Sections
7.01(a), (b), (c) and (e) shall govern every provision of this Indenture that in
any way relates to the Trustee.
(e) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request.
(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 or
any Guarantor. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by the law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(1) The Trustee may conclusively rely on any document (whether
in its original or facsimile form) reasonably believed by it to be
genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both,
which shall conform to the provisions of Section 12.05. The Trustee
shall be protected and shall not be liable for any action it takes or
omits to take in good faith in reliance on such certificate or opinion.
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(3) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed by it with due care.
(4) 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; provided that the Trustee's
conduct does not constitute willful misconduct, negligence or bad
faith.
(5) The Trustee may consult with counsel of its selection, and
the advice or opinion of such counsel with respect to legal matters
relating to the Notes or this Indenture shall be full and complete
authorization and protection from liability in respect of any action
taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
(6) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and each agent, custodian
and other person employed to act hereunder.
(7) 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;
(8) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture;
(9) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture;
(10) 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
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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 suspended.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may make loans to, accept deposits from,
perform services for or otherwise deal with the either of the Company or any
Guarantor, or any Affiliates thereof, with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights. The Trustee,
however, shall be subject to Sections 7.10 and 7.11.
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 Notes or
any Guarantee, it shall not be accountable for the Company's or any Guarantor's
use of the proceeds from the sale of Notes or any money paid to the Company or
any Guarantor pursuant to the terms of this Indenture and it shall not be
responsible for any statement in the Notes, Guarantee or this Indenture other
than its certificate of authentication, except that the Trustee represents that
it is duly authorized to execute and deliver this Indenture, authenticate the
Notes and perform its obligations hereunder and that the statements made by it
in any Statement of Eligibility and Qualification on Form T-1 to be supplied to
the Company will be true and accurate subject to the qualifications set forth
therein.
SECTION 7.05. Notice of Defaults.
If a Default occurs and is continuing and if it is known to
the Trustee, the Trustee shall give to each Holder a notice of the Default
within 90 days after it occurs in the manner and to the extent provided in the
TIA and otherwise as provided in this Indenture. Except in the case of a Default
in payment of the principal of or interest on any Note (including payments
pursuant to a redemption or repurchase of the Notes pursuant to the provisions
of this Indenture), the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of Holders.
SECTION 7.06. Reports by Trustee to Holders.
If required by TIA Section 313(a), within 60 days after June
15 of any year, commencing 2004 the Trustee shall mail to each Holder a brief
report dated as of such date that complies with TIA Section 313(a). The Trustee
also shall comply with TIA Section 313(b)(2). The Trustee shall also transmit by
mail all reports as required by TIA Section 313(c) and TIA Section 313(d).
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Reports pursuant to this Section 7.06 shall be transmitted by
mail:
(1) to all Holders of Notes, as the names and addresses of
such Holders appear on the Registrar's books; and
(2) to such Holders of Notes as have, within the two years
preceding such transmission, filed their names and addresses with the
Trustee for that purpose.
A copy of each report at the time of its mailing to Holders
shall be filed with the Commission and each stock exchange on which the Notes
are listed. The Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange or delisted therefrom.
SECTION 7.07. Compensation and Indemnity.
The Company and the Guarantors shall pay to the Trustee and
Agents from time to time such compensation for their services hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) as shall be agreed upon in
writing. The Company and the Guarantors shall reimburse the Trustee and Agents
upon request for all reasonable disbursements, expenses and advances incurred or
made by them in connection with the Trustee's duties under this Indenture,
including the reasonable compensation, disbursements and expenses of the
Trustee's agents and external counsel, except any expense disbursement or
advance as may be attributable to its willful misconduct, negligence or bad
faith.
The Company and the Guarantors, jointly and severally, shall
fully indemnify each of the Trustee and any predecessor Trustee for, and hold
each of them harmless against, any and all loss, damage, claim, liability or
expense, including without limitation taxes (other than taxes based on the
income of the Trustee or such Agent) and reasonable attorneys' fees and expenses
incurred by each of them in connection with the acceptance or performance of its
duties under this Indenture including the reasonable costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder (including, without
limitation, settlement costs). The Trustee or Agent shall notify the Company and
the Guarantors in writing promptly of any claim of which a Responsible Officer
of the Trustee has actual knowledge asserted against the Trustee or Agent for
which it may seek indemnity; provided that the failure by the Trustee or Agent
to so notify the Company and the Guarantors shall not relieve the Company and
Guarantors of their obligations hereunder except to the extent the Company and
the Guarantors are actually prejudiced thereby. In the event that a conflict of
interest exists, the Trustee may have separate counsel, which counsel must be
reasonably acceptable to the Company and the Company shall pay the reasonable
fees and expenses of such counsel.
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Notwithstanding the foregoing, the Company and the Guarantors
need not reimburse the Trustee for any expense or indemnify it against any loss
or liability to have been incurred by the Trustee through its own willful
misconduct, negligence or bad faith.
To secure the payment obligations of the Company and the
Guarantors in this Section 7.07, the Trustee shall have a lien prior to the
Notes on all money or property held or collected by the Trustee except for
Escrowed Property and such money or property held in trust to pay principal of
and interest on particular Notes.
The obligations of the Company and the Guarantors under this
Section 7.07 to compensate and indemnify the Trustee, Agents and each
predecessor Trustee and to pay or reimburse the Trustee, Agents and each
predecessor Trustee for expenses, disbursements and advances shall be joint and
several liabilities of the Company and each of the Guarantors and shall survive
the resignation or removal of the Trustee and the satisfaction, discharge or
other termination of this Indenture, including any termination or rejection
hereof under any Bankruptcy Law.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(6) or (7) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
For purposes of this Section 7.07, the term "Trustee" shall
include any trustee appointed pursuant to this Article Seven.
SECTION 7.08. Replacement of Trustee.
The Trustee shall comply with Section 313(b) of the TIA, to
the extent applicable.
The Trustee may resign by so notifying the Company and the
Guarantors in writing no later than 15 Business Days prior to the date of the
proposed resignation. The Holders of a majority in principal amount of the
outstanding Notes may remove the Trustee by notifying the Company and the
removed Trustee in writing and may appoint a successor Trustee with the
Company's written consent, which consent shall not be unreasonably withheld. The
Company may remove the Trustee at its election if:
(1) the Trustee fails to comply with Section 7.10 or Section
310 of the TIA;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief entered with respect to the Trustee under Bankruptcy
Law;
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(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, the Guarantors or the Holders of a majority in principal amount of the
outstanding Notes may petition at the expense of the Company any court of
competent jurisdiction, in the case of the Trustee, for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company and the Guarantors.
Immediately following such delivery, the retiring Trustee shall, subject to its
rights under Section 7.07, transfer all property held by it as Trustee to the
successor Trustee, 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. A successor Trustee shall mail
notice of its succession to each Holder. 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.
SECTION 7.09. Successor Trustee by Consolidation, Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, subject to Section 7.10, the successor corporation without any
further act shall be the successor Trustee; provided such entity shall be
otherwise qualified and eligible under this Article Seven.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5) in every respect. The Trustee
(together with its corporate parent) shall have a combined capital and surplus
of at least $50 million as set forth in the most recent applicable published
annual report of condition. The Trustee shall comply with TIA Section 310(b),
including the provision in Section 310(b)(1).
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SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311 (b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
SECTION 7.12. Paying Agents.
The Company shall cause each Paying Agent other than the
Trustee to execute and deliver to it and the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of this Section
7.12:
(A) that it will hold all sums held by it as agent for the
payment of principal of, or premium, if any, or interest on, the Notes
(whether such sums have been paid to it by the Company or by any
obligor on the Notes) in trust for the benefit of Holders of the Notes
or the Trustee;
(B) that it will at any time during the continuance of any
Event of Default, upon written request from the Trustee, deliver to the
Trustee all sums so held in trust by it together with a full accounting
thereof; and
(C) that it will give the Trustee written notice within three
(3) Business Days of any failure of the Company (or by any obligor on
the Notes) in the payment of any installment of the principal of,
premium, if any, or interest on, the Notes when the same shall be due
and payable.
ARTICLE EIGHT
MODIFICATION AND WAIVER
SECTION 8.01. Without Consent of Holders.
The Company and the Trustee may modify and amend this
Indenture or any Security Document without the consent of any Holder (including
entering into the Security Documents upon the date of Release), for any of the
following purposes:
(i) to cure any ambiguity, omission, defect or inconsistency
in this Indenture or any Security Document;
(ii) to comply with Sections 5.01 and 5.02;
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(iii) to provide for uncertificated Notes, in addition to or
in place of certificated Notes;
(iv) to add additional Guarantees with respect to the Notes;
(v) to secure the Notes under this Indenture;
(vi) to add to the covenants of the Company or the Guarantors
for the benefit of the Holders of the Notes or to surrender any right
or power conferred upon the Company or the Guarantors;
(vii) to make any change that does not adversely affect the
rights of any Holder of the Notes;
(viii) to comply with any requirement of the Commission in
connection with the qualification of this Indenture under the Trust
Indenture Act;
(ix) to provide for the issuance of Additional Notes in
accordance with this Indenture, including the issuance of Additional
Notes as restricted securities under the Securities Act and
substantially identical Additional Notes pursuant to an Exchange Offer
registered with the Commission; or
(x) to evidence and provide the acceptance of the appointment
of a successor Trustee under Section 7.09.
SECTION 8.02. With Consent of Holders.
(a) This Indenture may be amended with the consent of the
registered Holders of a majority in aggregate principal amount of the Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange offer for Notes) and any past default or compliance with any provisions
may also be waived (except a default in the payment of principal, premium or
interest and under Section 8.02(b) below) with the consent of the registered
Holders of at least a majority in aggregate principal amount of the Notes then
outstanding.
(b) However, without the consent of each Holder of an
outstanding Note, no amendment may,
(1) reduce the amount of Notes whose holders must consent to
an amendment, supplement or waiver,
(2) reduce the rate of or change the time for payment of
interest on any Note,
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(3) reduce the principal of or change the Stated Maturity of
any Note,
(4) make any Note payable in money other than that stated in
the Note,
(5) impair the right of any Holder of the Notes to receive
payment of principal of and interest on such Holder's Notes on or after
the due dates therefor or to institute suit for the enforcement of any
payment on or with respect to such Holder's Notes or the Notes
Guarantees,
(6) (A) release any Guarantor that is a Significant Subsidiary
from its obligations under the Guarantee or this Indenture other than
pursuant to the terms of this Indenture, or (B) release any security
interest that may have been granted in favor of the Holders of the
Notes pursuant to Section 4.11 other than pursuant to the terms of this
Indenture,
(7) modify the provisions of Section 4.08 or the related
definitions at any time on or after the Company is obligated to make a
Change of Control Offer,
(8) prior to the Release, release or modify in any respect the
Lien of the Trustee on the Escrowed Property, or
(9) waive a default in the payment of principal of or premium,
if any, or interest, if any, on the Notes (except as set forth under
Section 6.04).
(c) The consent of the Holders of the Notes shall not be
necessary to approve the particular form of any proposed amendment. It shall be
sufficient if such consent approves the substance of the proposed amendment.
(d) After an amendment that requires the consent of the
Holders of Notes becomes effective, the Company shall mail to each registered
Holder of the Notes at such holder's address appearing in the security register
a notice briefly describing such amendment. However, the failure to give such
notice to all Holders of the Notes, or any defect therein, shall not impair or
affect the validity of the amendment. However, the failure to give such notice
to all Holders of the Notes, or any defect therein, will not impair or affect
the validity of the amendment.
(e) Upon the written request of the Company accompanied by a
board resolution authorizing the execution of any such supplemental indenture,
and upon the receipt by the Trustee of evidence reasonably satisfactory to the
Trustee of the consent of the Holders as aforesaid and upon receipt by the
Trustee of the documents described in Section 8.06, the Trustee shall join with
the Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this
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Indenture, in which case the Trustee may, but shall not be obligated to, enter
into such supplemental indenture.
Without the consent of the requisite lenders under the Credit
Agreement, no amendment may be made to the subordination provisions in Section
10.06 or the requirement set forth in the proviso of the second paragraph under
Section 4.16.
SECTION 8.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes
shall comply with the TIA as then in effect.
SECTION 8.04. Revocation and Effect of Consents.
(a) After an amendment, supplement, waiver or other action
becomes effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note.
(b) 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 preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only such Persons, shall be
entitled to consent to such amendment, supplement, or waiver or 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 unless the consent of the requisite number
of Holders has been obtained.
SECTION 8.05. Notation on or Exchange of Notes.
If an amendment, supplement, or waiver changes the terms of a
Note, the Trustee (in accordance with the specific written direction of the
Company) shall request the Holder of the Note (in accordance with the specific
written direction of the Company) to deliver it to the Trustee. In such case,
the Trustee shall place an appropriate notation on the Note 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 Note shall issue, the Guarantors
shall endorse, and the Trustee shall authenticate a new Note that reflects the
changed terms. Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
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SECTION 8.06. Trustee To Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article Eight if the amendment, supplement or waiver
does not affect the rights, duties, liabilities or immunities of the Trustee. If
it does affect the rights, duties, liabilities or immunities of the Trustee, the
Trustee may, but need not, sign such amendment, supplement or waiver. In signing
or refusing to sign such amendment, supplement or waiver the Trustee shall be
entitled to receive and, subject to Section 7.01, shall be fully protected in
relying upon an Officers' Certificate and an Opinion of Counsel stating, in
addition to the matters required by Section 12.04, that such amendment,
supplement or waiver is authorized or permitted by this Indenture and is a
legal, valid and binding obligation of the Company and the Guarantors,
enforceable against the Company and the Guarantors in accordance with its terms
(subject to customary exceptions).
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. Discharge of Liability on Notes; Defeasance.
(a) This Indenture shall be discharged and shall cease to be
of further effect as to all Notes, and related Guarantees, issued hereunder
when:
(i) either (x) all Notes that have been authenticated, except
lost, stolen or destroyed Notes that have been replaced or paid and
Notes for whose payment money has been deposited in trust and
thereafter repaid to the Company, have been delivered to the Trustee
for cancellation; or (y) all Notes that have not been delivered to the
Trustee for cancellation have become due and payable by reason of the
mailing of a notice of redemption or otherwise or will become due and
payable within one year and the Company has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in trust solely
for the benefit of the Holders, cash in U.S. dollars, non-callable
Government Obligations, or a combination of cash in U.S. dollars and
non-callable Government Obligations, in amounts as will be sufficient
without consideration of any reinvestment of interest, to pay and
discharge the entire indebtedness on the Notes not delivered to the
Trustee for cancellation for principal, premium, if any, and accrued
interest to the date of maturity or redemption;
(ii) no Default or Event of Default has occurred and is
continuing on the date of the deposit;
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(iii) the Company and the Guarantors have paid or caused to be
paid all sums payable by it under this Indenture; and
(iv) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the
payment of the Notes at maturity or the redemption date, as the case
may be.
In addition, the Company shall deliver an Officers' Certificate and an Opinion
of Counsel to the Trustee stating that all conditions precedent to satisfaction
and discharge have been satisfied and at the cost and expense of the Company.
(b) Subject to Sections 9.01(c) and 9.02, the Company may at
any time after Release elect to terminate some or all of its obligations and the
obligations of the Guarantors under the outstanding Notes and this Indenture
(hereinafter, "Legal Defeasance") except for obligations under Sections 2.04,
2.07 and 2.08 and obligations under the TIA. At any time after Release the
Company may terminate its obligations (i) under Sections 4.08, through 4.18,
(ii) under Section 6.01(5), (6), (7) (with respect to Significant Subsidiaries),
(8) or (9) and (iii) under Section 5.01(b)(4) on a date the conditions set forth
in Section 9.02 are satisfied (hereinafter, "Covenant Defeasance") and
thereafter, any omission to comply with any covenant referred to in clause (ii)
above will not constitute a Default or an Event of Default with respect to the
Notes. The Company may exercise its Legal Defeasance option notwithstanding its
prior exercise of its Covenant Defeasance option.
(c) If the Company exercises its Legal Defeasance option,
payment of the Notes may not be accelerated because of an Event of Default with
respect thereto. If the Company exercises its Covenant Defeasance option,
payment of the Notes may not be accelerated because of an Event of Default as
described in Section 6.01(3) (insofar as such Event of Default applies to
obligations under Section 5.01(b)(4)), under Section 6.01(4) (insofar as such
Event of Default applies to obligations under Sections 4.08 through 4.18), under
Sections 6.01(5), (6), (7) (in the case of Sections 6.01(6) and (7), with
respect to Significant Subsidiaries only) or under Section 6.01(8) or the
failure of the Company to comply with Section 5.01(b)(5). If the Company
exercises its Legal Defeasance option, each Guarantor, if any, shall be released
from all its obligations under its Guarantee, and the Trustee shall execute a
release of such Guarantee. If the Company exercises its Covenant Defeasance
option, each Guarantor, if any, shall be released from its obligations under its
Guarantee to the extent that the Company is released from its obligations under
this Indenture.
(d) Upon satisfaction of the conditions set forth herein and
upon request of the Company, the Trustee shall acknowledge in writing the
discharge of those obligations that the Company terminates.
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(e) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.04, 2.06, 2.07, 2.08, 7.07, 9.05, 9.06 and 9.08 shall
survive until such time as the Notes have been paid in full. Thereafter, the
Company's obligations in Sections 7.07, 9.05 and 9.06 shall survive.
SECTION 9.02. Conditions to Defeasance.
The Legal Defeasance option or the Covenant Defeasance option,
in Section 9.01 may be exercised only after Release if:
(a) the Company irrevocably deposits in trust with the Trustee
money or Government Obligations, or a combination thereof, for the payment of
principal of and interest on the Notes to maturity or redemption, as the case
may be;
(b) the Company delivers to the Trustee a certificate from an
internationally recognized firm of independent certified public accountants
expressing their opinion that the payments of principal, premium, if any, and
interest when due and without reinvestment on the deposited Government
Obligations plus any deposited money without investment will provide cash at
such times and in such amounts as will be sufficient to pay principal, premium,
if any, and interest when due on all the Notes to maturity or redemption, as the
case may be;
(c) 123 days pass after the deposit is made and during the
123-day period no Default described in Section 6.01(7) occurs with respect to
the Company or any other Person making such deposit which is continuing at the
end of the period;
(d) no Default or Event of Default has occurred and is
continuing on the date of such deposit and after giving effect thereto;
(e) such deposit does not constitute a default under any other
material agreement or instrument binding on the Company;
(f) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not constitute, or
is not qualified as, a regulated investment company under the Investment Company
Act of 1940;
(g) in the case of an election of Legal Defeasance under
Section 9.01, the Company delivers to the Trustee an Opinion of Counsel stating
that:
(1) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling; or
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(2) since the date of this Indenture there has been a
change in the applicable U.S. Federal income tax law,
to the effect, in either case, that, and based thereon such Opinion of Counsel
shall confirm that, the Holders of the Notes will not recognize income, gain or
loss for U.S. Federal income tax purposes as a result of such Legal Defeasance
election and will be subject to U.S. Federal income tax on the same amounts, in
the same manner and at the same time as would have been the case if such
election has not occurred;
(h) in the case of an election of Covenant Defeasance under
Section 9.01, the Company delivers to the Trustee an Opinion of Counsel to the
effect that the Holders of the Notes will not recognize income, gain or loss for
U.S. Federal income tax purposes as a result of such Covenant Defeasance and
will be subject to U.S. Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such election had
not occurred; and
(i) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to an election under 9.01 have been complied with as required by this
Indenture.
SECTION 9.03. Deposited Money and Government Obligations To Be Held in Trust;
Other Miscellaneous Provisions.
All money and Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 9.02(a) in respect of
the outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent, to the Holders of such Notes, of
all sums due and to become due thereon in respect of principal, premium, if any,
and accrued interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company and the Guarantors shall (on a joint and several
basis) pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the Government Obligations deposited pursuant to
Section 9.02(a) or the principal, premium, if any, and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the outstanding Notes.
Anything in this Article Nine to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon a request
of the Company any money or Government Obligations held by it as provided in
Section 9.02(a) which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
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thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent Legal Defeasance
or Covenant Defeasance.
SECTION 9.04. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
Government Obligations in accordance with Section 9.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's and each Guarantor's obligations under this Indenture, the Notes and
the Guarantees shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Nine until such time as the Trustee or Paying Agent is
permitted to apply all such money or Government Obligations in accordance with
Section 9.01; provided that if the Company or the Guarantors have made any
payment of principal of, premium, if any, or accrued interest on any Notes
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 Notes to receive such payment from the money or Government Obligations
held by the Trustee or Paying Agent.
SECTION 9.05. Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this
Indenture, all moneys then held by any Paying Agent under the provisions of this
Indenture shall, upon written demand of the Company, be paid to the Trustee, or
if sufficient moneys have been deposited pursuant to Section 9.02(a), to the
Company upon a request of the Company (or, if such moneys had been deposited by
the Guarantors, to such Guarantors), and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
SECTION 9.06. Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent or
then held by the Company or the Guarantors in trust for the payment of the
principal of, or premium, if any, or interest on any Note that are not applied
but remain unclaimed by the Holder of such Note for two years after the date
upon which the principal of, or premium, if any, or interest on such Note shall
have respectively become due and payable shall be repaid to the Company (or, if
appropriate, the Guarantors) upon a request of the Company, or if such moneys
are then held by the Company or the Guarantors in trust, such moneys shall be
released from such trust; and the Holder of such Note entitled to receive such
payment shall thereafter, as an unsecured general creditor, look only to the
Company and the Guarantors for the payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money shall thereupon
cease; provided that the Trustee or any such Paying Agent, before being required
to make any such repayment, may, at the expense of the Company and the
Guarantors, either mail to each Holder affected, at the address shown in the
register of the Notes maintained by the Registrar
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pursuant to Section 2.04, or cause to be published once a week for two
successive weeks, in a newspaper published in the English language, customarily
published each Business Day and of general circulation in the City of
New York,
New York, a 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, any unclaimed balance of such moneys then remaining will
be repaid to the Company. After payment to the Company or the Guarantors or the
release of any money held in trust by the Company or any Guarantors, as the case
may be, Holders entitled to the money must look only to the Company and the
Guarantors for payment as general creditors unless applicable abandoned property
law designates another Person.
ARTICLE TEN
GUARANTEE OF SECURITIES
SECTION 10.01. Guarantee.
Prior to the Release, the Notes will not be guaranteed. From
and after the Release and subject to the provisions of this Article Ten, the
Obligations of the Company pursuant to the Notes and this Indenture will be
fully and unconditionally, jointly and severally guaranteed (A) on an unsecured
senior basis, by each Parent (the "Parent Guarantees"), Xxxxx XX (the "Xxxxx XX
Guarantee"), Xxxxxxx (the "Xxxxxxx Guarantee" and together with the Xxxxx XX
Guarantee, the "Sister Guarantees") and each Guarantor organized under the laws
of any State in the United States or in Canada or any province or territory
thereof (the "NA Subsidiary Guarantees" and collectively with the Parent
Guarantees and the Sister Guarantees, the "Senior Guarantees") and (B) on an
unsecured senior basis, other than subordination of the obligations of such
Guarantor to all obligations of such Guarantor under, or with respect to, Senior
Credit Facility Debt, by each Subsidiary Guarantor that is a Subsidiary
Guarantor organized outside the United States or Canada (the "Subordinated
Subsidiary Guarantees" and, together with the Senior Guarantees, the
"Guarantees"), upon execution of a Release Date Supplemental Indenture guarantee
to each Holder (i) the due and punctual payment of the principal of and interest
on each Note, when and as the same shall become due and payable, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal of and interest on the Notes, to the extent lawful, and
the due and punctual payment of all other obligations and due and punctual
performance of all obligations of the Company to the Holders or the Trustee all
in accordance with the terms of such Note, this Indenture and the Registration
Rights Agreement, and (ii) in the case of any extension of time of payment or
renewal of any Notes 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, at stated maturity, by acceleration or otherwise. From and
after the Release, each Guarantor, by execution of the Release Date Supplemental
Indenture, agrees that its obligations
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hereunder shall be absolute and unconditional, irrespective of, and shall be
unaffected by, any invalidity, irregularity or unenforceability of any such Note
or this Indenture, any failure to enforce the provisions of any such Note, this
Indenture or the Registration Rights Agreement, any waiver, modification or
indulgence granted to the Company with respect thereto by the Holder of such
Note, or any other circumstances which may otherwise constitute a legal or
equitable discharge of a surety or such Guarantor.
Each Guarantor hereby waives diligence, presentment, demand
for payment, filing of claims with a court in the event of merger or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest or notice with respect to any such Note or the Debt evidenced thereby
and all demands whatsoever, and covenants that this Guarantee will not be
discharged as to any such Note except by payment in full of the principal
thereof and interest thereon. Each Guarantor hereby agrees that, as between such
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
(i) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article Six for the purposes of this Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby, and (ii) in the event of any declaration of
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 this Guarantee.
The Guarantee of any Guarantor may be released pursuant to
Section 4.16 or Section 10.03.
The Guarantors shall have the right to seek contribution from
any non-paying Guarantor so long as the exercise of such right does not impair
the rights of any Holder under the Guarantees.
SECTION 10.02. Execution and Delivery of Guarantee.
To further evidence the Guarantee set forth in Section 10.01,
each Guarantor hereby agrees, on the date of the Release, that a notation of
such Guarantee, substantially in the form included in Exhibit F hereto, shall be
endorsed on each Note authenticated and delivered by the Trustee on the date of
the Release and such Guarantee shall be executed by either manual or facsimile
signature of an Officer or an Officer of a general partner, as the case may be,
of each Guarantor. The validity and enforceability of any Guarantee shall not be
affected by the fact that it is not affixed to any particular Note.
Each of the Guarantors hereby agrees that its Guarantee set
forth in Section 10.01 shall be in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Guarantee.
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If an Officer of a Guarantor whose signature is on this
Indenture or a Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which such Guarantee is endorsed or at any time
thereafter, such Guarantor's Guarantee of such Note shall be valid nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of any Guarantee
set forth in this Indenture on behalf of the Guarantor.
SECTION 10.03. Release of Guarantors.
The Guarantee of any Guarantor will be automatically and
unconditionally released and discharged upon any of the following:
(A) in connection with the sale of (i) that number of shares of
Capital Stock of such Subsidiary Guarantor such that
Subsidiary Guarantor is no longer a Subsidiary of the Company
or another Restricted Subsidiary or (ii) all or substantially
all of the assets of such Subsidiary Guarantor to a Person
that is not the Company, Parent or another Restricted
Subsidiary of the Company; provided that such sale complies
with Section 4.12; or
(B) the designation of such Guarantor as an Unrestricted
Subsidiary in accordance with the provisions of this
Indenture;
and in each such case, the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with and that such release is authorized and permitted hereunder.
In addition, in the event a Subsidiary becomes a Subsidiary
Guarantor solely because it guarantees other Debt, then upon the full and
unconditional release of the guarantee of such other Debt (provided that the
Trustee is given 90 days' written notice of such other release) such Subsidiary
Guarantee of such Subsidiary Guarantor shall also be released.
The Trustee shall execute any documents reasonably requested
by either the Company or a Guarantor in order to evidence the release of such
Guarantor from its obligations under its Guarantee endorsed on the Notes and
under this Article Ten.
SECTION 10.04. Waiver of Subrogation.
Until all of the obligations under the Notes and the
Guarantees are satisfied in full, each Guarantor hereby irrevocably waives any
claim or other rights which it may now or
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hereafter acquire against the Company that arise from the existence, payment,
performance or enforcement of such Guarantor's obligations under its 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 Notes 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 Note 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 Notes shall not have been paid in full, such amount shall have been
deemed to have been paid to such Guarantor for the benefit of, and held in trust
for the benefit of, the Holders of the Notes, and shall forthwith be paid to the
Trustee for the benefit of such Holders to be credited and applied upon the
Notes, whether matured or unmatured, 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 10.04 is knowingly made in contemplation of
such benefits.
SECTION 10.05. Notice to Trustee.
The Company or any Guarantor shall give prompt written notice
to the Trustee of any fact known to the Company or any such Guarantor which
would prohibit the making of any payment to or by the Trustee at its Corporate
Trust Office in respect of the Guarantees. Notwithstanding the provisions of
this Article Ten or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Guarantees, unless
and until the Trustee shall have received written notice thereof from the
Company no later than one Business Day prior to such payment; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
this Section 10.05, and subject to the provisions of Sections 7.01 and 7.02,
shall be entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice referred to in
this Section 10.05 at least one Business Day prior to the date upon which by the
terms hereof any such payment may become payable for any purpose under this
Indenture (including, without limitation, the payment of the principal of,
premium, if any, or interest on any Note), then, anything herein contained to
the contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it less than one Business Day prior to such date.
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SECTION 10.06. Subordination of Subordinated Subsidiary Guarantees
(a) The obligations of a Subsidiary Guarantor with respect to its
Subordinated Subsidiary Guarantee will be subordinate in right of payment to the
prior payment in full in cash or cash equivalents of all obligations of such
Subsidiary Guarantor under or with respect to Senior Credit Facility Debt. The
terms of the subordination provisions provided by this Section 10.06 apply to
any Subsidiary Guarantor's obligations under the Subordinated Subsidiary
Guarantee of such Subsidiary Guarantor. Notwithstanding anything contained
herein to the contrary, neither the Trustee nor the Holders of the Notes may
receive or accept payments under a Subordinated Subsidiary Guarantee at a time
when they are not entitled to receive payment under the Notes.
(b) Only obligations under or with respect to Senior Credit Facility
Debt will rank senior in right of payment to the relevant Subordinated
Subsidiary Guarantee in accordance with the provisions of this Indenture. The
Subordinated Subsidiary Guarantees will in all respects rank senior in right of
payment to all other subordinated Debt of the Company, either Parent Guarantor
and the Subsidiary Guarantors.
(c) A Subsidiary Guarantor will not be permitted to pay on a
Subordinated Subsidiary Guarantee (collectively, "pay the Subordinated
Subsidiary Guarantee") if:
(1) a payment default on obligations under or with respect to
Senior Credit Facility Debt (including upon any acceleration of the
maturity thereof) occurs and is continuing; or
(2) any other default on obligations under or with respect to
Senior Credit Facility Debt occurs that permits holders of obligations
under or with respect to Senior Credit Facility Debt to accelerate the
maturity thereof and the Trustee receives a notice of such default (a
"Payment Blockage Notice") from the Representative of any Designated
Senior Debt.
Payments on a Subordinated Subsidiary Guarantee may and shall be
resumed:
(1) in the case of a payment default upon the date on which
such default is cured or waived or will have ceased to exist; and
(2) in the case of a nonpayment default upon the earlier of
(x) the date on which such nonpayment default is cured or waived or
will have ceased to exist (so long as no other default as in clause
(c)(2) above exists) and (y) 180 days after the date on which the
applicable Payment Blockage Notice is received.
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(d) No new Payment Blockage Notice may be delivered unless and until
360 days have elapsed since the effectiveness of the immediately prior Payment
Blockage Notice.
(e) No known Default (other than a payment default) that existed upon
the commencement of a Payment Blockage Notice (whether or not such Event of
Default is on the same obligations under or with respect to Senior Credit
Facility Debt) shall be made the basis for the commencement of any other Payment
Blockage Notice, unless such default has been cured or waived or will have
ceased to exist for a period of not less than 90 consecutive days subsequent to
the commencement of such initial Payment Blockage Notice (it being acknowledged
that any subsequent action, or any breach of any financial covenants for a
period commencing after the date of such Payment Blockage Notice that, in either
case, would give rise to an Event of Default pursuant to any provisions under
which an Event of Default previously existed or was continuing shall constitute
a new Event of Default for this purpose).
(f) Upon any payment or distribution of the assets of any Subsidiary
Guarantor that has given a Subordinated Subsidiary Guarantee or its property
upon a total or partial liquidation or dissolution or reorganization of or
similar proceeding relating to such Subsidiary Guarantor or its Property:
(1) the holders of obligations under or with respect to Senior
Credit Facility Debt will be entitled to receive payment in full in
cash or cash equivalents of all such obligations under or with respect
to Senior Credit Facility Debt (including interest accruing after the
commencement of any bankruptcy or other like proceeding at the rate
specified in the applicable obligations under or with respect to Senior
Credit Facility Debt, whether or not such interest is an allowed claim
in any such proceeding) before the holders of the Notes are entitled to
receive any payment;
(2) until the obligations under or with respect to Senior
Credit Facility Debt are paid in full, in cash or cash equivalents, any
payment or distribution to which Holders of the Notes would be entitled
but for the subordination provisions of this Indenture will be made to
holders of such obligations under or with respect to Senior Credit
Facility Debt as their interests may appear; and
(3) if a distribution is made to Holders of the Notes that,
due to the subordination provisions, should not have been made to them,
such holders of the Notes are required to hold it in trust for the
holders of obligations under or with respect to Senior Credit Facility
Debt and pay it over to them as their interests may appear.
(g) Unsecured Debt is not deemed to be subordinate or junior to secured
Debt merely because it is unsecured or receives priority in respect of asset
sales, cash flows or other prepayments and Debt which has different security or
different priorities in the same security will not be deemed subordinate or
junior to secured Debt no matter what the differences are.
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(h) If payment or distribution of the Notes is accelerated because of
an Event of Default, the Company or the Trustee shall promptly notify the
holders of obligations under, or with respect to, Senior Credit Facility Debt or
the Representative of such holders of the acceleration.
(i) No provision contained in this Indenture or the Notes will affect
the Company's obligation, which is absolute and unconditional, to pay the Notes
when due. The subordination provisions of this Indenture and the Notes will not
prevent the occurrence of any Default or Event of Default under the indenture or
limit the rights of the Trustee or any holder to pursue any other rights or
remedies with respect to the Notes.
(j) By reason of the subordination provisions contained in this
Indenture, in the event of a liquidation or insolvency proceeding, creditors of
the Company, a Parent or a Subsidiary Guarantor who are holders of obligations
under or with respect to Senior Credit Facility Debt may recover more, ratably,
than the holders of the Notes, and the creditors of the Company, a Parent or a
Subsidiary Guarantor who are not Holders of obligations under or with respect to
Senior Credit Facility Debt may recover less, ratably, than Holders of
obligations under or with respect to Senior Credit Facility Debt.
(k) The terms of the subordination provisions described above will not
apply to payments from money or of Government Obligations, or a combination
thereof, held in trust by the Trustee for the payment of principal of and
interest on the Notes pursuant to Section 9.02.
ARTICLE ELEVEN
SECURITY DOCUMENTS
SECTION 11.01. Security Documents.
Prior to the Release, the due and punctual payment of the
principal of and interest on the Notes when and as the same shall be due and
payable, whether on an Interest Payment Date, at maturity, by acceleration,
repurchase, redemption, special redemption or otherwise, and interest on the
overdue principal of and interest on the Notes and performance of all other
obligations of the Company and the Guarantors to the Holders or the Trustee
under this Indenture and the Notes, according to the terms hereunder or
thereunder, shall be secured as provided in the Security Documents. Each Holder,
by its acceptance of the Notes, consents and agrees to the terms of the Security
Documents (including, without limitation, the provisions providing for
foreclosure and release of Collateral) as the same may be in effect or may be
amended from time to time in accordance with their terms. The Company shall
deliver to the Trustee copies of all documents delivered to the Securities
Intermediary pursuant to the
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Security Documents, and shall do or cause to be done all such acts and things as
may be necessary or proper, or as may be required by the provisions of the
Security Documents, to assure and confirm to the Trustee the security interest
in the Collateral contemplated hereby, by the Security Documents or any part
thereof, as from time to time constituted, so as to render the same available
for the security and benefit of this Indenture and of the Notes secured thereby,
according to the intent and purposes herein and therein expressed. The Company
shall take any and all actions reasonably required to cause the Security
Documents to create and maintain, as security for the obligations of the Company
hereunder, a valid and enforceable perfected lien on and security interest in
all the Collateral, in favor of the Securities Intermediary for the benefit of
the Holders and other Persons for whose benefit the Securities Intermediary or
Trustee, as applicable, acts pursuant to the Security Documents.
SECTION 11.02. Recording and Opinions.
The Company shall take or cause to be taken all action
required to perfect, maintain, preserve and protect the Lien on and security
interest in the Collateral granted by the Security Documents. For the avoidance
of doubt, no Lien (other than that of the Trustee on behalf of the Holders)
shall be permitted to exist on the Collateral. The Company shall from time to
time promptly pay all financing, continuation statement and mortgage recording,
registration and/or filing fees, charges and taxes relating to this Indenture
and the Security Documents, any amendments thereto and any other instruments of
further assurance required hereunder or pursuant to the Security Documents. The
Trustee shall have no obligation to, nor shall it be responsible for any failure
to, so register, file or record.
SECTION 11.03. Release of Collateral.
(a) Collateral may (and, as applicable, shall) be released or
substituted only in accordance with the terms of the Security Documents.
(b) The release of any Collateral from the terms of this
Indenture and the Security Documents shall not be deemed to impair the security
under this Indenture in contravention of the provisions hereof if and to the
extent the Collateral is released pursuant to the terms of the Security
Documents.
SECTION 11.04. Certificates of the Company.
To the extent applicable, the Company shall comply with TIA
Section 313(b), relating to reports, and TIA Section 314(d), relating to the
release of property or securities from the lien and security interest of the
Security Documents and relating to the substitution therefor of any property or
securities to be subjected to the lien and security interest of the Security
Documents. Any certificate or opinion required by TIA Section 314(d) may be made
by an Officer of the Company except in cases where TIA Section 314(d) requires
that such certificate or opinion be
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made by an independent Person, which Person shall be an independent engineer,
appraiser or other expert selected or approved by the Collateral Agent in the
exercise of reasonable care.
SECTION 11.05. Certificates of the Trustee.
In the event that the Company wishes to release Collateral in
accordance with the Security Documents and has delivered the certificates and
documents required by the Security Documents and Sections 11.03 and 11.04
hereof, the Trustee shall determine whether it has received all documentation
required by TIA Section 314(d) in connection with such release and, based on the
Opinion of Counsel delivered pursuant to Section 12.04(2), shall deliver a
certificate to the Collateral Agent setting forth such determination. The
Trustee, however, shall have no duty to confirm the legality or validity of such
documents, its sole duty being to certify that it has received such
documentation which on their face conform to Section 314(d) of the TIA.
SECTION 11.06. Authorization of Actions To Be Taken by the Trustee Under the
Security Documents.
Subject to the provisions of Sections 7.01 and 7.02 hereof,
the Trustee shall without the consent of the Holders of Notes, direct, on behalf
of the Holders of Notes, the Securities Intermediary to take all actions it
deems necessary or appropriate in order to (a) enforce any of the terms of the
Security Documents and (b) collect and receive any and all amounts payable in
respect of the obligations of the Company hereunder. The Trustee shall have
power to institute and maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Collateral by any acts that may be
unlawful or in violation of the Security Documents or this Indenture, and such
suits and proceedings as the Trustee may deem expedient to preserve or protect
its interests and the interests of the Holders in the Collateral (including
power to institute and maintain suits or proceedings to restrain the enforcement
of or compliance with any legislative or other governmental enactment, rule or
order that may be unconstitutional or otherwise invalid if the enforcement of,
or compliance with, such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of the Holders or to the
Trustee).
SECTION 11.07. Authorization of Receipt of Funds by the Trustee Under the
Security Documents.
The Trustee is authorized to receive any funds for the benefit
of the Holders distributed under the Security Documents, and to make further
distributions of such funds to the Holders according to the provisions of this
Indenture and the Security Documents.
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SECTION 11.08. Termination of Security Interest.
Upon the consummation of (x) the Acquisition and Release or
(y) the Special Mandatory Redemption, the Trustee shall deliver a certificate to
the Securities Intermediary stating that such obligations have been paid in
full.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control. If any provision of
this Indenture modifies any TIA provision that may be so modified, such TIA
provision shall be deemed to apply to this Indenture as so modified. If any
provision of this Indenture excludes any TIA provision that may be so excluded,
such TIA provision shall be excluded from this Indenture.
The provisions of TIA Sections 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
SECTION 12.02. Notices.
Except for notice or communications to Holders, any notice or
communication shall be given in writing and when received if delivered in
person, when receipt is acknowledged if sent by facsimile, on the next Business
Day if timely delivered by a nationally recognized courier service that
guarantees overnight delivery or two Business Days after deposit if mailed by
first-class mail, postage prepaid, addressed as follows:
If to the Company:
Xxxxx North America Finance Inc.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
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With a copy to:
Xxxxx Corporation Limited
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Fax: (000) 000-0000
If to the Trustee, Registrar or Paying Agent:
Mailing Address:
Bank One, N.A.
1 Bank Xxx Xxxxx, Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn.: Corporate Trust Administration
Fax: (000) 000-0000
Such notices or communications shall be effective when
received and shall be sufficiently given if so given within the time prescribed
in this Indenture.
The Company, the Guarantors or the Trustee by written notice
to the others may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed to a Holder shall be mailed
to him by first-class mail, postage prepaid, at his address shown on the
register kept by the Registrar.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders. If
a notice or communication to a Holder is mailed in the manner provided above, it
shall be deemed duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service,
or by reason of any other cause, it shall be impossible to mail any notice as
required by this Indenture, then such
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method of notification as shall be made with the approval of the Trustee shall
constitute a sufficient mailing of such notice.
SECTION 12.03. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Guarantors, the Trustee, the Registrar and anyone else shall
have the protection of TIA Section 312(c).
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any
Guarantor to the Trustee to take any action under this Indenture (except for the
issuance of Notes on the Issue Date), if so requested by the Trustee, the
Company or such Guarantor shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 12.05 below) 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 (which shall include statements to a
similar effect as those set forth in Section 12.05 below) stating that,
in the opinion of such counsel, all such conditions precedent have been
complied with (to the extent such conditions precedent involve legal
conclusions).
SECTION 12.05. Statements Required in Certificate and Opinion.
Each certificate (other than certificates pursuant to Section
4.06) with respect to compliance by or on behalf of the Company or any Guarantor
with a condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, it or he
has made such examination or investigation as is necessary to enable it
or him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
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(4) a statement as to whether or not, in the opinion of such
Person, such covenant or condition has been complied with.
SECTION 12.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or
meetings of Holders. The Registrar and Paying Agent may make reasonable rules
for their functions.
SECTION 12.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or other day on
which (i) commercial banks in the City of
New York are authorized or required by
law to close or (ii) the New York Stock Exchange is not open for trading. If a
payment date is a Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
SECTION 12.08. Governing Law.
This Indenture, the Notes and the Guarantees shall 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.
SECTION 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan, security or debt agreement of the Company, Xxxxx or any Subsidiary of
Xxxxx. No such indenture, loan, security or debt agreement may be used to
interpret this Indenture.
SECTION 12.10. Successors.
All agreements of the Company and the Guarantors in this
Indenture and the Notes shall bind their respective successors. All agreements
of the Trustee, any additional trustee and any Paying Agents in this Indenture
shall bind its successor.
SECTION 12.11. Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture.
Each signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
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SECTION 12.12. Consent To Jurisdiction And Service Of Process.
(a) Each Guarantor that is organized outside of the United
States irrevocably consents to the non-exclusive jurisdiction of the courts of
the State of New York and the courts of the United States of America located in
the Borough of Manhattan, City and State of New York over any suit, action or
proceeding with respect to this Indenture, the transactions contemplated hereby,
the Notes or the Guarantees and for actions brought under federal or state
securities laws. The Company waives any objection that it may have to the venue
of any suit, action or proceeding with respect to this Indenture, the
transactions contemplated hereby, the Notes or the Guarantees or federal or
state securities laws in the courts of the State of New York or the courts of
the United States of America, in each case, located in the Borough of Manhattan,
City and State of New York, or that such suit, action or proceeding brought in
the courts of the State of New York or the United States of America, in each
case, located in the Borough of Manhattan, City and State of New York was
brought in an inconvenient court and agrees not to plead or claim the same.
(b) Each Guarantor that is organized outside of the United
States irrevocably appoints Xxxxx XX, as its authorized agent in the State of
New York upon which process may be served in any such suit or proceedings, and
agrees that service of process upon such agent, and written notice of said
service to Xxxxx XX, by the person serving the same to the address stipulated
pursuant to Section 12.02, shall be deemed in every respect effective service of
process upon the Company in any such proceeding. Each Guarantor that is
organized outside of the United States further agrees to take any and all action
as may be necessary to maintain such designation and appointment of such agent
in full force and effect for a period of 10 years from the date of this
Indenture.
SECTION 12.13. Conversion of Currency.
The Company covenants and agrees that the following provisions
shall apply to conversion of currency in the case of the Notes and this
Indenture:
(a) (i) If, for the purpose of obtaining judgment in, or
enforcing the judgment of, any court in any country, it becomes necessary to
convert into a currency (the "judgment currency") an amount due in any other
currency (the "Base Currency"), then the conversion shall be made at the rate of
exchange prevailing on the Business Day before the day on which the judgment is
given or the order of enforcement is made, as the case may be (unless a court
shall otherwise determine).
(ii) If there is a change in the rate of exchange prevailing
between the Business Day before the day on which the judgment is given or an
order of enforcement is made, as the case may be (or such other date as a court
shall determine), and the date of receipt of the amount due, the Company will
pay such additional (or, as the case may be, such
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lesser) amount, if any, as may be necessary so that the amount paid in the
judgment currency when converted at the rate of exchange prevailing on the date
of receipt will produce the amount in the Base Currency originally due.
(b) In the event of the winding-up of the Company at any time
while any amount or damages owing under the Notes and this Indenture, or any
judgment or order rendered in respect thereof, shall remain outstanding, the
Company shall indemnify and hold the Holders and the Trustee harmless against
any deficiency arising or resulting from any variation in rates of exchange
between (1) the date as of which the equivalent of the amount in U.S. Dollars or
Canadian Dollars, as the case may be, due or contingently due under the Notes
and this Indenture (other than under this Subsection (b)) is calculated for the
purposes of such winding-up and (2) the final date for the filing of proofs of
claim in such winding-up. For the purpose of this Subsection (b), the final date
for the filing of proofs of claim in the winding-up of the Company shall be the
date fixed by the liquidator or otherwise in accordance with the relevant
provisions of applicable law as being the latest practicable date as at which
liabilities of the Company may be ascertained for such winding-up prior to
payment by the liquidator or otherwise in respect thereto.
(c) The obligations contained in Subsections (a)(ii) and (b)
of this Section 12.13 shall constitute obligations of the Company separate and
independent from its other respective obligations under the Notes and this
Indenture, shall give rise to separate and independent causes of action against
the Company, shall apply irrespective of any waiver or extension granted by any
Holder or the Trustee or any of them from time to time and shall continue in
full force and effect notwithstanding any judgment or order or the filing of any
proof of claim in the winding-up of the Company for a liquidated sum in respect
of amounts due hereunder (other than under Subsection (b) above) or under any
such judgment or order. Any such deficiency as aforesaid shall be deemed to
constitute a loss suffered by the Holders or the Trustee, as the case may be,
and no proof or evidence of any actual loss shall be required by the Company or
the liquidator or otherwise any of them. In the case of Subsection (b) above,
the amount of such deficiency shall not be deemed to be reduced by any variation
in rates of exchange occurring between the said final date and the date of any
liquidating distribution.
(d) The term "rate(s) of exchange" shall mean the rate of
exchange quoted by [INSERT NAME OF XXXXX'X PRINCIPAL COMMERCIAL BANK] at its
central foreign exchange desk at its head office in NEW YORK at 12:00 noon NEW
YORK time for purchases of the Base Currency with the judgment currency other
than the Base Currency referred to in Subsections (a) and (b) above and includes
any premiums and costs of exchange payable.
(e) The Trustee shall have no duty or liability with respect
to monitoring or enforcing this Section 12.13.
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SECTION 12.14. Currency Equivalent.
Except as provided in Section 12.13, for purposes of the
construction of the terms of this Indenture or of the Notes, in the event that
any amount is stated herein in the currency of one nation (the "First
Currency"), as of any date such amount shall also be deemed to represent the
amount in the currency of any other relevant nation which is required to
purchase such amount in the First Currency at the rate of exchange quoted by
[INSERT NAME OF XXXXX'X PRINCIPAL COMMERCIAL BANK] at its central foreign
exchange desk at its head office in NEW YORK at 12:00 noon NEW YORK time on the
date of determination.
SECTION 12.15. 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, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 12.16. Separability.
Each provision of this Indenture shall be considered separable
and if for any reason any provision which is not essential to the effectuation
of the basic purpose of this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed all as of the date and year first written above.
XXXXX NORTH AMERICA FINANCE INC.
By:
--------------------------------------
Name:
Title:
S-1
BANK ONE, N.A., as Trustee
By:
--------------------------------------
Name:
Title:
S-2
EXHIBIT A
CUSIP
XXXXX NORTH AMERICA FINANCE INC.
No. $
$ 7-7/8% SENIOR NOTE DUE 0000
XXXXX XXXXX XXXXXXX FINANCE INC, a Delaware corporation, as
issuer (the "Company"), for value received, promises to pay to CEDE & CO. or
registered assigns the principal sum of [ ] on January 15, 2011.
Interest Payment Dates: January 15 and July 15.
Record Dates: January 1 and July 1.
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
A-1
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by one of its duly authorized officers.
XXXXX NORTH AMERICA FINANCE INC
By:
--------------------------------------
Name:
Title:
A-2
Certificate of Authentication
This is one of the 7-7/8% Notes due 2011 referred to in the
within-mentioned Indenture.
BANK ONE, N.A., as Trustee
By:
--------------------------------------
Dated:
A-3
[FORM OF REVERSE OF NOTE]
XXXXX NORTH AMERICA FINANCE INC.
7-7/8% SENIOR NOTE DUE 2011
1. Interest. XXXXX NORTH AMERICA FINANCE INC., a Delaware
corporation, as issuer (the "Company"), promises to pay, until the principal
hereof is paid or made available for payment, interest on the principal amount
set forth on the face hereof at a rate of 7-7/8% per annum. Interest hereon will
accrue from and including the most recent date to which interest has been paid
or, if no interest has been paid, from and including March 14, 2003 to but
excluding the date on which interest is paid. Interest shall be payable in
arrears on each January 15 and July 15, commencing July 15, 2003. Interest will
be computed on the basis of a 360-day year comprised of twelve 30-day months and
actual days elapsed. For the purposes of the Interest Act (Canada), the yearly
rate of interest which is equivalent to the rate payable hereunder is the rate
multiplied by the actual number of days in the year and divided by 360. The
Company shall pay interest on overdue principal and on overdue interest (to the
full extent permitted by law) at the rate borne by the Notes.
2. Method of Payment. The Company will pay interest hereon
(except defaulted interest) to the Persons who are registered Holders at the
close of business on January 1 or July 1 immediately preceding the interest
payment date (whether or not a Business Day). Holders must surrender Notes to a
Paying Agent to collect principal payments. The Company will pay to the Paying
Agent principal and interest in money of the United States of America that at
the time of payment is legal tender for payment of public and private debts. If
a Holder has given wire transfer instructions to the Company, the Company may
pay, or cause to be paid by the Paying Agent, all principal, interest and
Additional Interest, if any, on that Holder's Notes in accordance with those
instructions. All other payments on the Notes will be made at the office or
agency of the Paying Agent and Registrar unless the Company elects to make
interest payments by check mailed to the Holders at their address set forth in
the register of Holders.
3. Paying Agent and Registrar. Initially, Bank One, N.A. (the
"Trustee") will act as a Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice to the Holders. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
4. Indenture. The Company issued the Notes under an Indenture
dated as of March 14, 2003 (the "Indenture") between the Company and the
Trustee. This is one of an issue of Notes of the Company issued, or to be
issued, under the Indenture. The terms of the Notes 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. Code Sections 77aaa-77bbbb), as amended from time
to
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time. The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of them. Capitalized and certain other
terms used herein and not otherwise defined have the meanings set forth in the
Indenture.
5. Optional Redemption. (a) Except as set forth below, the
Notes will not be redeemable at the option of the Company prior to January 15,
2007. Thereafter, the Notes will be redeemable, at the Company's option, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' prior notice, at the following redemption prices (expressed
in percentages of principal amount), plus accrued and unpaid interest, if any,
to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date), if redeemed during the 12-month period commencing on January 15 of the
years set forth below and are expressed as percentages of principal amount:
Redemption
Redemption Year Price
--------------- ----------
2007................................................. 103.938%
2008................................................. 101.969%
2009 and thereafter.................................. 100.000%
(b) From and after the Release, and from time to time on or
prior to January 15, 2006, the Company may at its option on any one or more
occasions redeem Notes in an aggregate principal amount up to a maximum of 40%
of the aggregate principal amount of Notes issued under the Indenture at a
redemption price of 107.875% of the principal amount thereof, plus accrued and
unpaid interest thereon, if any, to the redemption date, subject to the rights
of the holders of record on the relevant record date to receive interest due on
the relevant interest payment date, with the proceeds of one or more Qualified
Equity Offerings; provided that:
(1) at least 60% of the aggregate principal amount of Notes
issued under the Indenture prior to such redemption date remains
outstanding immediately after giving effect to any such redemption; and
(2) the redemption occurs within 90 days' of the date of such
Qualified Equity Offering upon not less than 30 nor more than 60 days'
prior notice.
(c) At any time on or prior to January 15, 2007, the Notes may
also be redeemed or purchased, by or on behalf of the Company, in whole but not
in part, at the Company's option, upon the occurrence of a Change of Control, at
a 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 or purchase (the "Redemption Date") (subject to the right of holders
of record on the relevant record date to receive interest due on the relevant
interest payment date). Such redemption or purchase may be made upon notice
mailed by first-class
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mail to each holder's registered address, not less than 30 nor more than 60 days
prior to the Redemption Date (but in no event more than 90 days after the
occurrence of such Change of Control). The Company may provide in such notice
that payment of such price and performance of the Company's obligations with
respect to such redemption or purchase may be performed by another Person. Any
such notice may be given prior to the occurrence of the related Change of
Control, but any such redemption or purchase or notice is subject to the
occurrence of the related Change of Control and may, at the Company's
discretion, be subject to the satisfaction of one or more conditions precedent.
"Applicable Premium" means, with respect to a Note at any
Redemption Date, the excess of (A) the present value at such Redemption Date of
(1) the redemption price of such Note on January 15, 2007 (such redemption price
being that described in (a) above) plus (2) all required remaining scheduled
interest payments due on such Notes through January 15, 2007, computed using a
discount rate equal to the Treasury Rate plus 50 basis points over (B) the
principal amount of such Note on such Redemption Date. Calculation of the
Applicable Premium will be made by the Company or on behalf of the Company by
such Person as the Company shall designate.
"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 January 15, 2007; provided, however, that if the period from such Redemption
Date to January 15, 2007 is not equal to the constant maturity of the United
States Treasury security for which a weekly average yield is given, the Treasury
Rate shall be obtained by linear interpolation (calculated to the nearest
one-twelfth of a year) from the weekly average yields of United States Treasury
securities for which such yields are given, except that if the period from such
Redemption Date to January 15, 2007 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.
Any notice to holders of Notes of a redemption hereunder needs
to include the appropriate calculation of the redemption price, but does not
need to include the redemption price itself. The actual redemption price,
calculated as described above, must be set forth in an Officers' Certificate of
the Company delivered to the Trustee no later than two Business Days prior to
the redemption date.
(d) If Xxxxx becomes obligated to pay any Additional Amounts
(to the extent such Additional Amounts exceed the Additional Amounts that would
have been payable by Xxxxx under the laws or regulations of Canada or any
Canadian taxing authority or under any official position regarding the
application or interpretation thereof, in either case existing on the Issue
Date) because of a change in the laws or regulations of Canada or any Canadian
A-6
taxing authority, or a change in any official position regarding the application
or interpretation thereof, that is publicly announced or becomes effective on or
after the Issue Date, the Company may, at any time after 30 days following
written notice to the Holders informing them of Xxxxx'x obligations and their
ability to waive compliance with Section 4.20, redeem all, but not part, of the
Notes at a price equal to 100% of the principal amount thereof, plus accrued and
unpaid interest and special interest, if any, to the redemption date; provided
that at any time that the aggregate principal amount of the Notes outstanding is
greater than $20 million, any holder of the Notes may, to the extent that it
does not adversely affect Xxxxx'x after-tax position, at its option, waive such
Canadian Guarantor's compliance with the covenant described under Section 4.20;
provided, further, that if any Holder waives this compliance, Xxxxx may not
redeem that Holder's Notes pursuant to this paragraph.
(e) The Trustee will select Notes called for redemption
pursuant to this paragraph 5 on a pro rata basis, by lot or by such method as
the Trustee in its sole discretion shall deem fair and appropriate; provided
that no Notes of $1,000 or less shall be redeemed in part. A new Note in
principal amount equal to the unredeemed portion thereof will be issued in the
name of the Holder thereof upon cancellation of the original Note. Notes called
for redemption pursuant to this paragraph 5 and paragraph 7 hereto become due on
the date fixed for redemption. On and after the redemption date, interest stops
accruing on Notes or portions of them called for redemption.
6. Special Mandatory Redemption. In the event that the Release
has not occurred on or prior to 5:00 p.m., New York City time, on the Deadline,
the Company shall, on a day that is not more than ten Business Days following
the Deadline (the "Special Mandatory Redemption Date") redeem all of the Notes
(the "Special Mandatory Redemption") at a redemption price equal to the sum of
(a) $400,174,970 plus (b) the accrued and unpaid interest on the Notes from and
including the Issue Date or if Interest has been paid on the Notes, the last
date to which interest has been paid preceding the Special Mandatory Redemption
Date, to but excluding the Special Mandatory Redemption Date. The "Deadline" is
August 31, 2003 or such earlier date that Xxxxx determines not to pursue
consummation of the Acquisition.
7. Notice of Redemption. Except in the case of Special
Mandatory Redemption, notices of redemption shall be mailed by first class mail
at least 30 but not more than 60 days before the redemption date to each Holder
of Notes to be redeemed at its registered address. Notices of redemption may not
be conditional. If any Note is to be redeemed in part only, the notice of
redemption that relates to such Note shall state the portion of the principal
amount thereof to be redeemed. Notice of the Special Mandatory Redemption will
be mailed promptly to each Holder of Notes at its registered address, the
Trustee and the Securities Intermediary.
8. Offers To Purchase. The Indenture provides that upon the
occurrence of a Change of Control or an Asset Sale and subject to further
limitations contained therein,
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the Company shall make an offer to purchase outstanding Notes in accordance with
the procedures set forth in the Indenture.
9. Registration Rights. (a) Pursuant to a registration rights
agreement among the Company, from and after the Release, the Guarantors and the
Initial Purchasers named therein (the "Registration Rights Agreement"), the
Company will be obligated to consummate an exchange offer (the "Exchange Offer")
pursuant to which the Holder of this Note shall have the right to exchange this
Note for Notes which have been registered under the Securities Act, in like
principal amount and having substantially identical terms as the Notes. (b) If
(i) within 210 days after the issue date of the Notes, the Exchange Offer
Registration Statement, has not been filed with the Commission; (ii) within 270
days after the issue date of the Notes, the Exchange Offer Registration
Statement, has not been declared effective; (iii) within 300 days after the
issue date of the Notes, the Exchange Offer has not been consummated; or (iv)
after either the Exchange Offer Registration Statement or the Shelf Registration
Statement has been declared effective, such Registration Statement thereafter
ceases to be effective or useable (subject, in the case of the Shelf
Registration Statement, to the exceptions set forth in the Registration Rights
Agreement) in connection with resales of the Notes or Exchange Securities in
accordance with and during the periods specified in Sections 2 and 3 of the
Registration Rights Agreement (each such event referred to in clauses (i)
through (iv), a "Registration Default"), additional interest ("Additional
Interest") will accrue on the Notes and the Exchange Securities (in addition to
the stated interest on the Notes and the Exchange Securities) from and including
the date on which any such Registration Default shall occur to but excluding the
date on which all Registration Defaults have been cured. Additional Interest
will accrue at an initial rate of 0.25% per annum of the aggregate principal
amount of the Notes during the 90-day period immediately following the
occurrence of any Registration Default and shall increase by 0.25% per annum
which rate shall increase by 0.25% per annum for each subsequent 90-day period
during which such Registration Default continues, up to a maximum of 1.00% per
annum.
10. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. A Holder may transfer or exchange Notes in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay to it any
taxes and fees required by law or permitted by the Indenture.
11. Persons Deemed Owners. The registered Holder of this Note
may be treated as the owner of this Note for all purposes.
12. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee or Paying Agent will pay
the money back to the Company at its written request. After that, Holders
entitled to the money must look to the Company for payment as general creditors
unless an "abandoned property" law designates another Person.
A-8
13. Amendment, Supplement, Waiver, Etc. The Company, the
Guarantors, if any, and the Trustee (if a party thereto) may, without the
consent of the Holders of any outstanding Notes, amend, waive or supplement the
Indenture or the Notes for certain specified purposes, including, among other
things, curing ambiguities, defects or inconsistencies, maintaining the
qualification of the Indenture under the Trust Indenture Act of 1939, as
amended, providing for the assumption by a successor to the Company of its
obligations under the Indenture or any Security Documents and making any change
that does not materially and adversely affect the rights of any Holder. Other
amendments and modifications of the Indenture or the Notes may be made by the
Company, the Guarantors, if any, and the Trustee with the consent of the Holders
of not less than a majority of the aggregate principal amount of the outstanding
Notes, subject to certain exceptions requiring the consent of the Holders of the
particular Notes to be affected.
14. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company, the Guarantors and the Restricted
Subsidiaries to, among other things, incur additional Debt, pay dividends on,
redeem or repurchase its Capital Stock, make certain investments, sell assets,
create restrictions on the payment of dividends or other amounts to the Company
from its Restricted Subsidiaries, enter into transactions with Affiliates,
expand into unrelated businesses, create liens, consolidate, merge or sell all
or substantially all of the assets of the Company, the Guarantors and the
Restricted Subsidiaries and requires the Company to provide reports to Holders
of the Notes. Such limitations are subject to a number of important
qualifications and exceptions. Pursuant to Section 4.06 of the Indenture, the
Company must annually report to the Trustee on compliance with such limitations.
15. Successor Corporation. When a successor corporation
assumes all the obligations of its predecessor under the Notes and the Indenture
and the transaction complies with the terms of Article Five of the Indenture,
the predecessor corporation will, except as provided in Article Five, be
released from those obligations.
16. Defaults and Remedies. Events of Default are set forth in
the Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than an Event of Default specified in Sections 6.01(6) and
6.01(7) of the Indenture) occurs and is continuing, then, and in each and every
such case, either the Trustee, by notice in writing to the Company, or the
Holders of not less than 25% of the principal amount of the Notes then
outstanding, by notice in writing to the Company and the Trustee, may, and the
Trustee at the request of such Holders shall, declare due and payable, if not
already due and payable, the principal of and any accrued and unpaid interest on
all of the Notes; and upon any such declaration all such amounts upon such Notes
shall become and be immediately due and payable, anything in the Indenture or in
the Notes to the contrary notwithstanding. If an Event of Default specified in
Sections 6.01(6) and 6.01(7) of the Indenture occurs, then the principal of and
any accrued and unpaid interest on all of the Notes shall immediately become due
and payable without any declaration or other act on the part of the Trustee or
any Holder. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee
A-9
may require indemnity satisfactory to it before it enforces the Indenture or the
Notes. Subject to certain limitations, Holders of a majority in principal amount
of the then outstanding Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders notice of any continuing
default (except a default in payment of principal, premium, if any, or interest
on the Notes or a default in the observance or performance of any of the
obligations of the Company under Article Five of the Indenture) if it determines
that withholding notice is in their best interests.
17. Trustee Dealings with Company. Subject to certain
limitations imposed by the Trust Indenture Act, the Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
18. No Recourse Against Others. No past, present or future
director, officer, employee, incorporator, agent, member or stockholder or
Affiliate of the Company, as such, shall have any liability for any obligations
of the Company under the Notes, the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. No past,
present or future director, officer, employee, incorporator, agent or
stockholder or Affiliate of any of the Guarantors, as such, shall have any
liability for any obligations of the Guarantors under the Guarantees, the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes and Guarantees by accepting
a Note and a Guarantee waives and releases all such liabilities. The waiver and
release are part of the consideration for issuance of the Notes and the
Guarantees.
19. Discharge. The Company's obligations pursuant to the
Indenture will be discharged, except for obligations pursuant to certain
sections thereof, subject to the terms of the Indenture, upon the payment of all
the Notes or upon the irrevocable deposit with the Trustee of United States
dollars or Government Obligations sufficient to pay when due principal of and
interest on the Notes to maturity or redemption, as the case may be.
20. Guarantees. From and after the date of the Release, the
Notes will be entitled to the benefits of certain Guarantees made for the
benefit of the Holders. Reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and
obligations thereunder of the Guarantors, the Trustee and the Holders.
21. Authentication. This Note shall not be valid until the
Trustee signs the certificate of authentication on the other side of this Note.
22. Governing Law. THIS NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, 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. The
Trustee, the Company and the
A-10
Guarantors agree to submit to the jurisdiction of the courts of the State of New
York in any action or proceeding arising out of or relating to the Indenture or
the Notes.
23. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TENANT
(= 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).
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
Xxxxx North America Finance Inc.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: General Counsel
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxx Corporation Limited
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: General Counsel
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
A-11
ASSIGNMENT
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
Agent to transfer this Note on the books of the Company. The
Agent may substitute another to act for him.
Date: Your Signature:
------------------ ----------------------------------
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee:
------------------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.
A-12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note
purchased by the Company pursuant to Section 4.08 or Section 4.12 of the
Indenture, check the appropriate box:
| Section 4.08 | Section 4.12
If you want to have only part of the Note purchased by the
Company pursuant to Section 4.08 or Section 4.12 of the Indenture, state the
amount you elect to have purchased:
$
--------------------------------
(multiple of $1,000)
Date:
----------------------------
Your Signature:
-------------------------------------
(Sign exactly as your name appears on
the face of this Note)
---------------------------------
Signature Guaranteed
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.
A-13
EXHIBIT B
[FORM OF LEGEND FOR 144A SECURITIES AND OTHER SECURITIES THAT ARE
RESTRICTED SECURITIES]
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB") OR (B) IT IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT.
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES
ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE SECURITIES ACT, (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY), OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH
CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED
STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
B-1
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE GOVERNING THIS NOTE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF
THIS NOTE IN VIOLATION OF THE FOREGOING.
B-2
[FORM OF ASSIGNMENT FOR 144A SECURITIES AND OTHER SECURITIES THAT
ARE
RESTRICTED SECURITIES]
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
Agent to transfer this Note on the books of the Company. The
Agent may substitute another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act provided by Rule 144A
thereunder.
or
[ ] (b) this Note is being transferred other than in
accordance with (a) above and documents are being furnished which comply with
the conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or
Registrar shall not be obligated to register this Note in the name of any person
other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Sections 2.16 and 2.17 of the
Indenture shall have been satisfied.
Date: Your Signature:
------------------------ ----------------------------------
(Sign exactly as your name
appears on the face of this Note)
Signature Guarantee:
------------------------------------------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.
B-3
TO BE COMPLETED BY TRANSFEROR IF (a) ABOVE IS CHECKED
The transfer is being effected pursuant to and in accordance
with Rule 144A under the Securities Act, and, accordingly, the transferor hereby
further certifies that the beneficial interest or certificated Note is being
transferred to a Person that the transferor reasonably believed and believes is
purchasing the beneficial interest or certificated Note for its own account, or
for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A and such transfer is in compliance with any
applicable securities laws of any state of the United States. Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or certificated Note will be subject to the
restrictions on transfer enumerated on the Rule 144A Notes and/or the
certificated Note and in the Indenture and the Securities Act.
Dated:
---------------------- -----------------------------------------
NOTICE: To be executed by an executive
officer
B-4
EXHIBIT C
[FORM OF LEGEND FOR REGULATION S NOTE]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND, UNLESS SO REGISTERED, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS UNLESS REGISTERED UNDER THE ACT OR EXCEPT PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE ACT.
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB") OR (B) IT IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT.
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES
ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE SECURITIES ACT, (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY), OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH
CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND
C-1
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED
STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE GOVERNING THIS NOTE CONTAINS A PROVISION REQUIRING
THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING.
C-2
[FORM OF ASSIGNMENT FOR REGULATION S NOTE]
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
Agent to transfer this Note on the books of the Company. The
Agent may substitute another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act provided by Regulation S
thereunder.
or
[ ] (b) this Note is being transferred other than in
accordance with (a) above and documents are being furnished which comply with
the conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or
Registrar shall not be obligated to register this Note in the name of any person
other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Sections 2.16 and 2.17 of the
Indenture shall have been satisfied.
Date: Your Signature:
----------------------- ----------------------------------
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee:
------------------------------------------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.
C-3
TO BE COMPLETED BY TRANSFEROR IF (a) ABOVE IS CHECKED
The transfer is being effected pursuant to and in accordance
with Rule 903 or Rule 904 under the Securities Act and, accordingly, the
transferor hereby further certifies that (i) the transfer is not being made to a
person in the United States and (x) at the time the buy order was originated,
the transferee was outside the United States or such transferor and any Person
acting on its behalf reasonably believed and believes that the transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the restricted period under Regulation S, the transfer is not
being made to a U.S. Person or for the account or benefit of a U.S. Person
(other than an initial purchaser). Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or certificated Note will be subject to the restrictions on transfer enumerated
on the Regulation S Notes and/or the certificated Note and in the Indenture and
the Securities Act.
Dated:
---------------------- -----------------------------------------
NOTICE: To be executed by an executive
officer
C-4
EXHIBIT D
[FORM OF LEGEND FOR GLOBAL NOTE]
Any Global Note authenticated and delivered hereunder shall
bear a legend (which would be in addition to any other legends required in the
case of a Restricted Note) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES 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 NOTE
(OTHER THAN A TRANSFER OF THIS NOTE 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 LIMITED 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 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.
D-1
EXHIBIT E
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
Bank One, N.A.
1 Bank One Plaza, Mail Code IL1-0430
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Re: Xxxxx North America Finance Inc., a Delaware corporation,
as issuer (the "Company"), 7-7/8% Notes Due 2011
(the "Notes")
Dear Sirs:
In connection with our proposed sale of $__________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a U.S. person or 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 off-shore securities market and neither
we nor any person acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 904(a) of
Regulation S;
(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 Notes.
E-1
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[Name of Transferee]
By:
---------------------------------------
E-2
EXHIBIT F
GUARANTEES
From and after the date of the Release, each of the
undersigned (the "Guarantors") hereby jointly and severally unconditionally
guarantees, to the extent set forth in the Indenture dated as of March 14, 2003
by and among Xxxxx North America Finance Inc., a Delaware corporation, as issuer
(the "Company"), the Guarantors, as guarantors, and Bank One, N.A., as Trustee
(as amended, restated or supplemented from time to time, the "Indenture"), and
subject to the provisions of the Indenture, (a) the due and punctual payment of
the principal of, and premium, if any, and interest on the Notes, when and as
the same shall become due and payable, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on overdue principal of, and
premium and, to the extent permitted by law, interest, 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 (b) in case of any extension of time of payment or renewal of any
Notes 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.
The obligations of the Guarantors to the Holders and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Article Ten of the Indenture, and reference is hereby made to the Indenture for
the precise terms and limitations of this Guarantee. Each Holder of the Note to
which this Guarantee is endorsed, by accepting such Note, agrees to and shall be
bound by such provisions.
Each Guarantee will be limited to an amount not to exceed the
maximum amount that can be guaranteed by such Guarantor after giving effect to
all of its other contingent and fixed liabilities without rendering such
Guarantee, as it relates to such Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
[Signatures on Following Pages]
F-1
IN WITNESS WHEREOF, each of the Guarantors has caused this
Guarantee to be signed by a duly authorized officer.
[ ], as Guarantor
By:
------------------------------------
Name:
Title:
F-2
EXHIBIT G
[FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR]
Xxxxx North America Finance Inc.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Bank One, N.A.
1 Bank One Plaza, Mail Code IL1-0430
Xxxxxxx, Xxxxxxxx 00000-0000
Re: 7-7/8% SENIOR NOTES DUE 2011
Reference is hereby made to the Indenture, dated as of [ ],
2003 (the "Indenture"), between Xxxxx North America Finance Inc., as issuer (the
"Company"), and Bank One, N.A., as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________
aggregate principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or
any interest therein 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 Notes or any
interest therein except in compliance with, such restrictions and
conditions and the United States Securities Act of 1933, as amended
(the "Securities Act").
2. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes and any
interest therein may not be offered or sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any
accounts for which we are acting as hereinafter stated, that if we
should sell the Notes or any interest therein, prior to the expiration
of the holding period applicable to sales of the Notes under Rule
144(k) of the Securities Act, we will
G-1
do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified
institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to
you and to the Company a signed letter substantially in the form of
this letter and, if such transfer is in respect of a principal amount
of Notes, at the time of transfer of less than $250,000, an Opinion of
Counsel in form reasonably acceptable to the Company to the effect that
such transfer is in compliance with the Securities Act, (D) outside the
United States in accordance with Rule 904 of Regulation S under the
Securities Act, (E) pursuant to the provisions of Rule 144(k) under the
Securities Act or (F) pursuant to an effective registration statement
under the Securities Act, and we further agree to provide to any person
purchasing the Definitive Note or beneficial interest in a Global Note
from us in a transaction meeting the requirements of clauses (A)
through (E) of this paragraph a notice advising such purchaser that
resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and
the Company such certifications, legal opinions and other information
as you and the Company may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions. We further
understand that the Notes purchased by us will bear a legend to the
foregoing effect. We further understand that any subsequent transfer by
us of the Notes or beneficial interest therein acquired by us must be
effected through one of the Placement Agents.
4. 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 Notes, and we and any accounts for which we are
acting are each able to bear the economic risk of our or its
investment.
5. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each
of which is an institutional "accredited investor") as to each of which
we exercise sole investment discretion.
G-2
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.
------------------------------------
[Insert Name of Transferor]
By:
---------------------------------
Name:
Title:
Dated: _____________, _____
G-3
